Revised Ortega Lecture Notes I

REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 2
CRIMINAL LAW GENERALITY
Criminal law is that branch of Generality of criminal law means that

municipal law which defines crimes, the criminal law of the country
treats of their nature and provides for governs all persons within the country
their punishment. regardless of their race, belief, sex, or
creed. However, it is subject to
It is that branch of public substantive certain exceptions brought about by
law which defines offenses and international agreement.
prescribes their penalties. It is Ambassadors, chiefs of states and
substantive because it defines the other diplomatic officials are immune
state’s right to inflict punishment and from the application of penal laws
the liability of the offenders. It is when they are in the country where
public law because it deals with the they are assigned.
relation of the individual with the
state. Note that consuls are not diplomatic
officers. This includes consul-general,
vice-consul or any consul in a foreign
Limitations on the power of country, who are therefore, not
Congress to enact penal laws immune to the operation or
application of the penal law of the
1. Must be general in application. country where they are assigned.
Consuls are subject to the penal laws
2. Must not partake of the nature of the country where they are
of an ex post facto law. assigned.
3. Must not partake of the nature It has no reference to territory.

of a bill of attainder. Whenever you are asked to explain
this, it does not include territory. It
4. Must not impose cruel and refers to persons that may be
unusual punishment or governed by the penal law.
excessive fines.
TERRITORIALITY
Characteristics of Criminal Law
Territoriality means that the penal
1. Generality laws of the country have force and
effect only within its territory. It
2. Territoriality cannot penalize crimes committed
outside the same. This is subject to
3. Prospectivity. certain exceptions brought about by
international agreements and
practice. The territory of the country
is not limited to the land where its committed there, under the
sovereignty resides but includes also International Law Rule, what law will
its maritime and interior waters as apply?
well as its atmosphere.
The law of the country where
Terrestrial jurisdiction is the that vessel is registered will apply,
jurisdiction exercised over land. because the crime is deemed to have
been committed in the high seas.
Fluvial jurisdiction is the jurisdiction
exercised over maritime and interior
waters. Under the Archipelagic Rule as
declared in Article 1, of the
Aerial jurisdiction is the jurisdiction Constitution, all waters in the
exercised over the atmosphere. archipelago regardless of breadth
width, or dimension are part of our
national territory. Under this Rule,
The Archipelagic Rule there is no more center lane, all these
waters, regardless of their dimension
All bodies of water comprising the or width are part of Philippine
maritime zone and interior waters territory.
abounding different islands
comprising the Philippine Archipelago So if a foreign merchant vessel is in
are part of the Philippine territory the center lane and a crime was
regardless of their breadth, depth, committed, the crime will be
width or dimension. prosecuted before Philippine courts.
On the fluvial jurisdiction there is

presently a departure from the Three international law theories
accepted International Law Rule, on aerial jurisdiction
because the Philippines adopted the
Archipelagic Rule. In the (1) The atmosphere over the
International Law Rule, when a strait country is free and not subject
within a country has a width of more to the jurisdiction of the
than 6 miles, the center lane in subjacent state, except for the
excess of the 3 miles on both sides is protection of its national
considered international waters. security and public order.
Under this theory, if a crime is

Question & Answer committed on board a foreign
aircraft at the atmosphere of a
country, the law of that country
If a foreign merchant vessel is does not govern unless the
in the center lane and a crime was
crime affects the national Acts or omissions will only be subject

security. to a penal law if they are committed
after a penal law had already taken
(2) Relative Theory – The subjacent effect. Vice-versa, this act or
state exercises jurisdiction over omission which has been committed
its atmosphere only to the before the effectivity of a penal law
extent that it can effectively could not be penalized by such penal
exercise control thereof. The law because penal laws operate only
Relative Theory prospectively.
Under this theory, if a crime In some textbooks, an exemption is

was committed on an aircraft said to exist when the penal law is
which is already beyond the favorable to the offender, in which
control of the subjacent state, case it would have retroactive
the criminal law of that state application; provided that the
will not govern anymore. But if offender is not a habitual delinquent
the crime is committed in an and there is no provision in the law
aircraft within the atmosphere against its retroactive application.
over a subjacent state which
exercises control, then its The exception where a penal law may
criminal law will govern. be given retroactive application is true
only with a repealing law. If it is an
(3) Absolute Theory – The original penal law, that exception can
subjacent state has complete never operate. What is contemplated
jurisdiction over the atmosphere by the exception is that there is an
above it subject only to original law and there is a repealing
innocent passage by aircraft of law repealing the original law. It is
foreign country. the repealing law that may be given
retroactive application to those who
Under this theory, if the crime is violated the original law, if the
committed in an aircraft, no repealing penal law is more favorable
matter how high, as long as it to the offender who violated the
can establish that it is within original law. If there is only one
the Philippine atmosphere, penal law, it can never be given
Philippine criminal law will retroactive effect.
govern. This is the theory
adopted by the Philippines.
Rule of prospectivity also applies
to administrative rulings and
PROSPECTIVITY circulars
This is also called irretrospectivity. In Co v. CA, decided on October

28, 1993, it was held that the
principle of prospectivity of statutes Total or absolute, or partial or

also applies to administrative rulings relative repeal. -- As to the effect of
and circulars. In this case, Circular repeal of penal law to the liability of
No. 4 of the Ministry of Justice, dated offender, qualify your answer by
December 15, 1981, provides that saying whether the repeal is absolute
“where the check is issued as part of or total or whether the repeal is
an arrangement to guarantee or partial or relative only.
secure the payment of an obligation,
whether pre-existing or not, the A repeal is absolute or total when the
drawer is not criminally liable for crime punished under the repealed
either estafa or violation of BP22.” law has been decriminalized by the
Subsequently, the administrative repeal. Because of the repeal, the act
interpretation of was reversed in or omission which used to be a crime
Circular No. 12, issued on August 8, is no longer a crime. An example is
1984, such that the claim that the Republic Act No. 7363, which
check was issued as a guarantee or decriminalized subversion.
part of an arrangement to secure an
obligation or to facilitate collection, is A repeal is partial or relative when the
no longer a valid defense for the crime punished under the repealed
prosecution of BP22. Hence, it was law continues to be a crime inspite of
ruled in Que v. People that a check the repeal. This means that the
issued merely to guarantee the repeal merely modified the conditions
performance of an obligation is, affecting the crime under the repealed
nevertheless, covered by BP 22. But law. The modification may be
consistent with the principle of prejudicial or beneficial to the
prospectivity, the new doctrine should offender. Hence, the following rule:
not apply to parties who had relied on
the old doctrine and acted on the faith
thereof. No retrospective effect. Consequences if repeal of penal law is
total or absolute
Effect of repeal of penal law to (1) If a case is pending in court

liability of offender involving the violation of the
repealed law, the same shall be
In some commentaries, there are dismissed, even though the
references as to whether the repeal is accused may be a habitual
express or implied. What affects the delinquent. This is so because
criminal liability of an offender is not all persons accused of a crime
whether a penal law is expressly or are presumed innocent until
impliedly repealed; it is whether it is they are convicted by final
absolutely or totally repealed, or judgment. Therefore, the
relatively or partially repealed. accused shall be acquitted.
(2) If a case is already decided and sentence in spite of the fact that
the accused is already serving the law under which he was
sentence by final judgment, if convicted has already been
the convict is not a habitual absolutely repealed. This is so
delinquent, then he will be because penal laws should be
entitled to a release unless given retroactive application to
there is a reservation clause in favor only those who are not
the penal law that it will not habitual delinquents.
apply to those serving sentence
at the time of the repeal. But if
there is no reservation, those
who are not habitual Question & Answer
delinquents even if they are
already serving their sentence
will receive the benefit of the A, a prisoner, learns that he is
repealing law. They are entitled already overstaying in jail because his
to release. jail guard, B, who happens to be a law
student advised him that there is no
This does not mean that if they more legal ground for his continued
are not released, they are free imprisonment, and B told him that he
to escape. If they escape, they can go. A got out of jail and went
commit the crime of evasion of home. Was there any crime
sentence, even if there is no committed?
more legal basis to hold them in
the penitentiary. This is so As far as A, the prisoner who is
because prisoners are serving sentence, is concerned, the
accountabilities of the crime committed is evasion of
government; they are not sentence.
supposed to step out simply
because their sentence has As far as B, the jail guard who
already been, or that the law allowed A to go, is concerned, the
under which they are sentenced crime committed is infidelity in the
has been declared null and void. custody of prisoners.
If they are not discharged from

confinement, a petition for Consequences if repeal of penal law is
habeas corpus should be filed to partial or relative
test the legality of their
continued confinement in jail. (1) If a case is pending in court
involving the violation of the
If the convict, on the other repealed law, and the repealing
hand, is a habitual delinquent, law is more favorable to the
he will continue serving the accused, it shall be the one
applied to him. So whether he

is a habitual delinquent or not,
if the case is still pending in Express or implied repeal. –
court, the repealing law will be Express or implied repeal refers to the
the one to apply unless there is manner the repeal is done.
a saving clause in the repealing
law that it shall not apply to Express repeal takes place when a
pending causes of action. subsequent law contains a provision
that such law repeals an earlier
(2) If a case is already decided and enactment. For example, in Republic
the accused is already serving Act No. 6425 (The Dangerous Drugs
sentence by final judgment, Act of 1972), there is an express
even if the repealing law is provision of repeal of Title V of the
partial or relative, the crime still Revised Penal Code.
remains to be a crime. Those
who are not habitual Implied repeals are not favored. It
delinquents will benefit on the requires a competent court to declare
effect of that repeal, so that if an implied repeal. An implied repeal
the repeal is more lenient to will take place when there is a law on
them, it will be the repealing a particular subject matter and a
law that will henceforth apply to subsequent law is passed also on the
them. same subject matter but is
inconsistent with the first law, such
For example, under the original that the two laws cannot stand
law, the penalty is six years. together, one of the two laws must
Under the repealing law, it is give way. It is the earlier that will
four years. Those convicted give way to the later law because the
under the original law will be later law expresses the recent
subjected to the four-year legislative sentiment. So you can
penalty. This retroactive have an implied repeal when there
application will not be possible if are two inconsistent laws. When the
there is a saving clause that earlier law does not expressly provide
provides that it should not be that it is repealing an earlier law,
given retroactive effect. what has taken place here is implied
repeal. If the two laws can be
Under Article 22, even if the reconciled, the court shall always try
offender is already convicted to avoid an implied repeal. For
and serving sentence, a law example, under Article 9, light
which is beneficial shall be felonies are those infractions of the
applied to him unless he is a law for the commission of which a
habitual delinquent in penalty of arresto mayor or a fine not
accordance with Rule 5 of exceeding P200.00 or both is
Article 62. provided. On the other hand, under
Article 26, a fine whether imposed as These effects of repeal do not apply
a single or an alternative penalty, if it to self-repealing laws or those which
exceeds P6,000.00 but is not less have automatic termination. An
than P 200.00, is considered a example is the Rent Control Law
correctional penalty. These two which is revived by Congress every
articles appear to be inconsistent. So two years.
to harmonize them, the Supreme
Court ruled that if the issue involves When there is a repeal, the repealing
the prescription of the crime, that law expresses the legislative intention
felony will be considered a light felony to do away with such law, and,
and, therefore, prescribes within two therefore, implies a condonation of
months. But if the issue involves the punishment. Such legislative
prescription of the penalty, the fine of intention does not exist in a self-
P200.00 will be considered terminating law because there was no
correctional and it will prescribe repeal at all.
within 10 years. Clearly, the court
avoided the collision between the two
articles. BASIC MAXIMS IN CRIMINAL LAW
Doctrine of Pro Reo
Consequences if repeal of penal law is Whenever a penal law is to be

express or implied construed or applied and the law
admits of two interpretations – one
(1) If a penal law is impliedly lenient to the offender and one strict
repealed, the subsequent repeal to the offender – that interpretation
of the repealing law will revive which is lenient or favorable to the
the original law. So the act or offender will be adopted.
omission which was punished as
a crime under the original law This is in consonance with the
will be revived and the same fundamental rule that all doubts shall
shall again be crimes although be construed in favor of the accused
during the implied repeal they and consistent with presumption of
may not be punishable. innocence of the accused. This is
peculiar only to criminal law.
(2) If the repeal is express, the
repeal of the repealing law will
not revive the first law, so the Question & Answer
act or omission will no longer be
penalized.
One boy was accused of
parricide and was found guilty. This is
punished by reclusion perpetua to though there is no law declaring the

death. Assuming you were the judge, act criminal.
would you give the accused the
benefit of the Indeterminate Sentence Not any law punishing an act or
Law (ISLAW)? The ISLAW does not omission may be valid as a criminal
apply when the penalty imposed is life law. If the law punishing an act is
imprisonment of death. Would you ambiguous, it is null and void.
consider the penalty imposable or the
penalty imposed, taking into
consideration the mitigating Actus non facit reum, nisi mens sit
circumstance of minority? rea
If you will answer "no", then The act cannot be criminal where the
you go against the Doctrine of Pro mind is not criminal. This is true to a
Reo because you can interpret the felony characterized by dolo, but not
ISLAW in a more lenient manner. a felony resulting from culpa. This
Taking into account the doctrine, we maxim is not an absolute one because
interpret the ISLAW to mean that the it is not applied to culpable felonies,
penalty imposable and not the penalty or those that result from negligence.
prescribed by law, since it is more
favorable for the accused to interpret
the law. Utilitarian Theory or Protective
Theory
Nullum crimen, nulla poena sine The primary purpose of the

lege punishment under criminal law is the
protection of society from actual and
There is no crime when there is no potential wrongdoers. The courts,
law punishing the same. This is true therefore, in exacting retribution for
to civil law countries, but not to the wronged society, should direct the
common law countries. punishment to potential or actual
wrongdoers, since criminal law is
Because of this maxim, there is no directed against acts and omissions
common law crime in the Philippines. which the society does not approve.
No matter how wrongful, evil or bad Consistent with this theory, the mala
the act is, if there is no law defining prohibita principle which punishes an
the act, the same is not considered a offense regardless of malice or
crime. criminal intent, should not be utilized
to apply the full harshness of the
Common law crimes are wrongful acts special law.
which the community/society
condemns as contemptible, even In Magno v CA, decided on June
26, 1992, the Supreme Court
acquitted Magno of violation of Batas

Pambansa Blg. 22 when he acted
without malice. The wrongdoer is not Who is Rafael Del Pan?
Magno but the lessor who deposited
the checks. He should have returned He drafted a correctional code which
the checks to Magno when he pulled was after the Spanish Codigo Penal
out the equipment. To convict the was extended to the Philippines. But
accused would defeat the noble that correctional code was never
objective of the law and the law enacted into law. Instead, a
would be tainted with materialism and committee was organized headed by
opportunism. then Anacleto Diaz. This committee
was the one who drafted the present
Revised Penal Code.
DEVELOPMENT OF CRIMINAL LAW
IN THE PHILIPPINES
The present Revised Penal Code
Code of Kalantiao When a committee to draft the

Revised Penal Code was formed, one
If you will be asked about the of the reference that they took hold of
development of criminal law in the was the correctional code of Del Pan.
Philippines, do not start with the In fact, many provisions of the
Revised Penal Code. Under the Code Revised Penal Code were no longer
of Kalantiao, there were penal from the Spanish Penal Code; they
provisions. Under this code, if a man were lifted from the correctional code
would have a relation with a married of Del Pan. So it was him who
woman, she is penalized. Adultery is formulated or paraphrased this
a crime during those days. Even provision making it simpler and more
offending religious things, such as understandable to Filipinos because at
gods, are penalized. The Code of that time, there were only a handful
Kalantiao has certain penal who understood Spanish.
provisions. The Filipinos have their
own set of penology also.
Code of Crimes by Guevarra
Spanish Codigo Penal During the time of President Manuel

Roxas, a code commission was tasked
When the Spanish Colonizers came, to draft a penal code that will be more
the Spanish Codigo Penal was made in keeping with the custom,
applicable and extended to the traditions, traits as well as beliefs of
Philippines by Royal Decree of 1870. the Filipinos. During that time, the
This was made effective in the code committee drafted the so-called
Philippines in July 14, 1876. Code of Crimes. This too, slept in
Congress. It was never enacted into Special Laws

law. Among those who participated in
drafting the Code of Crimes was During Martial Law, there are many
Judge Guellermo Guevarra. Presidential Decrees issued aside from
the special laws passed by the
Since that Code of Crimes was never Philippine Legislature Commission. All
enacted as law, he enacted his own these special laws, which are penal in
code of crimes. But it was the Code character, are part of our Penal Code.
of Crimes that that was presented in
the Batasan as Cabinet Bill no. 2.
Because the code of crimes prepared
by Guevarra was more of a moral
code than a penal code, there were
several oppositions against the code.
Proposed Penal Code of the DIFFERENT PHILOSOPHIES

Philippines UNDERLYING THE CRIMINAL LAW
SYSTEM
Through Assemblyman Estelito
Mendoza, the UP Law Center formed a 1. Classical or Juristic Philosophy
committee which drafted the Penal
Code of the Philippines. This Penal 2. Positivit or Realistic Philosophy
Code of the Philippines was
substituted as Cabinet Bill no. 2 and 3. Ecletic or Mixed Philosophy
this has been discussed in the floor of
the Batasang Pambansa. So the Code
of Crimes now in Congress was not Classical or Juristic Philosophy
the Code of Crimes during the time of
President Roxas. This is a different Best remembered by the maxim “An
one. Cabinet Bill No. 2 is the Penal eye for an eye, a tooth for a tooth.”
Code of the Philippines drafted by a [Note: If you want to impress the
code committee chosen by the UP examiner, use the latin version –
Law Center, one of them was Oculo pro oculo, dente pro dente.]
Professor Ortega. There were seven
members of the code committee. It The purpose of penalty is retribution.
would have been enacted into law it The offender is made to suffer for the
not for the dissolution of the Batasang wrong he has done. There is scant
Pambansa dissolved. The Congress regard for the human element of the
was planning to revive it so that it can crime. The law does not look into
be enacted into law. why the offender committed the
crime. Capital punishment is a
product of this kind of this school of
thought. Man is regarded as a moral This combines both positivist and

creature who understands right from classical thinking. Crimes that are
wrong. So that when he commits a economic and social and nature
wrong, he must be prepared to accept should be dealt with in a positivist
the punishment therefore. manner; thus, the law is more
compassionate. Heinous crimes
should be dealt with in a classical
Positivist or Realistic Philosophy manner; thus, capital punishment.
The purpose of penalty is reformation. Since the Revised Penal Code was
There is great respect for the human adopted from the Spanish Codigo
element because the offender is Penal, which in turn was copied from
regarded as socially sick who needs the French Code of 1810 which is
treatment, not punishment. Cages classical in character, it is said that
are like asylums, jails like hospitals. our Code is also classical. This is no
They are there to segregate the longer true because with the
offenders from the “good” members American occupation of the
of society. Philippines, many provisions of
common law have been engrafted into
From this philosophy came the jury our penal laws. The Revised Penal
system, where the penalty is imposed Code today follows the mixed or
on a case to case basis after eclectic philosophy. For example,
examination of the offender by a intoxication of the offender is
panel of social scientists which do not considered to mitigate his criminal
include lawyers as the panel would liability, unless it is intentional or
not want the law to influence their habitual; the age of the offender is
consideration. considered; and the woman who
killed her child to conceal her
Crimes are regarded as social dishonor has in her favor a mitigating
phenomena which constrain a person circumstance.
to do wrong although not of his own
volition. A tendency towards crime is
the product of one’s environment. MALA IN SE AND MALA
There is no such thing as a natural PROHIBITA
born killer.
Violations of the Revised Penal Code
This philosophy is criticized as being are referred to as malum in se, which
too lenient. literally means, that the act is
inherently evil or bad or per se
wrongful. On the other hand,
Eclectic or Mixed Philosophy violations of special laws are generally
referred to as malum prohibitum.
Note, however, that not all violations In crimes punished under the
of special laws are mala prohibita. Revised Penal Code, the moral
While intentional felonies are always trait of the offender is
mala in se, it does not follow that considered. This is why liability
prohibited acts done in violation of would only arise when there is
special laws are always mala dolo or culpa in the commission
prohibita. Even if the crime is of the punishable act.
punished under a special law, if the
act punished is one which is In crimes punished under
inherently wrong, the same is malum special laws, the moral trait of
in se, and, therefore, good faith and the offender is not considered;
the lack of criminal intent is a valid it is enough that the prohibited
defense; unless it is the product of act was voluntarily done.
criminal negligence or culpa.
2. As to use of good faith as
Likewise when the special laws defense
requires that the punished act be
committed knowingly and willfully, In crimes punished under the
criminal intent is required to be Revised Penal Code, good faith
proved before criminal liability may or lack of criminal intent is a
arise. valid defense; unless the crime
is the result of culpa
When the act penalized is not
inherently wrong, it is wrong only In crimes punished under
because a law punishes the same. special laws, good faith is not a
defense
For example, Presidential Decree No.
532 punishes piracy in Philippine 3. As to degree of accomplishment
waters and the special law punishing of the crime
brigandage in the highways. These
acts are inherently wrong and In crimes punished under the
although they are punished under Revised Penal Code, the degree
special law, the acts themselves are of accomplishment of the crime
mala in se; thus, good faith or lack of is taken into account in
criminal intent is a defense. punishing the offender; thus,
there are attempted, frustrated,
and consummated stages in the
Distinction between crimes punished commission of the crime.
under the Revised Penal Code and
crimes punished under special laws In crimes punished under
special laws, the act gives rise
1. As to moral trait of the offender to a crime only when it is
consummated; there are no accomplice or accessory to

attempted or frustrated stages, consider.
unless the special law expressly
penalize the mere attempt or
frustration of the crime. Questions & Answers
4. As to mitigating and
aggravating circumstances 1. Three hijackers accosted
the pilot of an airplane. They
In crimes punished under the compelled the pilot to change
Revised Penal Code, mitigating destination, but before the same could
and aggravating circumstances be accomplished, the military was
are taken into account in alerted. What was the crime
imposing the penalty since the committed?
moral trait of the offender is
considered. Grave coercion. There is no
such thing as attempted hijacking.
In crimes punished under Under special laws, the penalty is not
special laws, mitigating and imposed unless the act is
aggravating circumstances are consummated. Crimes committed
not taken into account in against the provisions of a special law
imposing the penalty. are penalized only when the
pernicious effects, which such law
5. As to degree of participation seeks to prevent, arise.
In crimes punished under the 2. A mayor awarded a

Revised Penal Code, when there concession to his daughter. She was
is more than one offender, the also the highest bidder. The award
degree of participation of each was even endorsed by the municipal
in the commission of the crime council as the most advantageous to
is taken into account in the municipality. The losing bidder
imposing the penalty; thus, challenged the validity of the contract,
offenders are classified as but the trial court sustained its
principal, accomplice and validity. The case goes to the
accessory. Sandiganbayan and the mayor gets
convicted for violation of Republic Act
In crimes punished under No. 3019 (Anti-Graft and Corrupt
special laws, the degree of Practices Act). He appeals alleging
participation of the offenders is his defenses raised in the
not considered. All who Sandiganbayan that he did not profit
perpetrated the prohibited act from the transaction, that the contract
are penalized to the same was advantageous to the municipality,
extent. There is no principal or
and that he did not act with intent to Analyze the violation: Is it wrong
gain. Rule. because there is a law prohibiting it or
punishing it as such? If you remove
Judgment affirmed. The the law, will the act still be wrong?
contention of the mayor that he did
not profit anything from the If the wording of the law punishing
transaction, that the contract was the crime uses the word “willfully”,
advantageous to the municipality, and then malice must be proven. Where
that he did not act with intent to gain, malice is a factor, good faith is a
is not a defense. The crime involved defense.
is malum prohibitum.
In violation of special law, the act
constituting the crime is a prohibited
In the case of People v. Sunico, an act. Therefore culpa is not a basis of
election registrar was prosecuted for liability, unless the special law
having failed to include in the voter’s punishes an omission.
register the name of a certain voter.
There is a provision in the election law When given a problem, take note if
which proscribes any person from the crime is a violation of the Revised
preventing or disenfranchising a voter Penal Code or a special law.
from casting his vote. In trial, the
election registrar raised as good faith
as a defense. The trial court FELONY, OFFENSE, MISDEMEANOR
convicted him saying that good faith AND CRIME
is not a defense in violation of special
laws. On appeal, it was held by he
Supreme Court that disenfranchising Felony
a voter from casting his vote is not
wrong because there is a provision of A crime under the Revised Penal Code
law declaring it as a crime, but is referred to as a felony. Do not use
because with or without a law, that this term in reference to a violation of
act is wrong. In other words, it is special law.
malum in se. Consequently, good
faith is a defense. Since the
prosecution failed to prove that the
accused acted with malice, he was
acquitted. Offense
A crimes punished under a special law

Test to determine if violation of is called as statutory offense.
special law is malum prohibitum
or malum in se
Misdemeanor
As far as jurisdiction or application of

A minor infraction of the law, such as the Revised Penal Code over crimes
a violation of an ordinance, is referred committed on maritime zones or
to as a misdemeanor. interior waters, the Archipelagic Rule
shall be observed. So the three-mile
limit on our shoreline has been
Crime modified by the rule. Any crime
committed in interior waters
Whether the wrongdoing is punished comprising the Philippine archipelago
under the Revised Penal Code or shall be subject to our laws although
under a special law, the generic word committed on board a foreign
crime can be used. merchant vessel.
A vessel is considered a Philippine

SCOPE OF APPLICATION OF THE ship only when it is registered in
PROVISIONS OF THE REVISED accordance with Philippine laws.
PENAL CODE Under international law, as long as
such vessel is not within the territorial
The provision in Article 2 embraces waters of a foreign country, Philippine
two scopes of applications: laws shall govern.
(1) Intraterritorial – refers to the

application of the Revised Penal Extraterritorial application
Code within the Philippine
territory; Extraterritorial application of the
Revised Penal Code on crime
(2) Extraterritorial – refers to the committed on board Philippine ship or
application of the Revised Penal airship refers only to a situation
Code outside the Philippine where the Philippine ship or airship is
territory. not within the territorial waters or
atmosphere of a foreign country.
Otherwise, it is the foreign country’s
Intraterritorial application criminal law that will apply.
In the intraterritorial application of However, there are two situations

the Revised Penal Code, Article 2 where the foreign country may not
makes it clear that it does not refer apply its criminal law even if a crime
only to Philippine archipelago but it was committed on board a vessel
also includes the atmosphere, interior within its territorial waters and these
waters and maritime zone. So are:
whenever you use the word territory,
do not limit this to land area only. (1) When the crime is committed in
a war vessel of a foreign
country, because war vessels Both the rules apply only to a foreign
are part of the sovereignty of merchant vessel if a crime was
the country to whose naval committed aboard that vessel while it
force they belong; was in the territorial waters of
another country. If that vessel is in
(2) When the foreign country in the high seas or open seas, there is
whose territorial waters the no occasion to apply the two rules. If
crime was committed adopts it is not within the jurisdiction of any
the French Rule, which applies country, these rules will not apply.
only to merchant vessels,
except when the crime
committed affects the national
security or public order of such Question & Answer
foreign country.
A vessel is not registered in the

The French Rule Philippines. A crime is committed
outside Philippine territorial waters.
The French Rule provides that the Then the vessel entered our territory.
nationality of the vessel follows the Will the Revised Penal Code apply?
flag which the vessel flies, unless the
crime committed endangers the Yes. Under the old Rules of
national security of a foreign country Criminal Procedure, for our courts to
where the vessel is within jurisdiction take cognizance of any crime
in which case such foreign country will committed on board a vessel during
never lose jurisdiction over such its voyage, the vessel must be
vessel. registered in the Philippines in
accordance with Philippine laws.
Under the Revised Rules of Criminal
The American or Anglo-Saxon Procedure, however, the requirement
Rule that the vessel must be licensed and
registered in accordance with
This rule strictly enforces the Philippine laws has been deleted from
territoriality of criminal law. The law Section 25, paragraph c of Rule 110
of the foreign country where a foreign of the Rules of Court. The intention is
vessel is within its jurisdiction is to do away with that requirement so
strictly applied, except if the crime that as long as the vessel is not
affects only the internal management registered under the laws of any
of the vessel in which case it is country, our courts can take
subject to the penal law of the cognizance of the crime committed in
country where it is registered. such vessel.
More than this, the revised provision offense in the exercise of their
added the phrase “in accordance with functions:”
generally accepted principles of
International Law”. So the intention As a general rule, the Revised Penal
is clear to adopt generally accepted Code governs only when the crime
principles of international law in the committed pertains to the exercise of
matter of exercising jurisdiction over the public official’s functions, those
crimes committed in a vessel while in having to do with the discharge of
the course of its voyage. Under their duties in a foreign country. The
international law rule, a vessel which functions contemplated are those,
is not registered in accordance with which are, under the law, to be
the laws of any country is considered performed by the public officer in the
a pirate vessel and piracy is a crime Foreign Service of the Philippine
against humanity in general, such government in a foreign country.
that wherever the pirates may go,
they can be prosecuted. Exception: The Revised Penal Code
governs if the crime was committed
Prior to the revision, the crime would within the Philippine Embassy or
not have been prosecutable in our within the embassy grounds in a
court. With the revision, registration foreign country. This is because
is not anymore a requirement and embassy grounds are considered an
replaced with generally accepted extension of sovereignty.
principles of international law. Piracy
is considered a crime against the law Illustration:
of nations.
A Philippine consulate official who is
In your answer, reference should be validly married here in the Philippines
made to the provision of paragraph c and who marries again in a foreign
of Section15 of the Revised Rules of country cannot be prosecuted here for
Criminal Procedure. The crime may bigamy because this is a crime not
be regarded as an act of piracy as connected with his official duties.
long as it is done with “intent to However, if the second marriage was
gain”. celebrated within the Philippine
embassy, he may be prosecuted here,
since it is as if he contracted the
When public officers or employees marriage here in the Philippines.
commit an offense in the exercise
of their functions
The most common subject of bar Question & Answer

problems in Article 2 is paragraph 4:
“While being public officers or
employees, [they] should commit an
A consul was to take a

deposition in a hotel in Singapore. Illustration:
After the deposition, the deponent
approached the consul’s daughter and When a Filipino who is already
requested that certain parts of the married in the Philippines, contracts
deposition be changed in another marriage abroad, the crime
consideration for $10,000.00. The committed is bigamy. But the Filipino
daughter persuaded the consul and can not be prosecuted when he comes
the latter agreed. Will the crime be back to the Philippines, because the
subject to the Revised Penal Code? If bigamy was committed in a foreign
so, what crime or crimes have been country and the crime is not covered
committed? by paragraph 5 of Article 2. However,
if the Filipino, after the second
Yes. Falsification. marriage, returns to the Philippines
and cohabits here with his second
Normally, the taking of the wife, he commits the crime of
deposition is not the function of the concubinage for which he can be
consul, his function being the prosecuted.
promotion of trade and commerce
with another country. Under the The Revised Penal Code shall not
Rules of Court, however, a consul can apply to any other crime committed in
take depositions or letters rogatory. a foreign country which does not
There is, therefore, a definite come under any of the exceptions and
provision of the law making it the which is not a crime against national
consul’s function to take depositions. security.
When he agreed to the falsification of
the deposition, he was doing so as a
public officer in the service of the HOW A FELONY MAY ARISE
Philippine government.
Paragraph 5 of Article 2, use the Punishable by the Revised Penal

phrase “as defined in Title One of Code
Book Two of this Code.”
This is a very important part of the The term felony is limited only to
exception, because Title I of Book 2 violations of the Revised Penal Code.
(crimes against national security) When the crime is punishable under a
does not include rebellion. So if acts special law you do not refer to this as
of rebellion were perpetrated by a felony. So whenever you encounter
Filipinos who were in a foreign the term felony, it is to be understood
country, you cannot give territorial as referring to crimes under the
application to the Revised Penal Code, Revised Penal Code
because Title I of Book 2 does not .
include rebellion.
This is important because there are

certain provisions in the Revised No. It is not under the Revised
Penal Code where the term “felony” is Penal Code.
used, which means that the provision
is not extended to crimes under
special laws. A specific instance is An act or omission
found in Article 160 – Quasi-
Recidivism, which reads: To be considered as a felony there
must be an act or omission; a mere
A person who shall imagination no matter how wrong
commit a felony after does not amount to a felony. An act
having been convicted by refers to any kind of body movement
final judgment, before that produces change in the outside
beginning to serve world. For example, if A, a passenger
sentence or while serving in a jeepney seated in front of a lady,
the same, shall be started putting out his tongue
punished under the suggesting lewdness, that is already
maximum period of the an act in contemplation of criminal
penalty. law. He cannot claim that there was
no crime committed. If A scratches
Note that the word "felony" is used. something, this is already an act
which annoys the lady he may be
accused of unjust vexation, not
malicious mischief.
Questions & Answers
Dolo or culpa
1. If a prisoner who is
serving sentence is found in However, It does not mean that if an
possession of dangerous drugs, can act or omission is punished under the
he be considered a quasi-recidivist? Revised Penal Code, a felony is
already committed. To be considered
No. The violation of Presidential a felony, it must also be done with
Decree No. 6425 (The Dangerous dolo or culpa.
Drugs Act of 1972) is not a felony.
The provision of Article 160 Under Article 3, there is dolo when
specifically refers to a felony and there is deceit. This is no longer true.
felonies are those acts and omissions At the time the Revised Penal Code
punished under the Revised Penal was codified, the term nearest to dolo
Code. was deceit. However, deceit means
fraud, and this is not the meaning of
2. Is illegal possession of dolo.
bladed weapon a felony?
Dolo is deliberate intent otherwise imprudence, lack of foresight or

referred to as criminal intent, and lack of skill;
must be coupled with freedom of
action and intelligence on the part of (2) freedom of action on the part of
the offender as to the act done by the offender, that is, he was not
him. acting under duress; and
The term, therefore, has three (3) Intelligence on the part of the
requisites on the part of the offender: offender in performing the
negligent act.
(1) Criminal intent;
Between dolo and culpa, the
(2) Freedom of action; and distinction lies on the criminal intent
and criminal negligence. If any of
(3) Intelligence. these requisites is absent, there can
be no dolo nor culpa. When there is
If any of these is absent, there is no no dolo or culpa, a felony cannot
dolo. If there is no dolo, there could arise.
be no intentional felony.
Question & Answer

Question & Answer
What do you understand by
What requisites must concur “voluntariness” in criminal law?
before a felony may be committed?
The word voluntariness in
There must be (1) an act or criminal law does not mean acting in
omission; (2) punishable by the one’s own volition. In criminal law,
Revised Penal Code; and (3) the act is voluntariness comprehends the
performed or the omission incurred by concurrence of freedom of action,
means of dolo or culpa. intelligence and the fact that the act
was intentional. In culpable felonies,
there is no voluntariness if either
But although there is no intentional freedom, intelligence or imprudence,
felony, there could be a culpable negligence, lack of foresight or lack of
felony. Culpa requires the skill is lacking. Without voluntariness,
concurrence of three requisites: there can be no dolo or culpa, hence,
there is no felony.
(1) criminal negligence on the part
of the offender , that is, the
crime was the result of In a case decided by the Supreme
negligence, reckless Court, two persons went wild boar
hunting. On their way, they met (1) When the crime is the
Pedro standing by the door of his product of culpa or negligence,
house and they asked him where they reckless imprudence, lack of foresight
could find wild boars. Pedro pointed or lack of skill;
to a place where wild boars were
supposed to be found, and the two (2) When the crime is a
proceeded thereto. Upon getting to prohibited act under a special law or
the place, they saw something what is called malum prohibitum.
moving, they shot, unfortunately the
bullet ricocheted killing Pedro. It was
held that since there was neither dolo Criminal Intent
nor culpa, there is no criminal liability.
Criminal Intent is not deceit. Do not
In US v. Bindoy, accused had an use deceit in translating dolo, because
altercation with X. X snatched the the nearest translation is deliberate
bolo from the accused. To prevent X intent.
from using his bolo on him, accused
tried to get it from X. Upon pulling it In criminal law, intent is categorized
back towards him, he hit someone into two:
from behind, instantly killing the
latter. The accused was found to be (1) General criminal intent; and
not liable. In criminal law, there is
pure accident, and the principle (2) Specific criminal intent.
damnum absque injuria is also
honored. General criminal intent is presumed
from the mere doing of a wrong act.
Even culpable felonies require This does not require proof. The
voluntariness. It does not mean that burden is upon the wrong doer to
if there is no criminal intent, the prove that he acted without such
offender is absolved of criminal criminal intent.
liability, because there is culpa to
consider. Specific criminal intent is not
presumed because it is an ingredient
or element of a crime, like intent to
Question & Answer kill in the crimes of attempted or
frustrated homicide/parricide/murder.
The prosecution has the burden of
May a crime be committed proving the same.
without criminal intent?
Distinction between intent and
Yes. Criminal intent is not discernment
necessary in these cases:
Intent is the determination to do a means he is desirous to kill the

certain thing, an aim or purpose of former suitor. Even if the offender
the mind. It is the design to resolve states that he had no reason to kill
or determination by which a person the victim, this is not criminal intent.
acts. Criminal intent is the means resorted
to by him that brought about the
On the other hand, discernment is the killing. If we equate intent as a state
mental capacity to tell right from of mind, many would escape criminal
wrong. It relates to the moral liability.
significance that a person ascribes to
his act and relates to the intelligence In a case where mother and son were
as an element of dolo, distinct from living in the same house, and the son
intent. got angry and strangled his mother,
the son, when prosecuted for
Distinction between intent and motive parricide, raised the defense that he
had no intent to kill his mother. It
Intent is demonstrated by the use of was held that criminal intent applies
a particular means to bring about a on the strangulation of the vital part
desired result – it is not a state of of the body. Criminal intent is on the
mind or a reason for committing a basis of the act, not on the basis if
crime. what the offender says.
On the other hand, motive implies Look into motive to determine the
motion. It is the moving power which proper crime which can be imputed to
impels one to do an act. When there the accused. If a judge was killed,
is motive in the commission of a determine if the killing has any
crime, it always comes before the relation to the official functions of the
intent. But a crime may be judge in which case the crime would
committed without motive. be direct assault complexed with
murder/homicide, not the other way
If the crime is intentional, it cannot be around. If it has no relation, the
committed without intent. Intent is crime is simply homicide or murder.
manifested by the instrument used by
the offender. The specific criminal Omission is the inaction, the failure to
intent becomes material if the crime perform a positive duty which he is
is to be distinguished from the bound to do. There must be a law
attempted or frustrated stage. For requiring the doing or performing of
example, a husband came home and an act.
found his wife in a pleasant
conversation with a former suitor. Distinction between negligence and
Thereupon, he got a knife. The imprudence
moving force is jealousy. The intent
is the resort to the knife, so that
(1) In negligence, there is of another coupled with the

deficiency of action; employment of intimidation or
violence upon persons or things;
(2) in imprudence, there is remove the employment of force or
deficiency of perception. intimidation and it is not robbery
anymore.
Mens rea
The technical term mens rea is Mistake of fact

sometimes referred to in common
parlance as the gravamen of the When an offender acted out of a
offense. To a layman, that is what misapprehension of fact, it cannot be
you call the “bullseye” of the crime. said that he acted with criminal
This term is used synonymously with intent. Thus, in criminal law, there is
criminal or deliberate intent, but that a “mistake of fact”. When the
is not exactly correct. offender acted out of a mistake of
fact, criminal intent is negated, so do
Mens rea of the crime depends upon not presume that the act was done
the elements of the crime. You can with criminal intent. This is
only detect the mens rea of a crime absolutory if crime involved dolo.
by knowing the particular crime
committed. Without reference to a Mistake of fact would be relevant only
particular crime, this term is when the felony would have been
meaningless. For example, in theft, intentional or through dolo, but not
the mens rea is the taking of the when the felony is a result of culpa.
property of another with intent to When the felony is a product of culpa,
gain. In falsification, the mens rea is do not discuss mistake of fact. When
the effecting of the forgery with intent the felonious act is the product of
to pervert the truth. It is not merely dolo and the accused claimed to have
writing something that is not true; the acted out of mistake of fact, there
intent to pervert the truth must follow should be no culpa in determining the
the performance of the act. real facts, otherwise, he is still
criminally liable, although he acted
In criminal law, we sometimes have out of a mistake of fact. Mistake of
to consider the crime on the basis of fact is only a defense in intentional
intent. For example, attempted or felony but never in culpable felony.
frustrated homicide is distinguished
from physical injuries only by the
intent to kill. Attempted rape is Real concept of culpa
distinguished from acts of
lasciviousness by the intent to have Under Article 3, it is clear that culpa is
sexual intercourse. In robbery, the just a modality by which a felony may
mens rea is the taking of the property be committed. A felony may be
committed or incurred through dolo or Supreme Court pointed out that

culpa. Culpa is just a means by which although the allegation in the
a felony may result. information charged the accused with
an intentional felony, yet the words
In Article 365, you have criminal feloniously and unlawfully, which are
negligence as an omission which the standard languages in an information,
article definitely or specifically covers not only dolo but also culpa
penalized. The concept of criminal because culpa is just a mode of
negligence is the inexcusable lack of committing a felony.
precaution on the part of the person
performing or failing to perform an In Quezon v. Justice of the Peace,
act. If the danger impending from Justice J.B.L. Reyes dissented and
that situation is clearly manifest, you claimed that criminal negligence is a
have a case of reckless imprudence. quasi-offense, and the correct
But if the danger that would result designation should not be homicide
from such imprudence is not clear, through reckless imprudence, but
not manifest nor immediate you have reckless imprudence resulting in
only a case of simple negligence. homicide. The view of Justice Reyes
Because of Article 365, one might is sound, but the problem is Article 3,
think that criminal negligence is the which states that culpa is just a mode
one being punished. That is why a by which a felony may result.
question is created that criminal
negligence is the crime in itself.
Question & Answer
In People v. Faller, it was stated
indirectly that that criminal negligence
or culpa is just a mode of incurring Is culpa or criminal negligence a
criminal liability. In this case, the crime?
accused was charged with malicious
mischief. Malicious mischief is an First, point out Article 3. Under
intentional negligence under Article Article 3, it is beyond question that
327 of the Revised Penal Code. The culpa or criminal negligence is just a
provision expressly requires that mode by which a felony may arise; a
there be a deliberate damaging of felony may be committed or incurred
property of another, which does not through dolo or culpa.
constitute destructive arson. You do
not have malicious mischief through However, Justice J.B.L. Reyes
simple negligence or reckless pointed out that criminal negligence is
imprudence because it requires a quasi–offense. His reason is that if
deliberateness. Faller was charged criminal negligence is not a quasi-
with malicious mischief, but was offense, and only a modality, then it
convicted of damage to property would have been absorbed in the
through reckless imprudence. The commission of the felony and there
would be no need for Article 365 as a also damage to property in the

separate article for criminal Regional Trial Court. The accused
negligence. Therefore, criminal pleaded guilty to the charge of slight
negligence, according to him, is not physical injuries. When he was
just a modality; it is a crime by itself, arraigned before the Regional Trial
but only a quasi-offense. Court, he invoked double jeopardy.
He was claiming that he could not be
However, in Samson v. CA, where a prosecuted again for the same
person who has been charged with criminal negligence. The Supreme
falsification as an intentional felony, Court ruled that here is no double
was found guilty of falsification jeopardy because the crimes are two
through simple negligence. This different crimes. Slight physical
means that means that culpa or injuries and damage to property are
criminal negligence is just a modality two different crimes.
of committing a crime.
In so ruling that there is no double
In some decisions on a complex crime jeopardy, the Supreme Court did not
resulting from criminal negligence, look into the criminal negligence. The
the Supreme Court pointed out that Supreme Court looked into the
when crimes result from criminal physical injuries and the damage to
negligence, they should not be made property as the felonies and not
the subject of a different information. criminal negligence.
For instance, the offender was
charged with simple negligence In several cases that followed, the
resulting in slight physical injuries, Supreme Court ruled that where
and another charge for simple several consequences result from
negligence resulting in damage to reckless imprudence or criminal
property. The slight physical injuries negligence, the accused should be
which are the result of criminal charged only in the Regional Trial
negligence are under the jurisdiction Court although the reckless
of the inferior court. But damage to imprudence may result in slight
property, if the damage is more than physical injuries. The Supreme Court
P2,000.00, would be under the argued that since there was only one
jurisdiction of the Regional Trial Court criminal negligence, it would be an
because the imposable fine ranges up error to split the same by prosecuting
to three times the value of the the accused in one court and
damage. prosecuting him again in another for
the same criminal negligence. This is
In People v. Angeles, the tantamount to splitting a cause of
prosecution filed an information action in a civil case. For orderly
against the accused in an inferior procedure, the information should
court for slight physical injuries only be one. This however, also
through reckless imprudence and filed creates some doubts. As you know,
when the information charges the

accused for more than the crime, the 2. A had been courting X for
information is defective unless the the last five years. X told A, “Let us
crime charged is a complex one or a just be friends. I want a lawyer for a
special complex crime. husband and I have already found
somebody whom I agreed to marry.
Anyway there are still a lot of ladies
around; you will still have your chance
CRIMINAL LIABILITY with another lady." A, trying to show
that he is a sport, went down from the
house of X, went inside his car, and
Since in Article 3, a felony is an act or stepped on the accelerator to the
omission punishable by law, limit, closed his eyes, started the
particularly the Revised Penal Code, it vehicle. The vehicle zoomed, running
follows that whoever commits a over all the pedestrians on the street.
felony incurs criminal liability. In At the end, the car stopped at the
paragraph 1 of Article 4, the law uses fence. He was taken to the hospital,
the word “felony”, that whoever and he survived. Can he be held
commits a felony incurs criminal criminally liable for all those innocent
liability. A felony may arise not only people that he ran over, claiming that
when it is intended, but also when it he was committing suicide?
is the product of criminal negligence.
What makes paragraph 1 of Article 4 He will be criminally liable, not
confusing is the addition of the for an intentional felony, but for
qualifier “although the wrongful act be culpable felony. This is so because, in
different from what he intended.” paragraph 1 of Article 4, the term
used is “felony”, and that term covers
both dolo and culpa.
Questions & Answers
3. A pregnant woman
thought of killing herself by climbing
1. A man thought of up a tall building and jumped down
committing suicide and went on top of below. Instead of falling in the
a tall building. He jumped, landing on pavement, she fell on the owner of
somebody else, who died instantly. Is the building. An abortion resulted. Is
he criminally liable? she liable for an unintentional
abortion? If not, what possible crime
Yes. A felony may result not may be committed?
only from dolo but also from culpa. If
that fellow who was committing The relevant matter is whether
suicide acted negligently, he will be the pregnant woman could commit
liable for criminal negligence resulting unintentional abortion upon herself.
in the death of another. The answer is no because the way the
law defines unintentional abortion, it without which such felony could not
requires physical violence coming have resulted. He who is the cause of
from a third party. When a pregnant the cause is the evil of the cause. As
woman does an act that would bring a general rule, the offender is
about abortion, it is always criminally liable for all the
intentional. Unintentional abortion consequences of his felonious act,
can only result when a third person although not intended, if the felonious
employs physical violence upon a act is the proximate cause of the
pregnant woman resulting to an felony or resulting felony. A
unintended abortion. proximate cause is not necessarily the
immediate cause. This may be a
cause which is far and remote from
In one case, a pregnant woman and the consequence which sets into
man quarreled. The man could no motion other causes which resulted in
longer bear the shouting of the the felony.
woman, so he got his firearm and
poked it into the mouth of the Illustrations:
woman. The woman became
hysterical, so she ran as fast as she A, B, C, D and E were driving their
could, which resulted in an abortion. vehicles along Ortigas Aveue. A's car
The man was prosecuted for was ahead, followed by those of B, C,
unintentional abortion. It was held D, and E. When A's car reached the
that an unintentional abortion was not intersection of EDSA and Ortigas
committed. However, drawing a Avenue, the traffic light turned red so
weapon in the height of a quarrel is a A immediately stepped on his break,
crime of other light threats under followed by B, C, D. However, E was
Article 285. An unintentional abortion not aware that the traffic light had
can only be committed out of physical turned to red, so he bumped the car
violence, not from mere threat. of D, then D hit the car of C, then C
hit the car of B, then, finally, B hit the
car of A. In this case, the immediate
Proximate cause cause to the damage of the car of A is
the car of B, but that is not the
Article 4, paragraph 1 presupposes proximate cause. The proximate
that the act done is the proximate cause is the car of E because it was
cause of the resulting felony. It must the car of E which sets into motion
be the direct, natural, and logical the cars to bump into each other.
consequence of the felonious act.
In one case, A and B, who are
Proximate cause is that cause which brothers-in-law, had a quarrel. At the
sets into motion other causes and height of their quarrel, A shot B with
which unbroken by any efficient an airgun. B was hit at the stomach,
supervening cause produces a felony which bled profusely. When A saw
this, he put B on the bed and told him in a situation where he is utterly
not to leave the bed because he will defenseless.
call a doctor. While A was away, B
rose from the bed, went into the In US v. Valdez, the deceased is a
kitchen and got a kitchen knife and member of the crew of a vessel.
cut his throat. The doctor arrived and Accused is in charge of the
said that the wound in the stomach is crewmembers engaged in the loading
only superficial; only that it is a of cargo in the vessel. Because the
bleeder, but the doctor could no offended party was slow in his work,
longer save him because B’s throat the accused shouted at him. The
was already cut. Eventually, B died. A offended party replied that they would
was prosecuted for manslaughter. be better if he would not insult them.
The Supreme Court rationalized that The accused resented this, and rising
what made B cut his throat, in the in rage, he moved towards the victim,
absence of evidence that he wanted with a big knife in hand threatening to
to commit suicide, is the belief that kill him. The victim believing himself
sooner or later, he would die out of to be in immediate peril, threw
the wound inflicted by A. Because of himself into the water. The victim
that belief, he decided to shorten the died of drowning. The accused was
agony by cutting his throat. That prosecuted for homicide. His
belief would not be engendered in his contention that his liability should be
mind were it not because of the only for grave threats since he did not
profuse bleeding from his wound. even stab the victim, that the victim
Now, that profusely bleeding would died of drowning, and this can be
not have been there, were it not for considered as a supervening cause.
the wound inflicted by A. As a result, It was held that the deceased, in
A was convicted for manslaughter. throwing himself into the river, acted
solely in obedience to the instinct of
In criminal law, as long as the act of self-preservation, and was in no
the accused contributed to the death sense legally responsible for his own
of the victim, even if the victim is death. As to him, it was but the
about to die, he will still be liable for exercise of a choice between two
the felonious act of putting to death evils, and any reasonable person
that victim. In one decision, the under the same circumstance might
Supreme Court held that the most have done the same. The accused
precious moment in a man’s life is must, therefore, be considered as the
that of losing seconds when he is author of the death of the victim.
about to die. So when you robbed
him of that, you should be liable for This case illustrates that proximate
his death. Even if a person is already cause does not require that the
dying, if one suffocates him to end up offender needs to actually touch the
his agony, one will be liable for body of the offended party. It is
murder, when you put him to death, enough that the offender generated in
the mind of the offended party the When a person inflicted wound upon
belief that made him risk himself. another, and his victim upon coming
home got some leaves, pounded them
If a person shouted fire, and because and put lime there, and applying this
of that a moviegoer jumped into the to the wound, developed locked jaw
fire escape and died, the person who and eventually he died, it was held
shouted fire when there is no fire is that the one who inflicted the wound
criminally liable for the death of that is liable for his death.
person.
In another instance, during a quarrel,
In a case where a wife had to go out the victim was wounded. The wound
to the cold to escape a brutal husband was superficial, but just the same the
and because of that she was exposed doctor put inside some packing. When
to the element and caught the victim went home, he could not
pneumonia, the husband was made stand the pain, so he pulled out the
criminally liable for the death of the packing. That resulted into profuse
wife. bleeding and he died because of loss
of blood. The offender who caused the
Even though the attending physician wound, although the wound caused
may have been negligent and the was only slight, was held answerable
negligence brought about the death of for the death of the victim, even if the
the offending party – in other words, victim would not have died were it not
if the treatment was not negligent, for the fact that he pulled out that
the offended party would have packing. The principle is that without
survived – is no defense at all, the wound, the act of the physician or
because without the wound inflicted the act of the offended party would
by the offender, there would have not have anything to do with the
been no occasion for a medical wound, and since the wound was
treatment. inflicted by the offender, whatever
happens on that wound, he should be
Even if the wound was called slight made punishable for that.
but because of the careless
treatment, it was aggravated, the In Urbano v. IAC, A and B had a
offender is liable for the death of the quarrel and started hacking each
victim not only of the slight physical other. B was wounded at the back.
injuries. Reason – without the injury Cooler heads intervened and they
being inflicted, there would have been were separated. Somehow, their
no need for any medical treatment. differences were patched up. A
That the medical treatment proved to agreed to shoulder all the expenses
be careless or negligent, is not for the treatment of the wound of B,
enough to relieve the offender of the and to pay him also whatever lost of
liability for the inflicting injuries. income B may have failed to receive.
B, on the other hand, signed a
forgiveness in favor of A and on that tetanus brought about by the act of

condition, he withdrew the complaint the accused. The tetanus was
that he filed against A. After so many gathered by his working in the farm
weeks of treatment in a clinic, the and that is already an efficient
doctor pronounced the wound already intervening cause.
healed. Thereafter, B went back to his
farm. Two months later, B came The one who caused the proximate
home and he was chilling. Before cause is the one liable. The one who
midnight, he died out of tetanus caused the immediate cause is also
poisoning. The heirs of B filed a case liable, but merely contributory or
of homicide against A. The Supreme sometimes totally not liable.
Court held that A is not liable. It took
into account the incubation period of
tetanus toxic. Medical evidence were Wrongful act done be different
presented that tetanus toxic is good from what was intended
only for two weeks. That if, indeed,
the victim had incurred tetanus What makes the first paragraph of
poisoning out of the wound inflicted Article 4 confusing is the qualification
by A, he would not have lasted two “although the wrongful act done be
months. What brought about tetanus different from what was intended”.
to infect the body of B was his There are three situations
working in his farm using his bare contemplated under paragraph 1 of
hands. Because of this, the Supreme Article 4:
Court said that the act of B of working
in his farm where the soil is filthy, (1) Aberratio ictus or mistake in
using his own hands, is an efficient the blow;
supervening cause which relieves A of
any liability for the death of B. A, if at (2) Error in personae or mistake in
all, is only liable for physical injuries identity; and
inflicted upon B.
(3) Praeter intentionem or where
If you are confronted with this facts of the consequence exceeded the
the Urbano case, where the offended intention.
party died because of tetanus
poisoning, reason out according to
that reasoning laid down by the Aberratio ictus
Supreme Court, meaning to say, the
incubation period of the tetanus In aberratio ictus, a person directed
poisoning was considered. Since the blow at an intended victim, but
tetanus toxic would affect the victim because of poor aim, that blow landed
for no longer than two weeks,, the on somebody else. In aberratio ictus,
fact that the victim died two months the intended victim as well as the
later shows that it is no longer
actual victim are both at the scene of

the crime. If the resulting physical injuries were
Distinguish this from error in only slight, then you cannot complex;
personae, where the victim actually you will have one prosecution for the
received the blow, but he was attempted homicide or murder, and
mistaken for another who was not at another prosecution for slight physical
the scene of the crime. The injuries for the innocent party. But if
distinction is important because the the innocent party was seriously
legal effects are not the same. injured or less seriously injured, then
you have another grave or less grave
In aberratio ictus, the offender felony resulting from the same act
delivers the blow upon the intended which gave rise to attempted
victim, but because of poor aim the homicide or murder against B; hence,
blow landed on somebody else. You a complex crime.
have a complex crime, unless the
resulting consequence is not a grave In other words, aberratio ictus,
or less grave felony. You have a generally gives rise to a complex
single act as against the intended crime. This being so, the penalty for
victim and also giving rise to another the more serious crime is imposed in
felony as against the actual victim. the maximum period. This is the
To be more specific, let us take for legal effect. The only time when a
example A and B. A and B are complex crime may not result in
enemies. As soon as A saw B at a aberratio ictus is when one of the
distance, A shot at B. However, resulting felonies is a light felony.
because of poor aim, it was not B who
was hit but C. You can readily see
that there is only one single act – the Question & Answer
act of firing at B. In so far as B is
concerned, the crime at least is
attempted homicide or attempted The facts were one of aberratio
murder, as the case may be, if there ictus, but the facts stated that the
is any qualifying circumstance. As far offender aimed carelessly in firing the
as the third party C is concerned, if C shot. Is the felony the result of dolo
were killed, crime is homicide. If C or culpa? What crime was
was only wounded, the crime is only committed?
physical injuries. You cannot have
attempted or frustrated homicide or All three instances under
murder as far as C is concerned, paragraph 1, Article 4 are the product
because as far as C is concern, there of dolo. In aberratio ictus, error in
is no intent to kill. As far as that personae and praeter intentionem,
other victim is concerned, only never think of these as the product of
physical injuries – serious or less culpa. They are always the result of
serious or slight. an intended felony, and, henc,e dolo.
You cannot have these situations out offender is prosecuted for the crime
of criminal negligence. The crime committed not for the crime intended.
committed is attempted homicide or
attempted murder, not homicide Illustrations:
through reckless imprudence.
A thought of killing B. He positioned
himself at one corner where B would
Error in personae usually pass. When a figure
resembling B was approaching, A hid
In error in personae, the intended and when that figure was near him,
victim was not at the scene of the he suddenly hit him with a piece of
crime. It was the actual victim upon wood on the nape, killing him. But it
whom the blow was directed, but he turned out that it was his own father.
was not really the intended victim. The crime committed is parricide,
There was really a mistake in identity. although what was intended was
homicide. Article 49, therefore, will
This is very important because Article apply because out of a mistake in
49 applies only in a case of error in identity, a crime was committed
personae and not in a case of different from that which was
abberatio ictus. intended.
In Article 49, when the crime In another instance, A thought of

intended is more serious than the killing B. Instead of B, C passed. A
crime actually committed or vice- thought that he was B, so he hit C on
versa, whichever crime carries the the neck, killing the latter. Just the
lesser penalty, that penalty will be the same, the crime intended to be
one imposed. But it will be imposed in committed is homicide and what was
the maximum period. For instance, committed is actually homicide,
the offender intended to commit Article 49 does not apply. Here, error
homicide, but what was actually in personae is of no effect.
committed with parricide because the
person he killed by mistake was How does error in personae affect
somebody related to him within the criminal liability of the offender?
degree of relationship in parricide. In
such a case, the offender will be Error in personae is mitigating if the
charged with parricide, but the crime committed is different from that
penalty that would be imposed will be which was intended. If the crime
that of homicide. This is because committed is the same as that which
under Article 49, the penalty for the was intended, error in personae does
lesser crime will be the one imposed, not affect the criminal liability of the
whatever crime the offender is offender.
prosecuted under. In any event, the
In mistake of identity, if the crime given the benefit of paragraph 3 of

committed was the same as the crime Article13, that is, " that the offender
intended, but on a different victim, did not intend to commit so grave a
error in persona does not affect the wrong as that committed”.
criminal liability of the offender. But
if the crime committed was different This is the consequence of praeter
from the crime intended, Article 49 intentionem. In short, praeter
will apply and the penalty for the intentionem is mitigating, particularly
lesser crime will be applied. In a covered by paragraph 3 of Article 13.
way, mistake in identity is a In order however, that the situation
mitigating circumstance where Article may qualify as praeter intentionem,
49 applies. Where the crime intended there must be a notable disparity
is more serious than the crime between the means employed and the
committed, the error in persona is not resulting felony. If there is no
a mitigating circumstance disparity between the means
Praeter intentionem employed by the offender and the
resulting felony, this circumstance
In People v. Gacogo, 53 Phil 524, cannot be availed of. It cannot be a
two persons quarreled. They had fist case of praeter intentionem because
blows. The other started to run away the intention of a person is
and Gacogo went after him, struck determined from the means resorted
him with a fist blow at the back of the to by him in committing the crime.
head. Because the victim was
running, he lost balance, he fell on Illustrations:
the pavement and his head struck the
cement pavement. He suffered A stabbed his friend when they had a
cerebral hemorrhage. Although drinking spree. While they were
Gacogo claimed that he had no drinking, they had some argument
intention of killing the victim, his about a basketball game and they
claim is useless. Intent to kill is only could not agree, so he stabbed him
relevant when the victim did not die. eleven times. His defense is that he
This is so because the purpose of had no intention of killing his friend.
intent to kill is to differentiate the He did not intend to commit so grave
crime of physical injuries from the a wrong as that committed. It was
crime of attempted homicide or held that the fact that 11 wounds
attempted murder or frustrated were inflicted on A's friend is hardly
homicide or frustrated murder. But compatible with the idea that he did
once the victim is dead, you do not not intend to commit so grave a
talk of intent to kill anymore. The wrong that committed.
best evidence of intent to kill is the
fact that victim was killed. Although In another instance, the accused was
Gacogo was convicted for homicide a homosexual. The victim ridiculed or
for the death of the person, he was humiliated him while he was going to
the restroom. He was so irritated killing, because it was the pan de sal
that he just stabbed the victim at the they put into the mouth. Had it been
neck with a lady’s comb with a a piece of rag, it would be different.
pointed handle, killing the victim. His In that case, the Supreme Court gave
defense was that he did not intend to the offenders the benefit of praeter
kill him. He did not intend to commit intentionem as a mitigating
so grave a wrong as that of killing circumstance. The means employed
him. That contention was rejected, is not capable of producing death if
because the instrument used was only the woman chewed the pan de
pointed. The part of the body sal.
wherein it was directed was the neck
which is a vital part of the body. In A man raped a young girl. The young
praeter intentionem, it is mitigating girl was shouting so the man placed
only if there is a notable or notorious his hand on the mouth and nose of
disparity between the means the victim. He found out later that
employed and the resulting felony. In the victim was dead already; she died
criminal law, intent of the offender is of suffocation. The offender begged
determined on the basis employed by that he had no intention of killing the
him and the manner in which he girl and that his only intention was to
committed the crime. Intention of prevent her from shouting. The
the offender is not what is in his Supreme Court rejected the plea
mind; it is disclosed in the manner in saying that one can always expect
which he committed the crime. that a person who is suffocated may
eventually die. So the offender was
In still another case, the accused prosecuted for the serious crime of
entered the store of a Chinese couple, rape with homicide and he was not
to commit robbery. They hogtied the given the benefit of paragraph 3,
Chinaman and his wife. Because the Article 13.
wife was so talkative, one of the
offenders got a pan de sal and put it Differentiating this first case with the
in her mouth. But because the case of the Chinamana nd his wife, it
woman was trying to wriggle from the would seem that the difference lies in
bondage, the pan de sal slipped the means employed by the offender.
through her throat. She died because
of suffocation. The offender were In praeter intentionem, it is essential
convicted for robbery with homicide that there is a notable disparity
because there was a resulting death, between the means employed or the
although their intention was only to act of the offender and the felony
rob. They were given the benefit of which resulted. This means that the
paragraph 3 of Article 13, “that they resulting felony cannot be foreseen
did not intend to commit so grave a from the acts of the offender. If the
wrong as that committed”. There was resulting felony can be foreseen or
really no intention to bring about the anticipated from the means
employed, the circumstance of earlier. Is an impossible crime

praeter intentionem does not apply. committed?
For example, if A gave B a karate Yes. Before, the act performed

blow in the throat, there is no praeter by the offender could not have been a
intentionem because the blow to the crime against person or property.
throat can result in death. The act performed would have been
constituted a crime against chastity.
So also, if A tried to intimidate B by An impossible crime is true only if the
poking a gun at the latter’s back, and act done by the offender constitutes a
B died of a cardiac arrest, A will be crime against person or property.
prosecuted for homicide but will be However, with the new rape law
given the mitigating circumstance amending the Revised Penal Code and
praeter intentionem. classifying rape as a crime against
persons, it is now possible that an
impossible crime was committed.
Impossible crime Note, however, that the crime might
also fall under the Revised
An impossible crime is an act which Administrative Code – desecrating the
would be an offense against person or dead.
property were it not for the inherent
impossibility of its accomplishment or 2. A was driving his car
on account of the employment of around Roxas Boulevard when a
inadequate or ineffectual means. person hitched a ride. Because this
person was exquisitely dressed, A
readily welcomed the fellow inside his
Question & Answer car and he continued driving. When
he reached a motel, A suddenly
swerved his car inside. A started
1. Accused was a houseboy kissing his passenger, but he found
in a house where only a spinster out that his passenger was not a
resides. It is customary for the woman but a man, and so he pushed
spinster to sleep nude because her him out of the car, and gave him fist
room was warm. It was also the habit blows. Is an impossible crime
of the houseboy that whenever she committed? If not, is there any crime
enters her room, the houseboy would committed at all?
follow and peek into the keyhole.
Finally, when the houseboy could no It cannot be an impossible
longer resist the urge, he climbed into crime, because the act would have
the ceiling, went inside the room of been a crime against chastity. The
his master, placed himself on top of crime is physical injuries or acts of
her and abused her, not knowing that lasciviousness, if this was done
she was already dead five minutes against the will of the passenger.
There are two ways of committing 3. A entered a department

acts of lasciviousness. Under Article store at about midnight, when it was
336, where the acts of lasciviousness already closed. He went directly to
were committed under circumstances the room where the safe or vault was
of rape, meaning to say, there is being kept. He succeeded in opening
employment of violence or the safe, but the safe was empty. Is
intimidation or the victim is deprived an impossible crime committed? If
of reason. Even if the victim is a not, what crime is possibly
man, the crime of acts of committed?
lasciviousness is committed. This is a
crime that is not limited to a victim This is not an impossible crime.
who is a woman. Acts of That is only true if there is nothing
lasciviousness require a victim to be a more to steal. But in a department
woman only when it is committed store, where there is plenty to steal,
under circumstances of seduction. If not only the money inside the vault or
it is committed under the safe. The fact that the vault had
circumstances of rape, the victim may turned out to be empty is not really
be a man or a woman. The essence inherently impossible to commit the
of an impossible crime is the inherent crime of robbery. There are other
impossibility of accomplishing the things that he could take. The crime
crime or the inherent impossibility of committed therefore is attempted
the means employed to bring about robbery, assuming that he did not lay
the crime. When we say inherent his hands on any other article. This
impossibility, this means that under could not be trespass to dwelling
any and all circumstances, the crime because there are other things that
could not have materialized. If the can be stolen.
crime could have materialized under a
different set of facts, employing the 4. A and B were lovers. B
same mean or the same act, it is not was willing to marry A except that A is
an impossible crime; it would be an already married. A thought of killing
attempted felony. his wife. He prepared her breakfast
every morning, and every morning,
Under Article 4, paragraph 2, he placed a little dose of arsenic
impossible crime is true only when poison into the breakfast of the wife.
the crime committed would have been The wife consumed all the food
against person or against property. It prepared by her husband including
is, therefore, important to know what the poison but nothing happened to
are the crimes under Title VIII, the wife. Because of the volume of
against persons and those against the household chores that the wife
property under Title X. An impossible had to attend to daily, she developed
crime is true only to any of those a physical condition that rendered her
crimes. so strong and resistance to any kind
of poisoning, so the amount of poison
applied to her breakfast has no effect an electric cord tied the one end to
to her. Is there an impossible crime? the door knob and plugged the other
end to an electric outlet. The idea
No impossible crime is was that, when Scott comes home to
committed because the fact itself open the door knob, he would be
stated that what prevented the poison electrocuted. Unknown to Charles,
from taking effect is the physical Scott is working in an electronic shop
condition of the woman. So it implies where he received a daily dosage of
that if the woman was not of such electric shock. When Scott opened
physical condition, the poison would the doorknob, nothing happened to
have taken effect. Hence, it is not him. He was just surprised to find out
inherently impossible to realize the that there was an electric cord
killing. The crime committed is plugged to the outlet and the other
frustrated parricide. hand to the door knob. Whether an
impossible crime was committed or
If it were a case of poisoning , not?
an impossible crime would be
constituted if a person who was It is not an impossible crime.
thinking that it was a poison that he The means employed is not inherently
was putting into the food of the impossible to bring about the
intended victim but actually it was consequence of his felonious act.
vetsin or sugar or soda. Under any What prevented the consummation of
and all circumstances, the crime could the crime was because of some cause
not have been realized. But if due to independent of the will of the
the quantity of vetsin or sugar or perpetrator.
soda, the intended victim developed
LBM and was hospitalized, then it 6. A and B are enemies. A,
would not be a case of impossible upon seeing B, got the revolver of his
crime anymore. It would be a case of father, shot B, but the revolver did
physical injuries, if the act done does not discharge because the bullets
not amount to some other crime were old, none of them discharged.
under the Revised Penal Code. Was an impossible crime committed?
Do not confuse an impossible crime No. It was purely accidental

with the attempted or frustrated that the firearm did not discharge
stage. because the bullets were old. If they
were new, it would have fired. That is
5. Scott and Charles are a cause other than the spontaneous
roommate in a boarding house. desistance of the offender, and
Everyday, Scott leaves for work but therefore, an attempted homicide.
before leaving he would lock the food
cabinet where he kept his food. But if let us say, when he started
Charles resented this. One day, he got squeezing the trigger, he did not
realize that the firearm was empty. status. A thought of killing B so A

There was no bullet at all. There is climbed the house of B through the
an impossible crime, because under window and stabbed B on the heart,
any and all circumstances, an not knowing that B died a few minutes
unloaded firearm will never fire. ago of bangungot. Is A liable for an
impossible crime?
Whenever you are confronted with a
problem where the facts suggest that No. A shall be liable for
an impossible crime was committed, qualified trespass to dwelling.
be careful about the question asked. Although the act done by A against B
If the question asked is: “Is an constitutes an impossible crime, it is
impossible crime committed?”, then the principle of criminal law that the
you judge that question on the basis offender shall be punished for an
of the facts. If really the facts impossible crime only when his act
constitute an impossible crime, then cannot be punished under some other
you suggest than an impossible crime provisions in the Revised Penal Code.
is committed, then you state the
reason for the inherent impossibility. In other words, this idea of an
impossible crime is a one of last
If the question asked is “Is he liable resort, just to teach the offender a
for an impossible crime?”, this is a lesson because of his criminal
catching question. Even though the perversity. If he could be taught of
facts constitute an impossible crime, the same lesson by charging him with
if the act done by the offender some other crime constituted by his
constitutes some other crimes under act, then that will be the proper way.
the Revised Penal Code, he will not be If you want to play safe, you state
liable for an impossible crime. He will there that although an impossible
be prosecuted for the crime crime is constituted, yet it is a
constituted so far by the act done by principle of criminal law that he will
him. The reason is an offender is only be penalized for an impossible
punished for an impossible crime just crime if he cannot be punished under
to teach him a lesson because of his some other provision of the Revised
criminal perversity. Although Penal Code.
objectively, no crime is committed,
but subjectively, he is a criminal. If the question is “Is an impossible
That purpose of the law will also be crime is committed?”, the answer is
served if he is prosecuted for some yes, because on the basis of the facts
other crime constituted by his acts stated, an impossible crime is
which are also punishable under the committed. But to play safe, add
RPC. another paragraph: However, the
offender will not be prosecuted for an
7. A and B are neighbors. impossible crime but for _____ [state
They are jealous of each other’s social the crime]. Because it is a principle
in criminal law that the offender can seriousness of the act committed,
only be prosecuted for an impossible considering the lawlessness by which
crime if his acts do not constitute the culprits carried out the intended
some other crimes punishable under crime, and so some members of the
the Revised Penal Code. An bench and bar spoke out against the
impossible crime is a crime of last soundness of the ruling. Some asked
resort. questions: Was it really the
impossibility of accomplishing the
killing that brought about its non-
Modified concept of impossible accomplishment? Was it not purely
crime: accidental that the intended victim did
not come home that evening and,
In a way, the concept of impossible thus, unknown to the culprits, she
crime has been modified by the was not in her bedroom at the time it
decision of the Supreme Court in the was shot and riddled with bullets?
case of Intod v. CA, et al., 215 Suppose, instead of using firearms,
SCRA 52. In this case, four culprits, the culprits set fire on the intended
all armed with firearms and with victim’s house, believing she was
intent to kill, went to the intended there when in fact she was not, would
victim’s house and after having the criminal liability be for an
pinpointed the latter’s bedroom, all impossible crime?
four fired at and riddled said room
with bullets, thinking that the Until the Intod case, the prevailing
intended victim was already there as attitude was that the provision of the
it was about 10:00 in the evening. It Revised Penal Code on impossible
so happened that the intended victim crime would only apply when the
did not come home on the evening wrongful act, which would have
and so was not in her bedroom at constituted a crime against persons or
that time. Eventually the culprits property, could not and did not
were prosecuted and convicted by the constitute another felony. Otherwise,
trial court for attempted murder. The if such act constituted any other
Court of Appeals affirmed the felony although different from what
judgment but the Supreme Court the offender intended, the criminal
modified the same and held the liability should be for such other
petitioner liable only for the so-called felony and not for an impossible
impossible crime. As a result, crime. The attitude was so because
petitioner-accused was sentenced to Article 4 of the Code provides two
imprisonment of only six months of situations where criminal liability shall
arresto mayor for the felonious act he be incurred, to wit:
committed with intent to kill: this
despite the destruction done to the Art 4. Criminal
intended victim’s house. Somehow, liability – Criminal liability
the decision depreciated the shall be incurred:
act was an impossible crime against

1. By any person persons or against property.
committing a felony
(delito) although the There is no logic in applying
wrongful act be paragraph 2 of Article 4 to a situation
different from that governed by paragraph 1 of the same
which he intended. Article, that is, where a felony
resulted. Otherwise, a redundancy
2. By any person and duplicity would be perpetrated.
performing an act
which would be an In the Intod case, the wrongful acts of
offense against the culprits caused destruction to the
persons or property, house of the intended victim; this
were it not for the felonious act negates the idea of an
inherent impossible crime. But whether we
impossibility of its agree or not, the Supreme Court has
accomplishment or spoken, we have to respect its ruling.
on account of the
employment of
inadequate or NO CRIME UNLESS THERE IS A
ineffectual means. LAW PUNISHING IT
Paragraph 1 refers to a situation When a person is charged in court,

where the wrongful act done and the court finds that there is no
constituted a felony although it may law applicable, the court will acquit
be different from what he intended. the accused and the judge will give
Paragraph 2 refers to a situation his opinion that the said act should be
where the wrongful act done did not punished.
constitute any felony, but because the
act would have given rise to a crime Article 5 covers two situations:
against persons or against property,
the same is penalized to repress (1) The court cannot convict the
criminal tendencies to curtail their accused because the acts do not
frequency. Because criminal liability constitute a crime. The proper
for impossible crime presupposes that judgment is acquittal, but the
no felony resulted from the wrongful court is mandated to report to
act done, the penalty is fixed at the Chief Executive that said act
arresto mayor or a fine from P200.00 be made subject of penal
to P500.00, depending on the “social legislation and why.
danger and degree of criminality
shown by the offender” (Article 59), (2) Where the court finds the
regardless of whether the wrongful penalty prescribed for the crime
too harsh considering the
conditions surrounding the authorized to collect taxes, licenses or

commission of he crime, the impose for the government, shall
judge should impose the law. demand an amount bigger than or
The most that he could do is to different from what the law authorizes
recommend to the Chief him to collect. Under sub-paragraph
Executive to grant executive a of Article 213 on Illegal exaction,
clemency. the law uses the word “demanding”.
Mere demanding of an amount
different from what the law authorizes
STAGES IN THE COMMISSION OF him to collect will already
FELONY consummate a crime, whether the
taxpayer pays the amount being
The classification of stages of a felony demanded or not. Payment of the
in Article 6 are true only to crimes amount being demanded is not
under the Revised Penal Code. This essential to the consummation of the
does not apply to crimes punished crime.
under special laws. But even certain
crimes which are punished under the The difference between the attempted
Revised Penal Code do not admit of stage and the frustrated stage lies on
these stages. whether the offender has performed
all the acts of execution for the
The purpose of classifying penalties is accomplishment of a felony.
to bring about a proportionate penalty Literally, under the article, if the
and equitable punishment. The offender has performed all the acts of
penalties are graduated according to execution which should produce the
their degree of severity. The stages felony as a consequence but the
may not apply to all kinds of felonies. felony was not realized, then the
There are felonies which do not admit crime is already in the frustrated
of division. stage. If the offender has not yet
performed all the acts of execution –
there is yet something to be
Formal crimes performed – but he was not able to
perform all the acts of execution due
Formal crimes are crimes which are to some cause or accident other than
consummated in one instance. For his own spontaneous desistance, then
example, in oral defamation, there is you have an attempted felony.
no attempted oral defamation or
frustrated oral defamation; it is You will notice that the felony begins
always in the consummated stage. when the offender performs an overt
act. Not any act will mark the
So also, in illegal exaction under beginning of a felony, and therefore,
Article 213 is a crime committed if the act so far being done does not
when a public officer who is begin a felony, criminal liability
correspondingly does not begin. In the acts so far performed may already
criminal law, there is such a thing as be a crime or it may be just an
preparatory act. These acts do not ingredient of another crime. The
give rise to criminal liability. word "directly’" emphasizes the
requirement that the attempted
felony is that which is directly linked
Question & Answer to the overt act performed by the
offender, not the felony he has in his
mind.
A and B are husband and wife.
A met C who was willing to marry In criminal law, you are not allowed
him, but he is already married. A to speculate, not to imagine what
thought of eliminating B and to poison crime is intended, but apply the
her. So, he went to the drugstore and provisions of the law of the facts
bought arsenic poison. On the way given.
out, he met D. D asked him who was
sick in the family, A confided to D that When a person starts entering the
he bought the poison to poison his dwelling of another, that act is
wife in order to marry C. After that, already trespassing. But the act of
they parted ways. D went directly to entering is an ingredient of robbery
the police and reported that A is going with force upon things. You could only
to kill his wife. So the policemen went hold him liable for attempted robbery
to A’s house and found A still when he has already completed all
unwrapping the arsenic poison. The acts performed by him directly
policemen asked A if he was planning leading to robbery. The act of
to poison B and A said yes. Police entering alone is not yet indicative of
arrested him and charged him with robbery although that may be what
attempted parricide. Is the charge he may have planned to commit. In
correct? law, the attempted stage is only that
overt act which is directly linked to
No. Overt act begins when the the felony intended to be committed.
husband mixed the poison with the
food his wife is going to take. Before In US v. Namaja, the accused was
this, there is no attempted stage yet. arrested while he was detaching some
of the wood panels of a store. He was
An overt act is that act which if already able to detach two wood
allowed to continue in its natural panels. To a layman, the only
course would definitely result into a conclusion that will come to your
felony. mind is that this fellow started to
enter the store to steal something. He
In the attempted stage, the definition would not be there just to sleep
uses the word “directly”. This is there. But in criminal law, since the
significant. In the attempted stage, act of removing the panel indicates
only at most the intention to enter. the purpose is only qualified trespass.
He can only be prosecuted for Qualified trespass because he did so
trespass. The removal of the by cutting through the screen. There
panelling is just an attempt to was force applied in order to enter.
trespass, not an attempt to rob. Other than that, under Article 304 of
Although, Namaja was prosecuted for the Revised Penal Code, illegal
attempted robbery, the Supreme possession of picklocks and similar
Court held it is only attempted tools is a crime. Thus, he can be
trespass because that is the crime prosecuted for two crimes: (1)
that can be directly linked to his act of qualified trespass to dwelling, and (2)
removing the wood panel. illegal possession of picklocks and
There are some acts which are similar tools; not complex because
ingredients of a certain crime, but one is not necessary means to
which are, by themselves, already commit the other.
criminal offenses.
In abduction, your desire may lead to Desistance

acts of lasciviousness. In so far the
woman being carried is concerned, Desistance on the part of the offender
she may already be the victim of negates criminal liability in the
lascivious acts. The crime is not attempted stage. Desistance is true
attempted abduction but acts of only in the attempted stage of the
lasciviousness. You only hold him felony. If under the definition of the
liable for an attempt, so far as could felony, the act done is already in the
be reasonably linked to the overt act frustrated stage, no amount of
done by him. Do not go far and desistance will negate criminal
imagine what you should do. liability.
The spontaneous desistance of the

Question & Answer offender negates only the attempted
stage but not necessarily all criminal
liability. Even though there was
A awakened one morning with a desistance on the part of the
man sleeping in his sofa. Beside the offender, if the desistance was made
man was a bag containing picklocks when acts done by him already
and similar tools. He found out that resulted to a felony, that offender will
the man entered his sala by cutting still be criminally liable for the felony
the screen on his window. If you brought about his act. What is
were to prosecute this fellow, for what negated is only the attempted stage,
crime are you going to prosecute him? but there may be other felony
constituting his act.
The act done by him of entering
through an opening not intended for
Illustrations: by his act of trespassing. When A

entered the house through the
A fired at B and B was hit on the window, which is not intended for
shoulder. But B's wound was not entrance, it is always presumed to be
mortal. What A then did was to against the will of the owner. If the
approach B, and told B, “Now you are offender proceeded to abuse the
dead, I will kill you.” But A took pity woman, but the latter screamed, and
and kept the revolver and left. The A went out of the window again, he
crime committed is attempted could not be prosecuted for qualified
homicide and not physical injuries, trespass. Dwelling is taken as an
because there was an intention to kill. aggravating circumstance so he will
The desistance was with the second be prosecuted for attempted rape
shot and would not affect the first aggravated by dwelling.
shot because the first shot had
already hit B. The second attempt In deciding whether a felony is
has nothing to do with the first. attempted or frustrated or
consummated, there are three criteria
In another instance, A has a very involved:
seductive neighbor in the person of B.
A had always been looking at B and (1) The manner of committing the
had wanted to possess her but their crime;
status were not the same. One
evening, after A saw B at her house (2) The elements of the crime; and
and thought that B was already
asleep, he entered the house of B (3) The nature of the crime itself.
through the window to abuse her.
He, however, found out that B was
nude, so he lost interest and left. Manner of committing a crime
Can a be accused of attempted rape?
No, because there was desistance, For example, let us take the crime of
which prevented the crime from being bribery. Can the crime of frustrated
consummated. The attempted stage bribery be committed? No.
was erased because the offender (Incidentally, the common concept of
desisted after having commenced the bribery is that it is the act of one who
commission of the felony. corrupts a public officer. Actually,
bribery is the crime of the receiver
The attempted felony is erased by not the giver. The crime of the giver
desistance because the offender is corruption of public official. Bribery
spontaneously desisted from pursuing is the crime of the public officer who
the acts of execution. It does not in consideration of an act having to do
mean, however, that there is no more with his official duties would receive
felony committed. He may be liable something, or accept any promise or
for a consummated felony constituted present in consideration thereof.)
not possible for him to perform all the

The confusion arises from the fact acts of execution because in the first
that this crime requires two to commit place, the receiver has no intention of
-- the giver and the receiver. The law being corrupted.
called the crime of the giver as Similarly, when a public officer
corruption of public official and the demands a consideration by official
receiver as bribery. Giving the idea duty, the corruptor turns down the
that these are independent crimes, demand, there is no bribery.
but actually, they cannot arise
without the other. Hence, if only one If the one to whom the demand was
side of the crime is present, only made pretended to give, but he had
corruption, you cannot have a reported the matter to higher
consummated corruption without the authorities, the money was marked
corresponding consummated bribery. and this was delivered to the public
There cannot be a consummated officer. If the public officer was
bribery without the corresponding arrested, do not think that because
consummated corruption. If you have the public officer already had the
bribery only, it is only possible in the money in his possession, the crime is
attempted stage. If you have a already frustrated bribery, it is only
corruption only, it is possible only in attempted bribery. This is because
the attempted stage. A corruptor the supposed corruptor has no
gives money to a public officer for the intention to corrupt. In short, there is
latter not to prosecute him. The public no meeting of the minds. On the
officer received the money but just other hand, if there is a meeting of
the same, arrested him. He received the minds, there is consummated
the money to have evidence of bribery or consummated corruption.
corruption. Do not think that because This leaves out the frustrated stage
the corruptor has already delivered because of the manner of committing
the money, he has already performed the crime.
all the acts of execution, and,
therefore, the corruption is already But indirect bribery is always
beyond the attempted stage. That consummated. This is because the
thinking does away with the concept manner of consummating the crime
of the crime that it requires two to does not admit of attempt or
commit. The manner of committing frustration.
the crime requires the meeting of the
minds between the giver and the You will notice that under the Revised
receiver. Penal Code, when it takes two to
commit the crime, there could hardly
When the giver delivers the money to be a frustrated stage. For instance,
the supposed receiver, but there is no the crime of adultery. There is no
meeting of the minds, the only act frustrated adultery. Only attempted or
done by the giver is an attempt. It is consummated. This is because it
requires the link of two participants. If

that link is there, the crime is In rape, it requires the connection of
consummated; if such link is absent, the offender and the offended party.
there is only an attempted adultery. No penetration at all, there is only an
There is no middle ground when the attempted stage. Slightest
link is there and when the link is penetration or slightest connection,
absent. consummated. You will notice this
from the nature of the crime requiring
There are instances where an two participants.
intended felony could already result
from the acts of execution already This is also true in the crime of arson.
done. Because of this, there are It does not admit of the frustrated
felonies where the offender can only stage. In arson, the moment any
be determined to have performed all particle of the premises intended to
the acts of execution when the be burned is blackened, that is
resulting felony is already already an indication that the
accomplished. Without the resulting premises have begun to burn. It does
felony, there is no way of determining not require that the entire premises
whether the offender has already be burned to consummate arson.
performed all the acts or not. It is in Because of that, the frustrated stage
such felonies that the frustrated stage of arson has been eased out. The
does not exist because without the reasoning is that one cannot say that
felony being accomplished, there is no the offender, in the crime of arson,
way of stating that the offender has has already performed all the acts of
already performed all the acts of execution which could produce the
execution. An example of this is the destruction of the premises through
crime of rape. The essence of the the use of fire, unless a part of the
crime is carnal knowledge. No matter premises has begun to burn. If it has
what the offender may do to not begun to burn, that means that
accomplish a penetration, if there was the offender has not yet performed all
no penetration yet, it cannot be said the acts of execution. On the other
that the offender has performed all hand, the moment it begins to burn,
the acts of execution. We can only the crime is consummated. Actually,
say that the offender in rape has the frustrated stage is already
performed all the acts of execution standing on the consummated stage
when he has effected a penetration. except that the outcome did not
Once there is penetration already, no result. As far as the stage is
matter how slight, the offense is concerned, the frustrated stage
consummated. For this reason, rape overlaps the consummated stage.
admits only of the attempted and
consummated stages, no frustrated Because of this reasoning by the
stage. This was the ruling in the case Court of Appeals in People v. Garcia,
of People v. Orita. the Supreme Court followed the
analysis that one cannot say that the time when the offender begins the
offender in the crime of arson has commission of an overt act until that
already performed all the acts of point where he loses control of the
execution which would produce the commission of the crime already. If
arson as a consequence, unless and he has reached that point where he
until a part of the premises had begun can no longer control the ensuing
to burn. consequence, the crime has already
passed the subjective phase and,
In US v. Valdez, the offender had therefore, it is no longer attempted.
tried to burn the premises by The moment the execution of the
gathering jute sacks laying these crime has already gone to that point
inside the room. He lighted these, where the felony should follow as a
and as soon as the jute sacks began consequence, it is either already
to burn, he ran away. The occupants frustrated or consummated. If the
of the room put out the fire. The felony does not follow as a
court held that what was committed consequence, it is already frustrated.
was frustrated arson. If the felony follows as a
consequence, it is consummated.
This case was much the way before
the decision in the case of People v. The trouble is that, in the
Garcia was handed down and the jurisprudence recognizing the
Court of Appeals ruled that there is no objective phase and the subjective
frustrated arson. But even then, the phase, the Supreme Court considered
analysis in the case of US v. Valdez not only the acts of the offender, but
is correct. This is because, in also his belief. That although the
determining whether the felony is offender may not have done the act
attempted, frustrated or to bring about the felony as a
consummated, the court does not consequence, if he could have
only consider the definition under continued committing those acts but
Article 6 of the Revised Penal Code, or he himself did not proceed because
the stages of execution of the felony. he believed that he had done enough
When the offender has already passed to consummate the crime, Supreme
the subjective stage of the felony, it is Court said the subjective phase has
beyond the attempted stage. It is passed. This was applied in the case
already on the consummated or of US v. Valdez, where the offender,
frustrated stage depending on having already put kerosene on the
whether a felony resulted. If the jute sacks, lighted the same, he had
felony did not result, frustrated. no reason not to believe that the fire
would spread, so he ran away. That
The attempted stage is said to be act demonstrated that in his mind, he
within the subjective phase of believed that he has performed all the
execution of a felony. On the acts of execution and that it is only a
subjective phase, it is that point in matter of time that the premises will
burn. The fact that the occupant of consummated arson does not require
the other room came out and put out that the whole of the premises be
the fire is a cause independent of the burned. It is enough that any part of
will of the perpetrator. the premises, no matter how small,
has begun to burn.
The ruling in the case of US v.
Valdez is still correct. But in the There are also certain crimes that do
case of People v. Garcia, the not admit of the attempted or
situation is different. Here, the frustrated stage, like physical injuries.
offender who put the torch over the One of the known commentators in
house of the offended party, the criminal law has advanced the view
house being a nipa hut, the torch that the crime of physical injuries can
which was lighted could easily burn be committed in the attempted as
the roof of the nipa hut. But the well as the frustrated stage. He
torch burned out. explained that by going through the
definition of an attempted and a
In that case, you cannot say that the frustrated felony under Article 6, if a
offender believed that he had person who was about to give a fist
performed all the acts of execution. blow to another raises his arms, but
There was not even a single burn of before he could throw the blow,
any instrument or agency of the somebody holds that arm, there
crime. would be attempted physical injuries.
The reason for this is because the
The analysis made by the Court of offender was not able to perform all
Appeals is still correct: that they could the acts of execution to bring about
not demonstrate a situation where the physical injuries.
offender has performed all the acts of
execution to bring about the crime of On the other hand, he also stated that
arson and the situation where he has the crime of physical injuries may be
not yet performed all the acts of committed in the frustrated stage
execution. The weight of the when the offender was able to
authority is that the crime of arson
cannot be committed in the frustrated throw the blow but somehow, the
stage. The reason is because we can offended party was able to sidestep
hardly determine whether the away from the blow. He reasoned out
offender has performed all the acts of that the crime would be frustrated
execution that would result in arson, because the offender was able to
as a consequence, unless a part of perform all the acts of execution
the premises has started to burn. On which would bring about the felony
the other hand, the moment a particle were it not for a cause independent of
or a molecule of the premises has the will of the perpetrator.
blackened, in law, arson is
consummated. This is because
The explanation is academic. You will attempted, frustrated or

notice that under the Revised Penal consummated?
Code, the crime of physical injuries is
penalized on the basis of the gravity The crime committed here is
of the injuries. Actually, there is no serious physical injuries because of
simple crime of physical injuries. You the deformity. When there is
have to categorize because there are deformity, you disregard the healing
specific articles that apply whether duration of the wound or the medical
the physical injuries are serious, less treatment required by the wound. In
serious or slight. If you say physical order that in law, a deformity can be
injuries, you do not know which said to exist, three factors must
article to apply. This being so, you concur:
could not punish the attempted or
frustrated stage because you do not (1) The injury should bring about
know what crime of physical injuries the ugliness;
was committed.
(2) The ugliness must be visible;
Questions & Answers (3) The ugliness would not

disappear through natural
healing process.
1. Is there an attempted
slight physical injuries? Along this concept of deformity in law,
the plastic surgery applied to B is
If there is no result, you do not beside the point. In law, what is
know. Criminal law cannot stand on considered is not the artificial or the
any speculation or ambiguity; scientific treatment but the natural
otherwise, the presumption of healing of the injury. So the fact that
innocence would be sacrificed. there was plastic surgery applied to B
Therefore, the commentator’s opinion does not relieve the offender from the
cannot stand because you cannot tell liability for the physical injuries
what particular physical injuries was inflicted. The crime committed is
attempted or frustrated unless the serious physical injuries. It is
consequence is there. You cannot consummated. In determining
classify the physical injuries. whether a felony is attempted,
frustrated or consummated, you have
2. A threw muriatic acid on to consider the manner of committing
the face of B. The injuries would have the felony, the element of the felony
resulted in deformity were it not for and the nature of the felony itself.
timely plastic surgery. After the There is no real hard and fast rule.
surgery, B became more handsome.
What crime is committed? Is it
Elements of the crime
receiving the property, the recipient

In the crime of estafa, the element of may be committing theft, not estafa,
damage is essential before the crime if what was transferred to him was
could be consummated. If there is no only the physical or material
damage, even if the offender possession of the object. It can only
succeeded in carting away the be estafa if what was transferred to
personal property involved, estafa him is not only material or physical
cannot be considered as possession but juridical possession as
consummated. For the crime of estafa well.
to be consummated, there must be
misappropriation already done, so When you are discussing estafa, do
that there is damage already suffered not talk about intent to gain. In the
by the offended party. If there is no same manner that when you are
damage yet, the estafa can only be discussing the crime of theft, do not
frustrated or attempted. talk of damage.
On the other hand, if it were a crime The crime of theft is the one
of theft, damage or intent to cause commonly given under Article 6. This
damage is not an element of theft. is so because the concept of theft
What is necessary only is intent to under the Revised Penal Code differs
gain, not even gain is important. The from the concept of larceny under
mere intent to derive some profit is American common law. Under
enough but the thinking must be American common law, the crime of
complete before a crime of theft shall larceny which is equivalent to our
be consummated. That is why we crime of theft here requires that the
made that distinction between theft offender must be able to carry away
and estafa. or transport the thing being stolen.
Without that carrying away, the
If the personal property was received larceny cannot be consummated.
by the offender, this is where you
have to decide whether what was In our concept of theft, the offender
transferred to the offender is juridical need not move an inch from where he
possession or physical possession was. It is not a matter of carrying
only. If the offender did not receive away. It is a matter of whether he
the personal property, but took the has already acquired complete control
same from the possession of the of the personal property involved.
owner without the latter’s consent, That complete control simply means
then there is no problem. That cannot that the offender has already
be estafa; this is only theft or none at supplanted his will from the will of the
all. possessor or owner of the personal
property involved, such that he could
In estafa, the offender receives the exercise his own control on the thing.
property; he does not take it. But in
four walls of this room, the taking is

not complete.
Illustration:
A man entered a room and found a
I placed a wallet on a table inside a chest on the table. He opened it found
room. A stranger comes inside the some valuables inside. He took the
room, gets the wallet and puts it in valuables, put them in his pocket and
his pocket. I suddenly started was arrested. In this case, theft is
searching him and I found the wallet consummated.
inside his pocket. The crime of theft is
already consummated because he But if he does not take the valuables
already acquired complete control of but lifts the entire chest, and before
my wallet. This is so true when he he could leave the room, he was
removed the wallet from the confines apprehended, there is frustrated
of the table. He can exercise his will theft.
over the wallet already, he can drop
this on the floor, etc. If the thing is stolen from a
But as long as the wallet remains on compound or from a room, as long as
the table, the theft is not yet the object has not been brought out
consummated; there can only be of that room, or from the perimeter of
attempted or frustrated theft. If he the compound, the crime is only
has started lifting the wallet, it is frustrated. This is the confusion
frustrated. If he is in the act of trying raised in the case of US v. Diño
to take the wallet or place it under, compared with People v. Adio and
attempted. People v. Espiritu.
“Taking” in the concept of theft, In US v. Diño, the accused loaded

simply means exercising control over boxes of rifle on their truck. When
the thing. they were on their way out of the
South Harbor, they were checked at
If instead of the wallet, the man who the checkpoint, so they were not able
entered the room pretended to carry to leave the compound. It was held
the table out of the room, and the that what was committed was
wallet is there. While taking the table frustrated Theft.
out of the room, I apprehended him.
It turned out that he is not authorized In People v. Espiritu, the accused
at all and is interested only in the were on their way out of the supply
wallet, not the table. The crime is not house when they were apprehended
yet consummated. It is only by military police who found them
frustrated because as far as the table secreting some hospital linen. It was
is concern, it is the confines of this held that what was committed was
room that is the container. As long as consummated theft.
he has not taken this table out of the
The emphasis, which was erroneously cannot talk of desistance anymore

laid in some commentaries, is that, in when it is already in the
both cases, the offenders were not consummated stage. If the offender
able to pass the checkpoint. But why has already acquired complete control
is it that in one, it is frustrated and in of what he intended to take, the fact
the other, it is consummated? that he changed his mind and
returned the same will no longer
In the case of US v. Diño, the boxes affect his criminal liability. It will only
of rifle were stocked file inside the affect the civil liability of the crime
compound of the South Harbor. As because he will no longer be required
far as the boxes of rifle are to pay the object. As far as the crime
concerned, it is the perimeter of the committed is concerned, the offender
compound that is the container. As is criminally liable and the crime is
long as they were not able to bring consummated theft.
these boxes of rifle out of the
compound, the taking is not Illustration:
complete. On the other hand, in the
case of People v. Espiritu, what A and B are neighbors. One evening,
were taken were hospital linens. A entered the yard of B and opened
These were taken from a warehouse. the chicken coop where B keeps his
Hospital linens were taken from boxes fighting cocks. He discovered that the
that were diffused or destroyed and fighting cocks were not physically fit
brought out of the hospital. From the for cockfighting so he returned it.
moment they took it out of the boxes The crime is consummated theft. The
where the owner or the possessor had will of the owner is to keep the
placed it, the control is complete. fighting cock inside the chicken coop.
You do not have to go out of the When the offender succeeded in
compound to complete the taking or bringing the cock out of the coop, it is
the control. clear that his will completely
governed or superseded the will of
This is very decisive in the problem the owner to keep such cock inside
because in most problems given in the chicken coop. Hence, the crime
the bar, the offender, after having was already consummated, and being
taken the object out of the container consummated, the return of the
changed his mind and returned it. Is owner’s property is not desistance
he criminally liable? Do not make a anymore. The offender is criminally
mistake by saying that there is a liable but he will not be civilly liable
desistance. If the crime is one of because the object was returned.
theft, the moment he brought it out,
it was consummated. The return of When the receptacle is locked or
the thing cannot be desistance sealed, and the offender broke the
because in criminal law, desistance is same, in lieu of theft, the crime is
true only in the attempted stage. You robbery with force upon things.
However, that the receptacle is locked mortal wound was inflicted, the act is
or sealed has nothing to do with the already in the frustrated stage.
stage of the commission of the crime.
It refers only to whether it is theft or
robbery with force upon things. CONSPIRACY AND PROPOSAL TO
COMMITE A FELONY
Nature of the crime itself Two ways for conspiracy to exist:
In crimes involving the taking of (1) There is an agreement.

human life – parricide, homicide, and
murder – in the definition of the (2) The participants acted in
frustrated stage, it is indispensable concert or simultaneously which
that the victim be mortally wounded. is indicative of a meeting of the
Under the definition of the frustrated minds towards a common
stage, to consider the offender as criminal goal or criminal
having performed all the acts of objective. When several
execution, the acts already done by offenders act in a synchronized,
him must produce or be capable of coordinated manner, the fact
producing a felony as a consequence. that their acts complimented
The general rule is that there must be each other is indicative of the
a fatal injury inflicted, because it is meeting of the minds. There is
only then that death will follow. an implied agreement.
If the wound is not mortal, the crime Two kinds of conspiracy:

is only attempted. The reason is that
the wound inflicted is not capable of (1) Conspiracy as a crime; and
bringing about the desired felony of (2) Conspiracy as a manner of
parricide, murder or homicide as a incurring criminal liability
consequence; it cannot be said that
the offender has performed all the When conspiracy itself is a crime, no
acts of execution which would overt act is necessary to bring about
produce parricide, homicide or murder the criminal liability. The mere
as a result. conspiracy is the crime itself. This is
only true when the law expressly
An exception to the general rule is the punishes the mere conspiracy;
so-called subjective phase. The otherwise, the conspiracy does not
Supreme Court has decided cases bring about the commission of the
which applied the subjective standard crime because conspiracy is not an
that when the offender himself overt act but a mere preparatory act.
believed that he had performed all the Treason, rebellion, sedition, and coup
acts of execution, even though no d’etat are the only crimes where the
conspiracy and proposal to commit to the rebellion. But if anyone of them

them are punishable. has committed the overt act of
rebellion, the crime of all is no longer
conspiracy to commit rebellion but
Question & Answer rebellion itself. This subsists even
though the other co-conspirator does
not know that one of them had
Union A proposed acts of already done the act of rebellion.
sedition to Union B. Is there a crime
committed? Assuming Union B This legal consequence is not true if
accepts the proposal, will your answer the conspiracy is not a crime. If the
be different? conspiracy is only a basis of criminal
liability, none of the co-conspirators
There is no crime committed. would be liable, unless there is an
Proposal to commit sedition is not a overt act. So, for as long as anyone
crime. But if Union B accepts the shall desist before an overt act in
proposal, there will be conspiracy to furtherance of the crime was
commit sedition which is a crime committed, such a desistance would
under the Revised Penal Code. negate criminal liability.
When the conspiracy is only a basis of Illustration:

incurring criminal liability, there must
be an overt act done before the co- Three persons plan to rob a bank.
conspirators become criminally liable. For as long as none of the
conspirators has committed an overt
When the conspiracy itself is a crime, act, there is no crime yet. But when
this cannot be inferred or deduced one of them commits any overt act,
because there is no overt act. All that all of them shall be held liable, unless
there is the agreement. On the other a co-conspirator was absent from the
hand, if the co-conspirator or any of scene of the crime or he showed up,
them would execute an overt act, the but he tried to prevent the
crime would no longer be the commission of the crime
conspiracy but the overt act itself.
As a general rule, if there has been a
Illustration: conspiracy to commit a crime in a
particular place, anyone who did not
A, B, C and D came to an agreement appear shall be presumed to have
to commit rebellion. Their agreement desisted. The exception to this is if
was to bring about the rebellion on a such person who did not appear was
certain date. Even if none of them the mastermind.
has performed the act of rebellion,
there is already criminal liability We have to observe the distinction
arising from the conspiracy to commit between the two because conspiracy
as a crime, must have a clear and

convincing evidence of its existence. In Taer v. CA, 186 SCRA 5980, it
Every crime must be proved beyond was held that mere knowledge,
reasonable doubt. acquiescence to, or approval of the
act, without cooperation or at least,
When the conspiracy is just a basis of agreement to cooperate, is not
incurring criminal liability, however, enough to constitute a conspiracy.
the same may be deduced or inferred There must be an intentional
from the acts of several offenders in participation in the crime with a view
carrying out the commission of the to further the common felonious
crime. The existence of a conspiracy objective.
may be reasonably inferred from the
acts of the offenders when such acts When several persons who do not
disclose or show a common pursuit of know each other simultaneously
the criminal objective. This was the attack the victim, the act of one is the
ruling in People v. Pinto, 204 SCRA act of all, regardless of the degree of
9. injury inflicted by any one of them.
All will be liable for the consequences.
Although conspiracy is defined as two A conspiracy is possible even when
or more person coming to an participants are not known to each
agreement regarding the commission other. Do not think that participants
of a felony and deciding to commit it, are always known to each other.
the word “person” here should not be
understood to require a meeting of Illustrations:
the co-conspirator regarding the
commission of the felony. A A thought of having her husband
conspiracy of the second kind can be killed because the latter was
inferred or deduced even though they maltreating her. She hired some
have not met as long as they acted in persons to kill him and pointed at her
concert or simultaneously, indicative husband. The goons got hold of her
of a meeting of the minds toward a husband and started mauling him.
common goal or objective. The wife took pity and shouted for
them to stop but the goons continued.
Conspiracy is a matter of substance The wife ran away. The wife was
which must be alleged in the prosecuted for parricide. But the
information, otherwise, the court will Supreme Court said that there was
not consider the same. desistance so she is not criminally
liable.
In People v. Laurio, 200 SCRA
489, it was held that it must be A law student resented the fact that
established by positive and conclusive his brother was killed by A. He hired
evidence, not by conjectures or B to kill A and offered him
speculations. P50,000.00. He disclosed to B that A
was being arraigned in the City Hall of righteousness, the law shall reward
Manila and told him to execute the him for doing so.”
plan on the following day. In the
evening of that same day, the law Where there are several persons who
student changed his mind so he participated, like in a killing, and they
immediately went to the police and attacked the victim simultaneously, so
told them to dispatch police officers to much so that it cannot be known what
prevent B from committing the crime. participation each one had, all these
Unfortunately, the police were caught participants shall be considered as
in traffic causing their delay, so that having acted in conspiracy and they
when they reached the place, B had will be held collectively responsible.
already killed A. In this case, there Do not search for an agreement
was no proposal but a conspiracy. among the participants. If they acted
They have conspired to execute a simultaneously to bring about their
crime but the crime involved here is common intention, conspiracy exists.
murder and a conspiracy to commit And when conspiracy exists, do not
murder is not a crime in itself but consider the degree of participation of
merely a basis for incurring criminal each conspirator because the act of
liability. This is just a preparatory one is the act of all. As a general
act, and his desistance negates rule, they have equal criminal
criminal liability. responsibility.
Proposal is true only up to the point

where the party to whom the proposal Question & Answer
was made has not yet accepted the
proposal. Once the proposal was
accepted, a conspiracy arises. There are several offenders who
Proposal is unilateral, one party acted simultaneously. When they
makes a proposition to the other; fled, a victim was found dead. Who
conspiracy is bilateral, it requires two should be liable for the killing if who
parties. actually killed the victim is not
known?
As pointed out earlier, desistance is
true only in the attempted stage. There is collective responsibility
Before this stage, there is only a here. Without the principle of
preparatory stage. Conspiracy is only conspiracy, nobody would be
in the preparatory stage. prosecuted; hence, there is the rule
on collective responsibility since it
The Supreme Court has ruled that cannot be ascertained who actually
one who desisted is not criminally killed the victim.
liable. “When a person has set foot
to the path of wickedness and brings There is conspiracy when the
back his foot to the path of offenders acted simultaneously
pursuing a common criminal design; accurate to think that when there is a

thus, acting out a common criminal conspiracy, all are principals.
intent.
Notwithstanding that there is
Illustration: conspiracy, a co-conspirator may be
held liable only as an accomplice.
A, B and C have been courting the That means the penalty which shall
same lady for several years. On be imposed upon him is one degree
several occasions, they even visited lower.
the lady on intervening hours. For example, there was a planned
Because of this, A, B and C became robbery, and the taxi driver was
hostile with one another. One day, D present during the planning. There,
invited the young lady and she the conspirators told the taxi driver
accepted the invitation. Eventually, that they are going to use his taxicab
the young lady agreed to marry D. in going to the place of robbery. The
When A, B and C learned about this, taxi driver agreed but said, “I will
they all stood up to leave the house bring you there, and after committing
of the young lady feeling the robbery I will return later”. The
disappointed. When A looked back at taxi driver brought the conspirators
the young lady with D, he saw D where the robbery would be
laughing menacingly. At that committed. After the robbery was
instance, A stabbed D. C and B finished, he took the conspirators
followed. In this case, it was held back to his taxi and brought them
that conspiracy was present. away. It was held that the taxi driver
was liable only as an accomplice. His
The common notion is that when cooperation was not really
there is conspiracy involved, the indispensable. The robbers could
participants are punished as have engaged another taxi. The taxi
principals. This notion is no longer driver did not really stay during the
absolute. In the case of People v. commission of the robbery. At most,
Nierra, the Supreme Court ruled that what he only extended was his
even though there was conspiracy, if cooperation. That is why he was
a co-conspirator merely cooperated in given only that penalty for an
the commission of the crime with accomplice.
insignificant or minimal acts, such
that even without his cooperation, the A, B, and C, under the influence of
crime could be carried out as well, marijuana, broke into a house
such co-conspirator should be because they learned that the
punished as an accomplice only. The occupants have gone on an excursion.
reason given is that penal laws always They ransacked the house. A got a
favor a milder form of responsibility colored TV, B saw a camera and took
upon an offender. So it is no longer that, and C found a can of salmon and
took that. In the crime of robbery
with force upon things, the penalty is liable for robbery with rape. The
based on the totality of the value of crime committed is robbery with rape,
the personal property taken and not which is not a complex crime, but an
on the individual property taken by indivisible felony under the Article 294
him. of the Revised Penal Code. Even if B
and C did not know that rape was
In Siton v. CA, it was held that the being committed and they agreed
idea of a conspiracy is incompatible only and conspired to rob, yet rape
with the idea of a free for all. There was part of robbery. Rape can not be
is no definite opponent or definite separated from robbery.
intent as when a basketball crowd
beats a referee to death. A, B and C agreed to rob the house of
D. It was agreed that A would go the
second floor, B would stay in the first
Composite crimes floor, and C stands guard outside. All
went to their designated areas in
Composite crimes are crimes which, pursuit of the plan. While A was
in substance, consist of more than ransacking the second floor, the
one crime but in the eyes of the law, owner was awakened. A killed him.
there is only one crime. For example, A, B and C will be liable for robbery
the crimes of robbery with homicide, with homicide. This is because, it is
robbery with rape, robbery with well settled that any killing taking
physical injuries. place while robbery is being
committed shall be treated as a single
In case the crime committed is a indivisible offense.
composite crime, the conspirator will
be liable for all the acts committed As a general rule, when there is
during the commission of the crime conspiracy, the rule is that the act of
agreed upon. This is because, in the one is the act of all. This principle
eyes of the law, all those acts done in applies only to the crime agreed
pursuance of the crime agreed upon upon.
are acts which constitute a single
crime. The exception is if any of the co-
conspirator would commit a crime not
Illustrations: agreed upon. This happens when the
crime agreed upon and the crime
A, B, and C decided to commit committed by one of the co-
robbery in the house of D. Pursuant conspirators is distinct crimes.
to their agreement, A would ransack
the second floor, B was to wait Exception to the exception: In acts
outside, and C would stay on the first constituting a single indivisible
floor. Unknown to B and C, A raped offense, even though the co-
the girl upstairs. All of them will be conspirator performed different acts
bringing about the composite crime, of the Revised Penal Code. That was
all will be liable for such crime. They not what the examiner had in mind
can only evade responsibility for any because the question does not require
other crime outside of that agreed the candidate to classify but also to
upon if it is proved that the particular define. Therefore, the examiner was
conspirator had tried to prevent the after the classifications under Articles
commission of such other act. 3, 6 and 9.
The rule would be different if the Felonies are classified as follows:

crime committed was not a composite
crime. (1) According to the manner of
their commission
Illustration:
Under Article 3, they are
A, B and C agreed to kill D. When classified as, intentional felonies
they saw the opportunity, A, B and C or those committed with
killed D and after that, A and B ran deliberate intent; and culpable
into different directions. C inspected felonies or those resulting from
the pocket of the victim and found negligence, reckless
that the victim was wearing a ring – a imprudence, lack of foresight or
diamond ring – and he took it. The lack of skill.
crimes committed are homicide and
theft. As far as the homicide is (2) According to the stages of their
concerned, A, B and C are liable execution
because that was agreed upon and
theft was not an integral part of Under Article 6., felonies are
homicide. This is a distinct crime so classified as attempted felony
the rule will not apply because it was when the offender commences
not the crime agreed upon. Insofar the commission of a felony
as the crime of theft is concerned, C directly by overt acts, and does
will be the only one liable. So C will not perform all the acts of
be liable for homicide and theft. execution which should produce
the felony by reason of some
cause or accident other than his
CLASSIFICATION OF FELONIES own spontaneous desistance;
frustrated felony when the
This question was asked in the bar offender commences the
examination: How do you classify commission of a felony as a
felonies or how are felonies classified? consequence but which would
produce the felony as a
What the examiner had in mind was consequence but which
Articles 3, 6 and 9. Do not write the nevertheless do not produce the
classification of felonies under Book 2 felony by reason of causes
independent of the perpetrator; If the penalty is fine and exactly

and, consummated felony when P200.00, it is only considered a light
all the elements necessary for felony under Article 9.
its execution are present.
If the fine is imposed as an
(3) According to their gravity alternative penalty or as a single
penalty, the fine of P200.00 is
Under Article 9, felonies are considered a correctional penalty
classified as grave felonies or under Article 26.
those to which attaches the
capital punishment or penalties If the penalty is exactly P200.00,
which in any of their periods are apply Article 26. It is considered as
afflictive; less grave felonies or correctional penalty and it prescribes
those to which the law punishes in 10 years. If the offender is
with penalties which in their apprehended at any time within ten
maximum period was years, he can be made to suffer the
correccional; and light felonies fine.
or those infractions of law for
the commission of which the This classification of felony according
penalty is arresto menor. to gravity is important with respect to
the question of prescription of crimes.
Why is it necessary to determine
whether the crime is grave, less grave In the case of light felonies, crimes
or light? prescribe in two months. After two
months, the state loses the right to
To determine whether these felonies prosecute unless the running period is
can be complexed or not, and to suspended. If the offender escapes
determine the prescription of the while in detention after he has been
crime and the prescription of the loose, if there was already judgment
penalty. In other words, these are that was passed, it can be
felonies classified according to their promulgated even if absent under the
gravity, stages and the penalty New Rules on Criminal Procedure. If
attached to them. Take note that the crime is correctional, it prescribes
when the Revised Penal Code speaks in ten years, except arresto mayor,
of grave and less grave felonies, the which prescribes in five years.
definition makes a reference
specifically to Article 25 of the
Revised Penal Code. Do not omit the SUPPLETORY APPLICATION OF THE
phrase “In accordance with Article 25” REVISED PENAL CODE
because there is also a classification
of penalties under Article 26 that was Article 10 is the consequence of the
not applied. legal requirement that you have to
distinguish those punished under
special laws and those under the prosecuted for possession of firearms.
Revised Penal Code. With regard to A violation of a special law can never
Article 10, observe the distinction. absorb a crime punishable under the
Revised Penal Code, because
In Article 10, there is a reservation violations of the Revised Penal Code
“provision of the Revised Penal Code are more serious than a violation of a
may be applied suppletorily to special special law. But a crime in the
laws”. You will only apply the Revised Penal Code can absorb a
provisions of the Revised Penal Code crime punishable by a special law if it
as a supplement to the special law, or is a necessary ingredient of the crime
simply correlate the violated special in the Revised Penal Code.
law, if needed to avoid an injustice. In the crime of sedition, the use of
If no justice would result, do not give firearms is not an ingredient of the
suppletorily application of the Revised crime. Hence, two prosecutions can
Penal Code to that of special law. be had: (1) sedition; and (2) illegal
possession of firearms.
For example, a special law punishes a
certain act as a crime. The special But do not think that when a crime is
law is silent as to the civil liability of punished outside of the Revised Penal
one who violates the same. Here is a Code, it is already a special law. For
person who violated the special law example, the crime of cattle-rustling
and he was prosecuted. His violation is not a mala prohibitum but a
caused damage or injury to a private modification of the crime theft of
party. May the court pronounce that large cattle. So Presidential Decree
he is civilly liable to the offended No. 533, punishing cattle-rustling, is
party, considering that the special law not a special law. It can absorb the
is silent on this point? Yes, because crime of murder. If in the course of
Article 100 of the Revised Penal Code cattle rustling, murder was
may be given suppletory application committed, the offender cannot be
to prevent an injustice from being prosecuted for murder. Murder would
done to the offended party. Article be a qualifying circumstance in the
100 states that every person crime of qualified cattle rustling.
criminally liable for a felony is also Thias was the ruling in People v.
civilly liable. That article shall be Martinada.
applied suppletory to avoid an
injustice that would be caused to the The amendments of Presidential
private offended party, if he would Decree No. 6425 (The Dangerous
not be indemnified for the damages or Drugs Act of 1972) by Republic Act
injuries sustained by him. No. 7659, which adopted the scale of
penalties in the Revised Penal Code,
In People v. Rodriguez, it was held means that mitigating and
that the use of arms is an element of aggravating circumstances can now
rebellion, so a rebel cannot be further be considered in imposing penalties.
Presidential Decree No. 6425 does not shifted is only the burden of evidence,
expressly prohibit the suppletory not the burden of proof.
application of the Revised Penal Code.
The stages of the commission of Justifying circumstances contemplate
felonies will also apply since intentional acts and, hence, are
suppletory application is now allowed. incompatible with dolo. Exempting
circumstances may be invoked in
culpable felonies.
Circumstances affecting criminal
liability
Absolutory cause
There are five circumstances affecting
criminal liability: The effect of this is to absolve the
offender from criminal liability,
(1) Justifying circumstances; although not from civil liability. It has
the same effect as an exempting
(2) Exempting circumstances; circumstance, but you do not call it as
such in order not to confuse it with
(3) Mitigating circumstances; the circumstances under Article 12.
(4) Aggravating circumstances; and Article 20 provides that the penalties

prescribed for accessories shall not be
(5) Alternative circumstances. imposed upon those who are such
with respect to their spouses,
There are two others which are found ascendants, descendants, legitimate,
elsewhere in the provisions of the natural and adopted brothers and
Revised Penal Code: sisters, or relatives by affinity within
the same degrees with the exception
(1) Absolutory cause; and of accessories who profited
themselves or assisting the offender
(2) Extenuating circumstances. to profit by the effects of the crime.
In justifying and exempting Then, Article 89 provides how criminal

circumstances, there is no criminal liability is extinguished:
liability. When an accused invokes
them, he in effect admits the Death of the convict as to the
commission of a crime but tries to personal penalties, and as to
avoid the liability thereof. The burden pecuniary penalties, liability therefor
is upon him to establish beyond is extinguished if death occurs before
reasonable doubt the required final judgment;
conditions to justify or exempt his Service of the sentence;
acts from criminal liability. What is
Amnesty;
Absolutory cause has the effect of an

Absolute pardon; exempting circumstance and they are
predicated on lack of voluntariness
Prescription of the crime; like instigation. Instigation is
associated with criminal intent. Do
Prescription of the penalty; and not consider culpa in connection with
instigation. If the crime is culpable,
Marriage of the offended woman as do not talk of instigation. In
provided in Article 344. instigation, the crime is committed
with dolo. It is confused with
Under Article 247, a legally married entrapment.
person who kills or inflicts physical Entrapment is not an absolutory
injuries upon his or her spouse whom cause. Entrapment does not exempt
he surprised having sexual the offender or mitigate his criminal
intercourse with his or her paramour liability. But instigation absolves the
or mistress in not criminally liable. offender from criminal liability
because in instigation, the offender
Under Article 219, discovering secrets simply acts as a tool of the law
through seizure of correspondence of enforcers and, therefore, he is acting
the ward by their guardian is not without criminal intent because
penalized. without the instigation, he would not
have done the criminal act which he
Under Article 332, in the case of theft, did upon instigation of the law
swindling and malicious mischief, enforcers.
there is no criminal liability but only
civil liability, when the offender and Difference between instigation and
the offended party are related as entrapment
spouse, ascendant, descendant,
brother and sister-in-law living In instigation, the criminal plan or
together or where in case the design exists in the mind of the law
widowed spouse and the property enforcer with whom the person
involved is that of the deceased instigated cooperated so it is said that
spouse, before such property had the person instigated is acting only as
passed on to the possession of third a mere instrument or tool of the law
parties. enforcer in the performance of his
duties.
Under Article 344, in cases of
seduction, abduction, acts of On the other hand, in entrapment, a
lasciviousness, and rape, the criminal design is already in the mind
marriage of the offended party shall of the person entrapped. It did not
extinguish the criminal action. emanate from the mind of the law
enforcer entrapping him. Entrapment
involves only ways and means which
are laid down or resorted to facilitate found out that it was loaded with a
the apprehension of the culprit. dangerous drug. He arrested the
fellow. Defense was that he would
Illustrations: not give a cigarette if he was not
asked. Is he criminally liable? Yes.
An agent of the narcotics command This is a case of entrapment and not
had been tipped off that a certain instigation. Even if the law enforcer
house is being used as an opium den did not ask for a cigarette, the
by prominent members of the society. offender was already committing a
The law enforcers cannot themselves crime. The law enforcer ascertained if
penetrate the house because they do it is a violation of the Dangerous
not belong to that circle so what they Drugs Act. The means employed by
did was to convince a prominent the law enforcer did not make the
member of society to visit such house accused commit a crime. Entrapment
to find out what is really happening is not an absolutory cause because in
inside and that so many cars were entrapment, the offender is already
congregating there. The law enforcers committing a crime.
told the undercover man that if he is
offered a cigarette, then he should try In another instance, a law enforcer
it to find out whether it is loaded with pretended to be a buyer of marijuana.
dangerous drugs or not. This fellow He approached a person suspected to
went to the place and mingled there. be a pusher and prevailed upon this
The time came when he was offered a person to sell him two kilos of dried
stick of cigarette and he tried it to see marijuana leaves and this fellow gave
if the cigarette would affect him. him and delivered them. He
Unfortunately, the raid was conducted apprehended the fellow. Defense is
and he was among those prosecuted instigation, because he would not
for violation of the Dangerous Drugs have come out for the marijuana
Act. Is he criminally liable? No. He leaves if the law enforcer had not
was only there upon instigation of the instigated him. It is a case of
law enforcers. On his own, he would entrapment because the fellow is
not be there. The reason he is there is already committing the crime from
because he cooperated with the law the mere fact that he is possessing
enforcers. There is absence of marijuana. Even without selling,
criminal intent. there is a crime committed by him:
illegal possession of dangerous drugs.
If the law enforcer were able to enter How can one sell marijuana if he is
the house and mingle there, nobody not in possession thereof. The law
would offer him a cigarette because enforcer is only ascertaining if this
he is unknown. When he saw fellow is selling marijuana leaves, so
somebody, he pleaded to spare him a this is entrapment, not instigation.
smoke so this fellow handed to him Selling is not necessary to commit the
the cigarette he was smoking and
crime, mere possession is already a instigation, the private citizen only

crime. cooperates with the law enforcer to a
point when the private citizen upon
A fellow wants to make money. He instigation of the law enforcer
was approached by a law enforcer incriminates himself. It would be
and was asked if he wanted to deliver contrary to public policy to prosecute
a package to a certain person. When a citizen who only cooperated with
that fellow was delivering the the law enforcer. The private citizen
package, he was apprehended. Is he believes that he is a law enforcer and
criminally liable? This is a case of that is why when the law enforcer
instigation; he is not committing a tells him, he believes that it is a civil
crime. duty to cooperate.
A policeman suspected a fellow selling If the person instigated does not

marijuana. The law enforcer asked know that the person is instigating
him, “Are you selling that? How him is a law enforcer or he knows him
much? Could you bring that to the to be not a law enforcer, this is not a
other fellow there?” When he case of instigation. This is a case of
brought it there, the person, who inducement, both will be criminally
happens to be a law enforcer, to liable.
whom the package was brought to
found it to be marijuana. Even In entrapment, the person entrapped
without bringing, he is already should not know that the person
possessing the marijuana. The fact trying to entrap him was a law
that he was appointed to another enforcer. The idea is incompatible
person to find out its contents, is to with each other because in
discover whether the crime is entrapment, the person entrapped is
committed. This is entrapment. actually committing a crime. The
officer who entrapped him only lays
The element which makes instigation down ways and means to have
an absolutory cause is the lack of evidence of the commission of the
criminal intent as an element of crime, but even without those ways
voluntariness. and means, the person entrapped is
actually engaged in a violation of the
If the instigator is a law enforcer, the law.
person instigated cannot be criminally
liable, because it is the law enforcer Instigation absolves the person
who planted that criminal mind in him instigated from criminal liability. This
to commit the crime, without which is based on the rule that a person
he would not have been a criminal. If cannot be a criminal if his mind is not
the instigator is not a law enforcer, criminal. On the other hand,
both will be criminally liable, you entrapment is not an absolutory
cannot have a case of instigation. In cause. It is not even mitigating.
extenuating circumstance insofar as

In case of somnambulism or one who the unwed mother or the maternal
acts while sleeping, the person grandparents is concerned, but not
involved is definitely acting without insofar as the father of the child is
freedom and without sufficient concerned. Mother killing her new
intelligence, because he is asleep. He born child to conceal her dishonor,
is moving like a robot, unaware of penalty is lowered by two degrees.
what he is doing. So the element of Since there is a material lowering of
voluntariness which is necessary in the penalty or mitigating the penalty,
dolo and culpa is not present. this is an extenuating circumstance.
Somnambulism is an absolutory
cause. If element of voluntariness is The concealment of honor by mother
absent, there is no criminal liability, in the crime of infanticide is an
although there is civil liability, and if extenuating circumstance but not in
the circumstance is not among those the case of parricide when the age of
enumerated in Article 12, refer to the the victim is three days old and
circumstance as an absolutory cause. above.
Mistake of fact is not absolutory In the crime of adultery on the part of

cause. The offender is acting without a married woman abandoned by her
criminal intent. So in mistake of fact, husband, at the time she was
it is necessary that had the facts been abandoned by her husband, is it
true as the accused believed them to necessary for her to seek the
be, this act is justified. If not, there company of another man.
is criminal liability, because there is Abandonment by the husband does
no mistake of fact anymore. The not justify the act of the woman. It
offender must believe he is only extenuates or reduces criminal
performing a lawful act. liability. When the effect of the
circumstance is to lower the penalty
Extenuating circumstances there is an extenuating circumstance.
The effect of this is to mitigate the A kleptomaniac is one who cannot

criminal liability of the offender. In resist the temptation of stealing
other words, this has the same effect things which appeal to his desire.
as mitigating circumstances, only you This is not exempting. One who is a
do not call it mitigating because this kleptomaniac and who would steal
is not found in Article 13. objects of his desire is criminally
liable. But he would be given the
Illustrations: benefit of a mitigating circumstance
analogous to paragraph 9 of Article
An unwed mother killed her child in 13, that of suffering from an illness
order to conceal a dishonor. The which diminishes the exercise of his
concealment of dishonor is an will power without, however,
depriving him of the consciousness of crime. But because the actor

his act. So this is an extenuating acted without voluntariness,
circumstance. The effect is to there is absence of dolo or
mitigate the criminal liability. culpa. There is no criminal;
(4) Since there is a crime

Distinctions between justifying committed but there is no
circumstances and exempting criminal, there is civil liability
circumstances for the wrong done. But there
is no criminal liability.
In justifying circumstances – However, in paragraphs 4 and 7
of Article 12, there is neither
(1) The circumstance affects the criminal nor civil liability.
act, not the actor;
When you apply for justifying or
(2) The act complained of is exempting circumstances, it is
considered to have been done confession and avoidance and burden
within the bounds of law; of proof shifts to the accused and he
hence, it is legitimate and lawful can no longer rely on weakness of
in the eyes of the law; prosecution’s evidence
(3) Since the act is considered

lawful, there is no crime, and Justifying circumstances
because there is no crime, there
is no criminal; Since the justifying circumstances are
in the nature of defensive acts, there
(4) Since there is no crime or must be always unlawful aggression.
criminal, there is no criminal The reasonableness of the means
liability as well as civil liability. employed depends on the gravity of
the aggression. If the unlawful
In exempting circumstances – aggressor was killed, this can only be
justified if it was done to save the life
(1) The circumstances affect the of the person defending or the person
actor, not the act; being defended. The equation is “life
was taken to save life.”
(2) The act complained of is
actually wrongful, but the actor
acted without voluntariness. He Self Defense
is a mere tool or instrument of
the crime; In justifying circumstances, the most
important is self-defense. When this
(3) Since the act complained of is is given in the bar, it is the element of
actually wrongful, there is a unlawful aggression that is in issue.
Never confuse unlawful aggression went to see a movie and came home
with provocation. Mere provocation is late that evening. The accused was
not enough. already asleep. The brother-in-law
came up first while his wife was still in
Illustration: the staircase. He started feeling
through the dark, and in the process,
A and B are long standing enemies. he awakened the accused. Believing
Because of their continuous quarrel that her honor was at stake, she got a
over the boundaries of their adjoining pair of scissors and stabbed the man.
properties, when A saw B one When the lights were turned on, she
afternoon, he approached the latter in realized that she had stabbed her
a menacing manner with a bolo in his brother-in-law. The accused claimed
hand. When he was about five feet as having acted in defense of her
away from B, B pulled out a revolver honor and mistake of fact. She said
and shot A on the chest, killing him. that she believed that her own honor
Is B criminally liable? What crime was at stake. It was held that the
was committed, if any? whole matter is purely her
imagination. Touching the arm could
The act of A is nothing but a not produce such danger as would
provocation. It cannot be really be imminent to the honor of the
characterized as an unlawful woman.
aggression because in criminal law,
an unlawful aggression is an attack or Apparently, under the Revised Penal
a threatened attack which produces Code, the honor of a woman in
an imminent danger to the life and respect of her defense is equated with
limb of the one resorting to self- her virginity.
defense. In the facts of the problem
given above, what was said was that In US v. Jaurigue, it was held that it
A was holding a bolo. That bolo does was not possible to rape the accused
not produce any real or imminent because the whole thing transpired in
danger unless a raises his arm with the church, where there were so
the bolo. As long as that arm of A many people. Therefore, her availing
was down holding the bolo, there is of defense of honor is not tenable.
no imminent danger to the life or limb She could not possibly be raped in
of B. Therefore, the act of B in that place. Defense of honor here is
shooting A is not justified. being equated with one of abuse of
chastity of a woman. In this case, the
Defense of rights is included in the offended party placed his hand on the
circumstances of defense and so is thigh of the woman who was then
defense of honor. praying. There was already some
sort of aggression but it was not
In US v. Mateo, while a woman was enough to warrant the act resorted to
sleeping, her sister and brother-in-law by the accused in getting a small
knife from her bag and thrusting it on she jumped out to prevent this other
the chest of the offended party. woman from pouring gasoline around
the house. The woman who was
Do not confuse unlawful aggression pouring gasoline had a bolo, so she
with provocation. What justifies the started hacking the other woman with
killing of a supposed unlawful it. They grappled with the bolo. At
aggressor is that if the offender did that moment, the one who jumped
not kill the aggressor, it will be his out of the house was able to wrest
own life that will be lost. That will be the bolo away and started hacking the
the situation. If that is not the other woman. It was held that the
situation, even if there was an hacking was not justified. Actually,
unlawful aggression that has already when she killed the supposed unlawful
begun, you cannot invoke self- aggressor, her life and limb were no
defense. longer in imminent danger. That is
the focal point.
Illustration:
At the time the accused killed the
Two policemen quarreled inside a supposed unlawful aggressor, was her
police precinct. One shot the other. life in danger? If the answer is no,
The other was wounded on his thigh. there is no self-defense. But while
The policeman who was wounded on there may be no justifying
the thigh jumped on the arm of the circumstance, do not forget the
fellow who shot him. In the process, incomplete self-defense. This is a
they wrestled for possession of the mitigating circumstance under
gun. The policeman who shot the paragraph 1 of Article 13. This
other guy fell on the floor. On that mitigating circumstance is either
point, this policeman who was shot at privileged or ordinary. If ordinary, it
the thigh was already able to get hold has the effect of reducing the
of the revolver. In that position, he imposable penalty to the minimum
started emptying the revolver of the period. But if it is privileged, it has
other policeman who was lying on the the effect of lowering the penalty by
floor. In this case, it was held that one to two degrees, depending on
the defense of self-defense is no how the court will regard the absence
available. The shooting was not or presence of conditions to justify
justified. the act.
In People v. Rodriguez, a woman

went into the house of another Defense of property rights
woman whom she suspected of
having an affair with her husband. This can only be invoked if the life
She started pouring gasoline on the and limb of the person making the
house of the woman. Since the defense is also the subject of unlawful
woman has children inside the house,
aggression. Life cannot be equal to

property.
Incomplete self-defense or incomplete
Defense of stranger justifying circumstance or incomplete
exempting circumstances
If the person being defended is
already a second cousin, you do not When you say incomplete justifying
invoke defense of relative anymore. circumstance, it means that not all
It will be defense of stranger. This is the requisites to justify the act are
vital because if the person making the present or not the requisites to
defense acted out or revenge, exempt from criminal liability are
resentment or some evil motive in present.
killing the aggressor, he cannot
invoke the justifying circumstance if How, if at all, may incomplete self-
the relative defended is already a defense affect the criminal liability of
stranger in the eyes of the law. On the offender?
the other hand, if the relative
defended is still within the coverage If the question specifically refers to
of defense of relative, even though he incomplete self-defense, defense of
acted out of some evil motive, it relative or defense of stranger, you
would still apply. It is enough that have to qualify your answer.
there was unlawful aggression against
the relative defended, and that the First, to have incomplete self-defense,
person defending did not contribute to the offended party must be guilty of
the unlawful aggression. unlawful aggression. Without this,
there can be no incomplete self-
defense, defense of relative, or
Question & Answer defense of stranger.
Second, if only the element of

The person being defended was unlawful aggression is present, the
a relative – a first cousin. But the other requisites being absent, the
fellow who killed the aggressor had offender shall be given only the
some score to settle with the benefit of an ordinary mitigating
aggressor. Is he entitled to a circumstance.
justifying circumstance?
Third, if aside from the element of
Yes. In law, the condition that unlawful aggression another requisite,
a person making the defense did not but not all, are present, the offender
act out of revenge, resentment or evil shall be given the benefit of a
motive is not a requirement in privileged mitigating circumstance. In
defense of relative. This is only such a case, the imposable penalty
required in defense of strangers. shall be reduced by one or two
degrees depending upon how the State of necessity

court regards the importance of the
requisites present. Or absent. The state of necessity must not have
been created by the one invoking the
If the question refers generally to justifying circumstances. For
justifying or exempting example, A drove his car beyond the
circumstances, the question should speed limit so much so that when he
be, “how may incomplete justifying reached the curve, his vehicle skidded
circumstance affect criminal liability of towards a ravine. He swerved his car
the offender, if at all?” towards a house, destroying it and
killing the occupant therein. A cannot
Make a separate answer with respect be justified because the state of
to self-defense, defense of relative or necessity was brought about by his
defense of stranger because in these own felonious act.
cases, you always have to specify the
element of unlawful aggression; Civil liability referred to in a state of
otherwise, there would be no necessity is based not on the act
incomplete self-defense, defense of committed but on the benefit derived
relative or defense of stranger. In from the state of necessity. So the
general, with respect to other accused will not be civilly liable if he
circumstances, you need only to say did not receive any benefit out of the
this: state of necessity. On the other
If less than a majority of the hand, persons who did not participate
requisites necessary to justify the act in the damage or injury would be pro
or exempt from criminal liability are tanto civilly liable if they derived
present, the offender shall only be benefit out of the state of necessity.
entitled to an ordinary mitigating
circumstance. Civil liability is based on the benefit
derived and not on the act, damage
If a majority of the requisites needed or injury caused. It is wrong to treat
to justify the act or exempt from this as an exception to the rule that in
criminal liability are present, the justifying circumstances, there is no
offender shall be given the benefit of criminal nor civil liability, on the
a privileged mitigating circumstance. principle that “no one should enrich
The penalty shall be lowered by one himself at the expense of another”.
or two degrees. When there are only
two conditions to justify the act or to Illustration:
exempt from criminal liability, the
presence of one shall be regarded as A and B are owners of adjoining
the majority. lands. A owns the land for planting
certain crops. B owns the land for
raising certain goats. C used another
land for a vegetable garden. There
was heavy rain and floods. Dam was This is what you call incomplete
opened. C drove all the goats of B to justification of fulfillment of duty or
the land of A. The goats rushed to incomplete justification of exercise of
the land of A to be saved, but the a right. In that case, the penalty
land of A was destroyed. The author would be reduced by one or two
of the act is C, but C is not civilly degrees.
liable because he did not receive
benefits. It was B who was benefited, In People v. Oanis and Callanta,
although he was not the actor. He the accused Chief of Police and the
cannot claim that it was fortuitous constabulary soldier were sent out to
event. B will answer only to the arrest a certain Balagtas, supposedly
extent of the benefit derived by him. a notorious bandit. There was an
If C who drove all the goats is order to kill Balagtas if he would
accused of malicious mischief, his resist. The accused arrived at the
defense would be that he acted out of house of a dancer who was
a state of necessity. He will not be supposedly the girlfriend of Balagtas.
civilly liable. When they were there, they saw a
Fulfillment of duty certain person who resembled
Balagtas in all his bodily appearance
In the justifying circumstance of a sleeping on a bamboo bed but facing
person having acted out of fulfillment the other direction. The accused,
of a duty and the lawful exercise of a without going around the house,
right or office, there are only two started firing at the man. They found
conditions: out later on that the man was not
really Balagtas. They tried to invoke
(1) The felony was committed while the justifying circumstance of having
the offender was in the acted in fulfillment of a duty.
fulfillment of a duty or in the
lawful exercise of a right or The second requisite is absent
office; and because they acted with negligence.
There was nothing that prevented
(2) The resulting felony is the them from looking around the house
unavoidable consequence of the and looking at the face of the fellow
due fulfillment of the duty or who was sleeping. There could not be
the lawful exercise of the right any danger on their life and limb.
or office. Hence, they were held guilty of the
crime of murder because the fellow
Invariably, when you are given a was killed when he was sleeping and
problem on this premise, and the first totally defenseless. However, the
condition is present, but the second is Supreme Court granted them the
not because the offender acted with benefit of incomplete justification of
culpa, the offender will be entitled to fulfillment of duty and the penalty
a privelege mitigating circumstance. was reduced by one or two degrees.
because he acted with imprudence in

Do not confuse fulfillment of a duty firing toward several people where
with self-defense. the offender had run. But although
he will be criminally liable, he will be
Illustration: given the benefit of an incomplete
fulfillment of duty.
A, a policeman, while waiting for his
wife to go home, was suddenly
stabbed at the back by B, a hoodlum, Exempting circumstances
who mistook him for someone else.
When A saw B, he drew his revolver In exempting circumstances, the
and went after B. After firing a shot reason for the exemption lies on the
in the air, B did not stop so A shot B involuntariness of the act – one or
who was hit at a vital part of the some of the ingredients of
body. B died. Is the act of A voluntariness such as criminal intent,
justified? intelligence, or freedom of action on
the part of the offender is missing. In
Yes. The justifying circumstance of case it is a culpable felony, there is
self-defense cannot be invoked absence of freedom of action or
because the unlawful aggression had intelligence, or absence of negligence,
already ceased by the time A shot B. imprudence, lack of foresight or lack
When the unlawful aggressor started of skill.
fleeing, the unlawful aggression
ceased. If the person attacked runs
after him, in the eyes of the law, he Imbecility and insanity
becomes the unlawful aggressor.
Self-defense cannot be invoked. You There is complete absence of
apply paragraph 5 on fulfillment of intelligence. Imbecile has an IQ of 7.
duty. The offender was not only The intellectual deficiency is
defending himself but was acting in permanent. There is no lucid interval
fulfillment of a duty, to bring the unlike in insanity.
criminal to the authorities. As long as
he was not acting out of malice when The insanity that is exempting is
he fired at the fleeing criminal, he limited only to mental aberration or
cannot be made criminally liable. disease of the mind and must
However, this is true only if it was the completely impair the intelligence of
person who stabbed was the one the accused. Under common law
killed. But if, let us say, the countries, emotional or spiritual
policeman was stabbed and despite insanity are exempting circumstances
the fact that the aggressor ran into a unlike in this jurisdiction because the
crowd of people, the policeman still Revised Administrative Code, as
fired indiscriminately. The policeman defined is limited to mental aberration
would be held criminally liable
of the mind. This was the ruling in be an application filed with the court
People v. Dungo. which should pronounce sentence.
Note that the commitment of the
In People v. Rafanan, decided on offender in a reformatory is just a
November 21, 1991, the following consequence of the suspension of the
are the two tests for exemption on sentence. If the sentence is not
grounds of insanity: suspended, there is no commitment
in a reformatory. The commitment is
(1) The test of cognition, or in a penitentiary, since suspension of
whether the accused acted with sentence requires certain conditions:
complete deprivation of
intelligence in committing said (1) The crime committed should not
crime; and be punishable by reclusion
perpetua or death penalty;
(2) The test of volition, or whether
the accused acted in total (2) The offender should not have
deprivation of freedom of will. been given the benefit of a
suspended sentence before.
Schizoprenia (dementia praecox) can This means he is a first timer;
only be considered a mitigating
circumstance because it does not (3) He must be below 18 years old
completely deprive the offender of because a youthful offender is
consciousness of his acts. one who is below 18.
Note that the age of majority has

been reduced to 18. There is no
Minority more bracket where the offender is a
minor yet no longer entitled to a
In exempting circumstances, the most mitigating circumstance. An offender
important issue is how the minority of below 18 is always entitled to a
the offender affected his criminal mitigating or exempting
liability. It seems that the view of circumstance.
many is that when the offender is a
youthful offender, he must necessarily How does the minority of the offender
be confined in a reformatory. This is affect his criminal liability?
wrong. A youthful offender can only
be confined in a reformatory upon (1) If the offender is within the
order of the court. Under the bracket of nine years old
amendment to Presidential Decree exactly or less, he is exempt
No. 603, Presidential Decree No. 1179 from criminal liability but not
requires that before a youthful from civil liability. This type of
offender may be given the benefit if a offenders are absolutely
suspension of sentence, there must exempt. Even if the offender
nine years or below acted with

discernment, this should not be Suspension of sentence is not
taken against him because in automatic. If the youthful offender
this age bracket, the exemption has filed an application therefor.
is absolute.
(3) If at the time the judgment is to
(2) If over nine but below 15, a be promulgated he is already
distinction has to be made above 18, he cannot avail of a
whether the offender acted with suspended sentence. The
or without discernment. The reason is because if the
burden is upon the prosecution sentence were to be suspended,
to prove that the offender acted he would be committed in a
with discernment. It is not for reformatory. Since he cannot
the minor to prove that he be committed to a reformatory
acted without discernment. All anymore because he is not less
that the minor has to show is than 18 years old, he would
that he is within the age have to be committed to a
bracket. If the prosecution penitentiary. That means
would want to pin criminal promulgation of the sentence
liability on him, it has to prove shall not be suspended. If the
that the crime was committed sentence should not be
with discernment. Here, if the suspended, although the minor
offender was exempt from may be qualified, the court will
criminal liability because the promulgate the sentence but
prosecution was not able to the minor shall be entitled to
prove that the offender acted the reduction of the penalty by
with discernment, he is only at least two degrees.
civilly liable but he will be
committed to the surveillance of When the offender is over nine
his parents who will be required but below 15, the penalty to be
to report to the court imposed is discretionary on the
periodically on the progress or court, but lowered by at least
development of the offender. two degrees. It may be
lowered by three or four
If the offender is proven to have degrees, depending upon
acted with discernment, this is whether the court deems best
where the court may give him for the interest of the offender.
the benefit of a suspended The limitation that it should be
sentence. He may be given the lowered by at least two degrees
benefit of a suspended sentence is just a limitation on the power
under the conditions mentioned of the court to reduce the
earlier and only if he would file penalty. It cannot be less than
an application therefor. two degrees.
is civil liability, yet, in paragraph 4 of

(4) If the offender is 15 years old Article 12, there is no civil liability as
and above but below 18, there well as criminal liability. The driver is
is no exemption anymore but he not under obligation to defray the
is also given the benefit of a medical expenses.
suspended sentence under the
conditions stated earlier and if However, correlate paragraph 4 of
at the time the sentence is Article 12 with the second paragraph
promulgated, he is not 18 years of Article 275. Article 275 gives you
old or over yet. If the sentence the crime of abandoning the victim of
is promulgated, the court will one’s own accident. It is a crime.
impose a penalty one degree Here, the accident referred to in
lower. This time it is fixed. It is paragraph 2 of Article 275 is in the
to be imposed one degree lower concept of paragraph 4 of Article 12.
and in the proper periods This means that the offender must be
subject to the rules in Article performing a lawful act, that he was
64. doing it with due care but somehow,
injury resulted by mere accident
without fault or intention of causing it.
Damnum absque injuria
If at the very beginning, the offender
Under Article 12, paragraph 4, the was negligent, you do not apply
offender is exempt not only from Article 275, paragraph 2. Instead, it
criminal but also from civil liability. will be Article 365 on criminal
This paragraph embodies the Latin negligence. Notice that in the last
maxim “damnum absque injuria”. paragraph of Article 365, in the case
of the so-called hit and run drivers
Illustration: who have injured somebody and
would abandon the victim of the
A person who is driving his car within accident, the penalty is qualified to a
the speed limit, while considering the higher degree. Here, under
condition of the traffic and the paragraph 4 of Article 12, the
pedestrians at that time, tripped on a infliction of the injury by mere
stone with one of his car tires. The accident does not give rise to a
stone flew hitting a pedestrian on the criminal or civil liability, but the
head. The pedestrian suffered person who caused the injury is duty
profuse bleeding. What is the liability bound to attend to the person who
of the driver? was injured. If he would abandon
him, it is in that abandonment that
There is no civil liability under the crime arises which is punished
paragraph 4 of Article 12. Although, under the second paragraph of
this is just an exempting Article 275.
circumstance, where generally there
Compulsion of irresistible force and Mitigating circumstances

under the impulse of an
uncontrollable fear Distinctions between ordinary
mitigating circumstances and
The offender must be totally deprived privileged mitigating circumstances
of freedom. If the offender has still
freedom of choice, whether to act or (1) As to the nature of the
not, even if force was employed on circumstances
him or even if he is suffering from
uncontrollable fear, he is not exempt Ordinary mitigating
from criminal liability because he is circumstances can be offset by
still possessed with voluntariness. In aggravating circumstances.
exempting circumstances, the
offender must act without Privilege mitigating
voluntariness. circumstance can never be
offset by any aggravating
In a situation where the offender circumstance.
would otherwise be exempt, but the
requisites for exemption are not all (2) As to effect
present, the offender is still entitled to
a mitigating circumstance of Ordinary mitigating
incomplete exemption under circumstances, if not offset, will
paragraph 1 of Article 13. Apply the operate to reduce the penalty to
rule if majority of the requisites to the minimum period, provided
exempt from criminal liability are the penalty is a divisible one.
present. The offender shall be given
the benefit of privelege mitigating Privilege mitigating
circumstances. That means that the circumstances operate to
penalty prescribed of the crime reduce the penalty by one or
committed shall be reduced by one or two degrees, depending upon
two degrees in accordance with Article what the law provides.
69 of the Revised Penal Code. If less
than a majority of the requisites for You can easily detect whether the
exemption are present, the offender circumstance which mitigates the
shall be given only the benefit of liability of the offender is privilege or
ordinary mitigating circumstances. not, that is, if the penalty is reduced
That means the penalty shall be by degree. If the penalty is lowered
reduced to the minimum period of the by one or two degrees, it is privilege;
prescribed penalty, unless the therefore, even if there is an
mitigating circumstance is offset by aggravating circumstance, do not
an aggravating circumstance. compensate because that would be
violating the rules.
lower first the penalty to the proper

The circumstances under Article 13 degree. That is precisely why this
are generally ordinary mitigating, circumstance is considered privileged.
except in paragraph 1, where it is It takes preference over all other
privilege, Article 69 would apply. So circumstances.
also, paragraph 2, in cases where the
offender is below 18 years old, such
an offender if criminally liable is Question & Answer
entitled to the lowering of penalty by
one degree. But if over nine but
under 15, he is entitled to a A 17 year old boy committed
discretionary penalty of at least two parricide. Will he be given the benefit
degrees lower. When there is a of Indeterminate Sentence Law?
lowering of penalties by degrees, it is Then, the facts state, penalty for
a privilege. It cannot be offset by an parricide is reclusion perpetua to
aggravating circumstance. death.
Although the bulk of the You have learned that the

circumstances in Article 13 are Indeterminate Sentence Law does not
ordinary mitigating circumstances, apply, among other situations, when
yet, when the crime committed is the penalty imposed is death or life
punishable by a divisible penalty, two imprisonment. But then in the
or more of this ordinary mitigating problem given, the offender is a 17-
circumstances shall have the effect of year old boy. That circumstance is
a privilege mitigating circumstances if privileged. So before you go in the
there is no aggravating circumstance Indeterminate Sentence Law, you
at all. have to apply that circumstance first.
Being a 17-year old boy, therefore,
Correlate Article 13 with Articles 63 the penalty would go one degree
and 64. Article 13 is meaningless lower and the penalty for parricide
without knowing the rules of imposing which now stands at reclusion
the penalties under Articles 63 and perpetua will go down to reclusion
64. temporal. Reclusion temporal is
already governed by the
In bar problems, when you are given Indeterminate Sentence Law.
indeterminate sentences, these
articles are very important. The answer, therefore, is yes.
He shall be given the benefit of the
When the circumstance which Indeterminate Sentence Law.
mitigates criminal liability is Although the penalty prescribed for
privileged, you give effect to it above the crime committed is reclusion
all considerations. In other words, perpetua, that is not the imposable
before you go into any circumstance, penalty, since being 17 years old is a
privilege mitigating circumstance. the age of the offender at the time

That privilege lowers the penalty by the sentence is to be promulgated.
one degree. The imposable penalty,
therefore, is reclusion temporal. The
Indeterminate Sentence Law applies Praeter intentionem
to this and so the offender will be
given its benefit. The common circumstance given in
the bar of praeter intentionem, under
Criminal laws are to be paragraph 3, means that there must
construed always in a manner liberal be a notable disproportion between
or lenient to the offender. Between the means employed by the offender
giving the offender the benefit of the compared to that of the resulting
Indeterminate Sentence Law and felony. If the resulting felony could
withholding it away from him, there is be expected from the means
more reason to give him its benefit. employed, this circumstance does not
It is wrong for you to determine avail. This circumstance does not
whether the Indeterminate Sentence apply when the crime results from
Law will apply or not on the basis of criminal negligence or culpa. When
reclusion perpetua because that is not the crime is the product of reckless
the imposable penalty. The moment imprudence or simple negligence,
you do that, you disregard the mitigating circumstances does not
privileged character of minority. You apply. This is one of the three
are only treating it as an ordinary instances where the offender has
mitigating circumstance. Privilege performed a felony different from that
mitigating circumstance will apply which he intended. Therefore, this is
over and above all other the product of intentional felony, not
considerations. When you arrive at a culpable one.
the correct penalty, that is the time
when you find out whether the
Indeterminate Sentence Law will Sufficient threat or provocation
apply or not.
This is mitigating only if the crime
For purposes of lowering the penalty was committed on the very person
by one or two degrees, the age of the who made the threat or provocation.
offender at the time of the The common set-up given in a bar
commission of the crime shall be the problem is that of provocation was
basis, not the age of the offender at given by somebody. The person
the time the sentence is to be provoked cannot retaliate against
imposed. But for purposes of him; thus, the person provoked
suspension of the sentence, the age retaliated on a younger brother or on
of the offender at the time the crime an elder father. Although in fact,
was committed is not considered, it is there is sufficient provocation, it is
not mitigating because the one who
gives the provocation is not the one the provocation or threat and the
against whom the crime was commission of the felony. In other
committed. words, the felony was committed
precisely because he was then and
there provoked.
Question & Answer
However, the recent rulings of the
Supreme Court, as well as the Court
A was walking in front of the of Appeals, has stretched this
house of B. B at that time was with criterion – it is not only a matter of
his brother C. C told B that sometime time anymore. Before, there was a
in the past, A boxed him, and because ruling that if a period of one hour had
he was small, he did not fight back. B lapsed between the provocation and
approached A and boxed him, but A the commission of the felony, this
cannot hit back at B because B is mitigating circumstance is no longer
bigger, so A boxed C. Can A invoke applicable.
sufficient provocation to mitigate
criminal liability? Illustration:
No. Sufficient provocation must The accused went to a barrio dance.

come from the offended party. There In that gathering, there was a bully
may actually be sufficient provocation and he told the accused that he is not
which immediately preceded the act, allowed to go inside. The accused
but if provocation did not come from tried to reason out but the bully
the person offended, paragraph 4, slapped him several times in front of
Article 13 will not apply. so many people, some of whom were
ladies who were being courted by the
accused, so he was humiliated and
The commission of the felony must be embarrassed. However, he cannot
immediate to the threat or fight the bully at that time because
provocation in order that this the latter was much bigger and
circumstance be mitigating. If there heavier. Accused had no choice but to
is sufficient break of time before the go home. When he saw the bully
provocation or threat and the again, this time, he was armed with a
consequent commission of the crime, knife and he stabbed the bully to
the law presupposes that during that death. The evidence for the accused
interval, whatever anger or showed that when he went home, he
diminished self control may have was not able to sleep throughout the
emerged from the offender had night, thinking of the humiliation and
already vanished or disappeared. In outrage done to him, despite the
applying this mitigating circumstance, lapse of about 22 hours. The
the courts are generally considering Supreme Court gave him the benefit
that there must be no break between of this mitigating circumstance. The
reason stated by the Supreme Court suffering from outrage of the

for allowing the accused to be threat or provocation done to
benefited by this mitigating him, then he will still get the
circumstance is that the effect of the benefit of this mitigating
humiliation and outrage emitted by circumstance.
the offended party as a provocation
upon the accused was still present In People v. Diokno, a Chinaman
when he committed the crime and, eloped with a woman. Actually, it was
therefore, the reason for paragraph 4 almost three days before accused was
still applies. The accused was still able to locate the house where the
acting under a diminished self control Chinaman brought the woman. Here,
because he was thinking of the sufficient provocation was one of the
humiliation he suffered in the hands mitigating circumstances considered
of the offended party. The outrage by the Supreme Court in favor of the
was so serious unless vindicated. accused.
This is the correct interpretation of

paragraph 4, Article 13. As long as Vindication of a grave offense
the offender at the time he committed
the felony was still under the The word “offense” should not be
influence of the outrage caused by taken as a crime. It is enough if what
the provocation or threat, he is acting was imputed or what was done was
under a diminished self control. This wrong. In considering whether the
is the reason why it is mitigating. wrong is a grave one upon the person
who committed the crime, his age,
You have to look at two criteria: education and social status will be
considered.
(1) If from the element of time,
there is a material lapse of time Here, in vindication of a grave
stated in the problem and there offense, the vindication need not be
is nothing stated in the problem done by the person upon whom the
that the effect of the threat or grave offense was committed. So,
provocation had prolonged and unlike in sufficient threat or
affected the offender at the provocation where the crime should
time he committed the crime, be inflicted upon the very person who
then you use the criterion based made the threat or provocation, here,
on the time element. it need not be the same person who
committed the grave offense or who
(2) However, if there is that time was offended by the wrong done by
element and at the same time, the offended party.
facts are given indicating that at
the time the offender The word “immediate” here does not
committed the crime, he is still carry the same meaning as that under
paragraph 4. The word “immediate” be taken on the basis of the same set
here is an erroneous Spanish of facts.
translation because the Spanish word
is “proxima” and not If the case involves a series of facts,
“immediatementa.” Therefore, it is then you can predicate any one of
enough that the offender committed these circumstances on one fact and
the crime with the grave offense done the other on another fact and so on.
to him, his spouse, his ascendant or
descendant or to his brother or sister, The passion must be legitimate. As a
whether natural, adopted or rule, it cannot be based on common
legitimate and that is the proximate law relationship because common law
cause of the commission of the crime. relationships are illicit. However,
consider whether passion or
obfuscation is generated by common
Passion or obfuscation law relationship or by some other
human consideration.
This stands on the premise or
proposition that the offender is In a case where the relationship
suffering from a diminished self between the accused and the woman
control because of the passion or he was living with was one of
obfuscation. The same is true with the common law, he came home and
circumstances under paragraphs 4 surprised his common law wife having
and 5. So, there is a ruling to the sexual intercourse with a friend. This
effect that if the offender is given the infuriated him. He killed the friend
benefit of paragraph 4, he cannot be and he claimed passion or
given the benefit of paragraph 5 or 6, obfuscation. The trial court denied his
or vice-versa. Only one of the three claim because the relationship was a
mitigating circumstances should be common law one.
given in favor of the offender.
On review, the accused was given the
However, in one case, one of the benefit of the circumstances and the
mitigating circumstances under basis of considering passion or
paragraphs 4, 5 and 6 stands or obfuscation in favor of the accused
arises from a set of facts, and another was the act of the common law wife
mitigating circumstance arises from in committing adultery right from the
another set of facts. Since they are conjugal bed. Whether or not they are
predicated on different set of facts, married, any man who discovers that
they may be appreciated together, infidelity was committed on the very
although they arose from one and the bed provided by him to the woman
same case. Hence, the prohibition would naturally be subjected to
against considering all these obfuscation.
mitigating circumstances together and
not as one applies only if they would
When a married person surprised his male classmate stabbed said men.
better half in the act of sexual This was held to be obfuscation.
intercourse with another, he gets the
benefit of Article 247. However, that When a man saw a woman bathing,
requisite which in the first place, the almost naked, for which reason he
offender must have surprised his/her raped her, such man cannot claim
spouse actually committing sexual passion as a mitigating circumstance.
intercourse should be present. If the
surprising was done not in the actual A man and a woman were living
act of sexual intercourse but before or together for 15 years. The man left
after it, then Article 247 does not the village where they were living and
apply. never returned home. The common
law wife learned that he was getting
Although this is the ruling, still, the married to a classmate. On the
accused will be given the benefit of scheduled wedding day, she stabbed
sufficient provocation if the the groom in the chest, instantly
intercourse was done in his dwelling. killing him. She confessed and
If this act was done somewhere else explained that any woman cannot
and the accused kills the paramour or tolerate what he did to her. She gave
the spouse, this may be considered as him the best years of her life. She
mitigation of a grave offense to him practically waited for him day and
or otherwise as a situation sufficient night. It was held that passion and
to create passion or obfuscation. obfuscation were considered
Therefore, when a married man upon mitigating. Ingratitude was shown
coming home, surprises his wife who here.
was nude and lying with another man
who was also nude, Article 247 does
not apply. If he kills them, Voluntary surrender
vindication of a grave offense will be
mitigating in favor of the offender. The essence of voluntary surrender
requires that the offender, after
Illustrations: having committed the crime, had
evaded the law enforcers and the law
A is courting B, a receptionist in a enforcers do not know of his
beerhouse. C danced with B. A saw whereabouts. In short, he continues
this and stabbed C. It was held that to elude arrest. If, under this
jealousy is an acknowledged basis of circumstance, the offender would
passion. come out in the open and he gives
himself up, his act of doing so will be
A, a male classmate is escorting B, a considered as indicative of repentance
female classmate. On the way out, and he also saves the government the
some men whistled lustfully. The time and the expense of looking for
him.
the opportunity to go into hiding and

As a general rule, if after committing the law enforcers do not know of his
the crime, the offender did not flee whereabouts. If he would give up, his
and he went with the responding law act of surrendering under such
enforcers meekly, voluntary surrender circumstance indicates that he is
is not applicable. willing to accept the consequences of
the wrong he has done and also
However, there is a ruling that if after thereby saves the government the
committing the crime, the offender effort, the time and the expenses to
did not flee and instead waited for the be incurred in looking for him.
law enforcers to arrive and he
surrendered the weapon he used in Where the offender went to the
killing the victim, the ruling was that municipal building not to own
voluntary surrender is mitigating. In responsibility for the killing, such fact
this case, the offender had the is not tantamount to voluntary
opportunity to go into hiding, the fact surrender as a mitigating
that he did not flee is not voluntary circumstance. Although he admitted
surrender. his participation in the killing, he tried
to avoid responsibility by claiming
However, if he comes out from hiding self-defense which however he was
because he is seriously ill and he went not able to prove. People v. Mindac,
to get medical treatment, the decided December 14, 1992.
surrender is not considered as
indicative of remorse or repentance. Surrender to be considered voluntary
The surrender here is only done out of and thus mitigating, must be
convenience to save his own self. spontaneous, demonstrating an intent
Hence, it is not mitigating. to submit himself unconditionally to
the person in authority or his agent in
Even if the offender may have gone authority, because (1) he
into hiding, if the law enforcers had acknowledges his guilt (2) he wishes
already known where he is hiding and to save the government the trouble
it is just a matter of time before he is and expenses of searching and
flushed out of that place, then even if capturing him. Where the reason for
the law enforcers do not know exactly the surrender of the accused was to
where he was hiding and he would insure his safety, his arrest by
come out, this is not voluntary policemen pursuing him being
surrender. inevitable, the surrender is not
spontaneous.
Whether or not a warrant of arrest
had been issued against the offender
is immaterial and irrelevant. The Physical defect
criterion is whether or not the
offender had gone into hiding or had
The physical defect that a person may thief in leading the authorities to the
have must have a relation to the place where he disposed of the loot
commission of the crime. In a case has been considered as analogous or
where the offender is deaf and dumb, equivalent to voluntary surrender.
personal property was entrusted to
him and he misappropriated the Stealing by a person who is driven to
same. The crime committed was do so out of extreme poverty is
estafa. The fact that he was deaf and considered as analogous to
dumb is not mitigating because that incomplete state of necessity.
does not bear any relation to the However, this is not so where the
crime committed. offender became impoverished
because of his own way of living his
Not any physical defect will affect the life. If his lifestyle is one of having so
crime. It will only do so if it has some many vices, as a result of which he
relation to the crime committed. If a became poor, his subsequent stealing
person is deaf and dumb and he has because of his poverty will not be
been slandered, he cannot talk so considered mitigated by incomplete
what he did was, he got a piece of state of necessity.
wood and struck the fellow on the
head. The crime committed was
physical injuries. The Supreme Court Aggravating circumstances
held that being a deaf and dumb is
mitigating because the only way is to Kinds of aggravating circumstances:
use his force because he cannot strike
back. (1) Generic or those that can
generally apply to all crime;
If the offender is blind in one eye, as
long as his means of action, defense (2) Specific or those that apply only
or communication with others are not to a particular crime;
restricted, such circumstance is not
mitigating. This circumstance must (3) Qualifying or those that change
also have a bearing on the crime the nature of the crime;
committed and must depend on how
the crime was committed. (4) Inherent or those that must of
necessity accompany the
commission of the crime.
Analogous cases
The aggravating circumstances must
The act of the offender of leading the be established with moral certainty,
law enforcers to the place where he with the same degree of proof
buried the instrument of the crime required to establish the crime itself.
has been considered as equivalent to
voluntary surrender. The act of a
Most important of the classification of

aggravating circumstances are the (1) The circumstance affects the
qualifying and the generic nature of the crime itself such
aggravating circumstances. that the offender shall be liable
for a more serious crime. The
In practice, the so-called generic circumstance is actually an
aggravating circumstances are ingredient of the crime;
referred to simply as aggravating
circumstances. The so-called (2) Being an ingredient of the
qualifying aggravating circumstances crime, it cannot be offset by any
are simply referred to as qualifying mitigating circumstance;
circumstances. This is so because
there is no qualifying circumstance (3) Qualifying circumstances to be
that is not aggravating. To say appreciated as such must be
qualifying aggravating circumstance is specifically alleged in the
redundant. In the examination, if you complaint or information. If not
find qualifying circumstances, you alleged but proven during the
have to think about these as trial, it will be considered only
aggravating circumstances which are as generic aggravating
the ingredients of the crime. circumstance. If this happens,
they are susceptible of being
Distinctions between aggravating and offset by a mitigating
qualifying circumstances: circumstance.
In aggravating circumstances – An aggravating circumstance is

qualifying when it is an ingredient of
(1) The circumstance can be offset the crime. Therefore it is included in
by an ordinary mitigating the provision of law defining the
circumstance; crime. If it is not so included, it is not
qualifying.
(2) No need to allege this
circumstance in the information, In Article 248, in the crime of murder,
as long as it is proven during the law specifically mentions
trial. If it is proved during trial, thereunder several circumstances
the court would consider the which are aggravating under Article
same in imposing the penalty; 14. All of these will qualify a killing
from homicide to murder; however,
(3) It is not an ingredient of a you understand that only one is
crime. It only affects the qualifying.
penalty to be imposed but the
crime remains the same. If let us say, the accused was charged
with murder. Three of these
In qualifying circumstance – circumstances: treachery, evident
premeditation and act was done in treachery was not proved. Just the
consideration of a price, reward or same, the accused cannot be
promise were alleged as aggravating. convicted of murder because the
Only one of these is qualifying. If any circumstance proven is not qualifying
one of the three circumstances was but merely generic. It is generic
proven, the crime was already because it is not alleged in the
murder. If the other two are also information at all. If any of these
proven, even if they are alleged in the qualifying circumstances is not
information or complaint, they are alleged in the information, it cannot
only to be taken as generic. If there be considered qualifying because a
is any mitigating circumstance in qualifying is an ingredient of the
favor of the offender, the two other crime and it cannot be taken as such
circumstances which are otherwise without having alleged in the
qualifying could be offset by the information because it will violate the
mitigating, provided the mitigating right of the accused to be informed of
circumstance is not a privileged the nature of the accusation against
mitigating circumstance. Therefore, him.
if there are three of the qualifying
circumstances alleged in the Correlate Article 14 with Article 62.
complaint or information, only one Article 62 gives you the different rules
will qualify the crime. The others will regarding aggravating circumstances.
merely be considered as generic. Aggravating circumstances will not be
Thus, if there is any ordinary considered when it is the crime itself.
mitigating circumstance in favor of If the crime charged is qualified
the accused, such will be wiped out trespass to dwelling, dwelling is no
by these circumstances, although longer aggravating. When the
initially they are considered as aggravating circumstance refers to
qualifying. Do not hesitate to offset the material execution of the crime,
on the principle that a qualifying like treachery, it will only aggravate
circumstance cannot be offset by an the criminal liability of those who
ordinary mitigating circumstance employed the same.
because only one is necessary.
Illustration:
Even if any of the qualifying
circumstances under Article 248 on A person induced another to kill
murder was proven, if that is not the somebody. That fellow killed the other
circumstance alleged in the guy and employed treachery. As far
information, it cannot qualify the as the killing is concerned, the
crime. Let us say, what was alleged treachery will qualify only the criminal
in the information was treachery. liability of the actual executioner. The
During the trial, what was proven was fellow who induced him becomes a
the price, reward or promise as a co-principal and therefore, he is liable
consideration for killing. The for the same crime committed.
However, let us say, the fellow was Teachers, professors, supervisors of

hired to kill the parent of the one who public and duly recognized private
hired him. He killed a stranger and schools, colleges and universities, as
not the parent. What was committed well as lawyers are persons in
is different from what was agreed authority only for purposes of direct
upon. The fellow who hired him will assault and simple resistance, but not
not be liable for the crime he had for purposes of aggravating
done because that was not the crime circumstances in paragraph 2, Article
he was hired to commit. 14. (People v. Taoan, 182 SCRA
601).
Taking advantage of public position

Abuse of confidence
Article 62 was also amended by the
Republic Act No. 7659. The legal Do not confuse this with mere
import of this amendment is that the betrayal of trust. This is aggravating
subject circumstance has been made only when the very offended party is
a qualifying or special aggravating the one who reposed the confidence.
that shall not be offset or If the confidence is reposed by
compensated by a mitigating another, the offended party is
circumstance. If not alleged in the different from the fellow who reposed
information, however, but proven the confidence and abuse of
during the trial, it is only appreciated confidence in this case is not
as a generic aggravating aggravating.
circumstance.
Illustrations:
The mitigating circumstance referred
to in the amendment as not affecting A mother left her young daughter
the imposition of the penalty in the with the accused because she had
maximum are only ordinary mitigating nobody to leave the child with while
circumstances. Privileged mitigating she had to go on an errand. The
circumstances always lower the accused abused the child. It was held
penalty accordingly. that the abuse of confidence is not
aggravating. What is present is
betrayal of trust and that is not
Disrespect due to rank, age, sex aggravating.
Aggravating only in crimes against In a case where the offender is a

persons and honor, not against servant, the offended party is one of
property like Robbery with homicide the members of the family. The
(People v. Ga, 156 SCRA 790). servant poisoned the child. It was
held that abuse of confidence is
aggravating. This is only true
however, if the servant was still in the conjugal home and went to the house
service of the family when he did the of her sister bringing her personal
killing. If he was driven by the master belongings with her. The sister
already out of the house for some accommodated the wife in the
time and he came back and poisoned formers home. The husband went to
the child, abuse of confidence is no the house of the sister-in-law and
longer aggravating. The reason is tried to persuade the wife to come
because that confidence has already back to the conjugal home but the
been terminated when the offender wife refused because she is more at
was driven out of the house. peace in her sister's house than in the
conjugal abode. Due to the wife's
refusal to go back to the conjugal
home and live with the husband, the
husband pulled out a knife and
Dwelling stabbed the wife which caused her
death. It was held that dwelling was
Dwelling will only be aggravating if it aggravating although it is not owned
is the dwelling of the offended party. by the offended party because the
It should also not be the dwelling of offended party is considered as a
the offender. If the dwelling is both member of the family who owns the
that of the offended party and the dwelling and that dwelling is where
offender, dwelling is not aggravating. she enjoyed privacy. Peace of mind
and comfort.
Dwelling need not be owned by the
offended party. It is enough that he Even a room in a hotel if rented as a
used the place for his peace of mind, dwelling, like what the salesmen do
rest, comfort and privacy. The rule when they are assigned in the
that dwelling, in order to be provinces and they rent rooms, is
aggravating must be owned by the considered a dwelling. A room in a
offended party is no longer absolute. hotel or motel will be considered
Dwelling can be aggravating even if it dwelling if it is used with a certain
is not owned by the offended party, degree of permanence, where the
provided that the offended party is offended party seeks privacy, rest,
considered a member of the family peace of mind and comfort.
who owns the dwelling and equally
enjoys peace of mind, privacy and If a young man brought a woman in a
comfort. motel for a short time and there he
was killed, dwelling is not
Illustration: aggravating.
Husband and wife quarreled. A man was killed in the house of his
Husband inflicted physical violence common law wife. Dwelling is
upon the wife. The wife left the
aggravating in this case because the A and B are living in one house. A
house was provided by the man. occupies the ground floor while B the
upper floor. The stairs here would
Dwelling should not be understood in form part only of B's dwelling, the
the concept of a domicile. A person same being necessary and an integral
has more than one dwelling. So, if a part of his house or dwelling. Hence,
man has so many wives and he gave when an attack is made while A is on
them a places of their own, each one the stairs, the aggravating
is his own dwelling. If he is killed circumstance of dwelling is not
there, dwelling will be aggravating, present. If the attack is made while B
provided that he also stays there once was on the stairs, then the
in a while. When he is only a visitor aggravating circumstance of dwelling
there, dwelling is not aggravating. is present.
The crime of adultery was committed. Whenever one is in his dwelling, the
Dwelling was considered aggravating law is presuming that he is not
on the part of the paramour. The intending to commit a wrong so one
paramour is not a resident of the who attacks him while in the
same dwelling. However, if the tranquility of his home shows a
paramour was also residing on the degree of perversity in him. Hence,
same dwelling, dwelling is not this aggravating circumstance.
considered aggravating.
Dwelling is not limited to the house
The term “dwelling” includes all the proper. All the appurtenances
dependencies necessary for a house necessary for the peace and comfort,
or for rest or for comfort or a place of rest and peace of mind in the abode
privacy. If the place used is on the of the offended party is considered a
second floor, the stairs which are dwelling.
used to reach the second floor is
considered a dwelling because the Illustrations:
second floor cannot be enjoyed
without the stairs. If the offended A man was fixing something on the
party was assaulted while on the roof of his house when he was shot.
stairs, dwelling is already It was held that dwelling is
aggravating. For this reason, aggravating. Roof still part of the
considering that any dependency house.
necessary for the enjoyment of a
place of abode is considered a In the provinces where the comfort
dwelling. rooms are usually far from the house
proper, if the offended party while
Illustrations: answering the call of nature is killed,
then dwelling is aggravating because
the comfort room is a necessary store is closed, dwelling is

dependency of the house proper. aggravating since here, the store is
not a public place as in the first case.
A person while in the room of his
house, maintaining the room, was Balcony is part of the dwelling
shot. Dwelling is aggravating. because it is appurtenant to the
house
If the offender entered the house and
the offended party jumped out of the Dwelling is aggravating in robbery
house, even if the offender caught up with homicide because the crime can
with him already out of the house, be committed without necessarily
dwelling is still aggravating. The transgressing the sanctity of the
reason is because he could not have home (People v. De Los Reyes,
left his dwelling were it not for the decided October 22, 1992).
fact that the attacker entered the
house. Dwelling is aggravating where the
place is, even for a brief moment, a
If the offended party was inside the “home”, although he is not the owner
house and the offender was outside thereof as when victim was shot in
and the latter shot the former inside the house of his parents.
the house while he was still outside.
Dwelling is still aggravating even if
the offender did not enter the house. Band
A garage is part of the dwelling when In band, there should at least be four
connected with an interior passage to persons. All of them should be armed.
the house proper. If not connected, it Even if there are four, but only three
is not considered part of the dwelling. or less are armed, it is not a band.
Whenever you talk of band, always
One-half of the house is used as a have in mind four at least. Do not say
store and the other half is used for three or more because it is four or
dwelling but there is only one more. The way the law defines a band
entrance. If the dwelling portion is is somewhat confusing because it
attacked, dwelling is not aggravating refers simply to more than 3, when
because whenever a store is open for actually it should be 4 or more.
business, it is a public place and as
such is not capable of being the Correlate this with Article 306 -
subject of trespass. If the dwelling Brigandage. The crime is the band
portion is attacked where even if the itself. The mere forming of a band
store is open, there is another even without the commission of a
separate entrance to the portion used crime is already a crime so that band
for dwelling, the circumstance is is not aggravating in brigandage
aggravating. However, in case the
because the band itself is the way to Nighttime

commit brigandage.
What if the crime started during the
However, where brigandage is daytime and continued all the way to
actually committed, band becomes nighttime? This is not aggravating.
aggravating.
As a rule, the crime must begin and
end during the nighttime. Crime
Uninhabited place began at day and ended at night, as
well as crime began at night and
It is determined not by the distance of ended at day is not aggravated by the
the nearest house to the scene of the circumstance of nighttime.
crime but whether or not in the place
of the commission of the offense , Darkness is what makes this
there was a reasonable possibility of circumstance aggravating.
the victim receiving some help.
Illustration: Illustration:
A is on board a banca, not so far One evening, a crime was committed

away. B and C also are on board on near the lamp post. The Supreme
their respective bancas. Suddenly, D Court held that there is no
showed up from underwater and aggravating circumstance of
stabbed B. Is there an aggravating nighttime. Even if the crime was
circumstance of uninhabited place committed at night, but there was
here? Yes, considering the fact that A light, hence, darkness was not
and C before being able to give present, no aggravating circumstance
assistance still have to jump into the just by the fact of nighttime alone.
water and swim towards B and the
time it would take them to do that, Even if there was darkness but the
the chances of B receiving some help nighttime was only an incident of a
was very little, despite the fact that chance meeting, there is no
there were other persons not so far aggravating circumstance here. It
from the scene. must be shown that the offender
deliberately sought the cover of
Evidence tending to prove that the darkness and the offender purposely
offender took advantage of the place took advantage of nighttime to
and purposely availed of it is to make facilitate the commission of the
it easier to commit the crime, shall be offense.
necessary.
Nocturnity is the period of time after
sunset to sunrise, from dusk to dawn.
Distinctions between recidivism and

Different forms of repetition or habitual delinquency
habituality of the offender
In recidivism –
(1) Recidivism under Article 14 (9)
– The offender at the time of his (1) Two convictions are enough.
trial for one crime shall have
been previously convicted by (2) The crimes are not specified; it
final judgment of another is enough that they may be
embraced in the same title of embraced under the same title
the Revised Penal Code. of the Revised Penal Code.
(2) Repetition or reiteracion under (3) There is no time limit between

Article 14 (10) – The offender the first conviction and the
has been previously punished subsequent conviction.
for an offense which the law Recidivism is imprescriptible.
attaches an equal or greater
penalty or for two or more (4) It is a generic aggravating
crimes to which it attaches a circumstance which can be
lighter penalty. offset by an ordinary mitigating
circumstance. If not offset, it
(3) Habitual delinquency under would only increase the penalty
Article 62 (5) – The offender prescribed by law for the crime
within the period of 10 years committed to its maximum
from the date of his release or period.
last conviction of the crimes of
serious or less serious physical (5) The circumstance need not be
injuries, robo, hurto, estafa or alleged in the information.
falsification, is found guilty of
the any of said crimes a third In habitual delinquency –
time or oftener.
(1) At least three convictions are
(4) Quasi-recidivism under Article required.
160 – Any person who shall
commit a felony after having (2) The crimes are limited and
been convicted by final specified to: (a) serious physical
judgment before beginning to injuries, (b) less serious
serve such sentence or while physical injuries, (c) robbery,
serving such sentence shall be (d) theft, (e) estafa or swindling
punished by the maximum and (f) falsification.
period prescribed by law for the
new felony. (3) There is a time limit of not more
than 10 years between every
convictions computed from the circumstance is present. It is

first conviction or release from important that the conviction which
punishment thereof to came earlier must refer to the crime
conviction computed from the committed earlier than the
second conviction or release subsequent conviction.
therefrom to the third
conviction and so on . . . Illustration:
(4) Habitual delinquency is a special
aggravating circumstance, In 1980, A committed robbery. While
hence it cannot be offset by any the case was being tried, he
mitigating circumstance. Aside committed theft in 1983. He was
from the penalty prescribed by found guilty and was convicted of
law for the crime committed, an theft also in 1983. The conviction
additional penalty shall be became final because he did not
imposed depending upon appeal anymore and the trial for his
whether it is already the third earlier crime which was robbery
conviction, the fourth, the fifth ended in 1984 where he was also
and so on . . . convicted. He also did not appeal this
decision. Is the accused a recidivist?
(5) The circumstance must be The subsequent conviction must refer
alleged in the information; to a felony committed later in order to
otherwise the court cannot constitute recidivism. The reason for
acquire jurisdiction to impose this is as the time the first crime was
additional penalty. committed, there was no other crime
of which he was convicted so he
cannot be regarded as a repeater.
Recidivism
In recidivism, the crimes committed
In recidivism, the emphasis is on the should be felonies. Recidivism cannot
fact that the offender was previously be had if the crime committed is a
convicted by final judgement of a violation of a special law.
felony and subsequently found guilty
of another felony embraced in the Recidivism does not prescribe. No
same title of the Revised Penal Code. matter how long ago the offender was
The law considers this aggravating convicted, if he is subsequently
when a person has been committing convicted of a crime embraced in the
felonies embraced in the same title same title of the Revised Penal Code,
because the implication is that he is it is taken into account as aggravating
specializing on such kind of crime and in imposing the penalty.
the law wants to prevent any
specialization. Hence, ordinarily, when Pardon does not erase recidivism,
a person commits a crime under even if it is absolute because only
different titles, no aggravating
excuses the service of the penalty, committed theft. In 1980, he was

but not the conviction. convicted of theft and he did not
appeal this decision. The trial for
If the offender has already served his robbery ended in 1981. May the
sentence and he was extended an judge in imposing the penalty for
absolute pardon, the pardon shall robbery consider the accused a
erase the conviction including recidivist considering that he was
recidivism because there is no more already convicted in 1980 for the
penalty so it shall be understood as crime of theft which is under the same
referring to the conviction or the title of the Revised Penal Code as that
effects of the crime. of robbery?
Recidivism may be considered even No, because the robbery which

though not alleged in the information was committed earlier would be
because this is only a generic decided later. It must be the other
aggravating circumstance. way around. This is because in 1975
when he committed the robbery,
It is necessary to allege recidivism in there was no crime committed yet.
the information, but if the defense Thus, even though in imposing the
does not object to the presentation of penalty for the robbery, there was
evidence during the trial and the already a previous conviction, if that
same was proven, the court shall conviction is subsequent to the
consider such aggravating commission of the robbery, he is not
circumstance because it is only a recidivist. If you will interpret the
generic. definition of recidivism, this would
seem to be covered but that is not so.
In recidivism, although the law
defines it as a circumstance where a
person having been convicted by final Habitual delinquency
judgement was previously convicted
also by final judgement for a crime We have to consider the crimes in it
embraced in the same title in the and take note of the titles of crimes in
Revised Penal Code, it is necessary the Revised Penal Code.
that the conviction must come in the
order in which they are committed. If the offender had committed and
was convicted of each of the crimes
under each category so that no two
Question & Answer crimes fall under the same title of the
Revised Penal Code, you have a
situation where the offender is a
In 1975, the offender habitual delinquent but not a
committed robbery. While the same recidivist because no two crimes fall
was being tried in 1978, he under the same title of the Code.
to prove habitual delinquency over

If the first conviction is for serious the objection of the accused.
physical injuries or less serious
physical injuries and the second On the other hand, recidivism is a
conviction is for robbery, theft or generic aggravating circumstance. It
estafa and the third is for falsification, need not be alleged in the
then the moment the habitual information. Thus, even if recidivism
delinquent is on his fourth conviction is not alleged in the information, if
already, you cannot avoid that he is a proven during trial, the court can
habitual delinquent and at the same appreciate the same. If the
time a recidivist because at least, the prosecution tried to prove recidivism
fourth time will have to fall under any and the defense objected, the
of the three categories. objection should be overruled. The
reason is recidivism is a generic
When the offender is a recidivist and aggravating circumstance only. As
at the same time a habitual such, it does not have to be alleged in
delinquent, the penalty for the crime the information because even if not
for which he will be convicted will be alleged, if proven during trial, the trial
increased to the maximum period court can appreciate it.
unless offset by a mitigating
circumstance. After determining the Right now, the present rule is that it
correct penalty for the last crime can be appreciated even if not alleged
committed, an added penalty will be in the information. This is the correct
imposed in accordance with Article view because recidivism is a generic
62. aggravating circumstance. The reason
why habitual delinquency cannot be
Habitual delinquency, being a special appreciated unless alleged in the
or specific aggravating circumstance information is because recidivism has
must be alleged in the information. If nothing to do with the crime
it is not alleged in the information and committed. Habitual delinquency
in the course of the trial, the refers to prior conviction and
prosecution tried to prove that the therefore this must be brought in the
offender is a habitual delinquent over information before the court can
the objection of the accused, the acquire jurisdiction over this matter.
court has no jurisdiction to consider
the offender a habitual delinquent. Generally, the procedure you know
Even if the accused is in fact a that when the prosecutor alleges
habitual delinquent but it is not habitual delinquency, it must specify
alleged in the information, the the crimes committed, the dates
prosecution when introducing when they were committed, the court
evidence was objected to, the court which tried the case, the date when
cannot admit the evidence presented the accused was convicted or
discharged. If these are not alleged, served out the penalty, the law
the information is defective. expects that since he has already
tasted punishment, he will more or
However, in a relatively recent ruling less refrain from committing crimes
of the Supreme Court, it was held again. That is why if the offender
that even though the details of committed a subsequent felony which
habitual delinquency was not set forth carries with it a penalty lighter than
in the information, as long as there is what he had served, reiteracion is not
an allegation there that the accused is aggravating because the law
a habitual delinquent, that is enough considers that somehow, this fellow
to confer jurisdiction upon the court was corrected because instead of
to consider habitual delinquency. In committing a serious crime, he
the absence of the details set forth in committed a lesser one. If he
the information, the accused has the committed another lesser one, then
right to avail of the so-called bill of he becomes a repeater.
particulars. Even in a criminal case,
the accused may file a motion for bill So, in reiteracion, the penalty
of particulars. If the accused fails to attached to the crime subsequently
file such, he is deemed to have committed should be higher or at
waived the required particulars and so least equal to the penalty that he has
the court can admit evidence of the already served. If that is the
habitual delinquency, even though situation, that means that the
over and above the objection of the offender was never reformed by the
defense. fact that he already served the
penalty imposed on him on the first
conviction. However, if he commits a
Reiteracion felony carrying a lighter penalty;
subsequently, the law considers that
This has nothing to do with the somehow he has been reformed but if
classification of the felonies. In he, again commits another felony
reiteracion, the offender has already which carries a lighter penalty, then
tasted the bitterness of the he becomes a repeater because that
punishment. This is the philosophy on means he has not yet reformed.
which the circumstance becomes
aggravating. You will only consider the penalty in
reiteracion if there is already a second
It is necessary in order that there be conviction. When there is a third
reiteracion that the offender has conviction, you disregard whatever
already served out the penalty. If the penalty for the subsequent crimes
offender had not yet served out his committed. Even if the penalty for the
penalty, forget about reiteracion. That subsequent crimes committed are
means he has not yet tasted the lighter than the ones already served,
bitterness of life but if he had already since there are already two of them
subsequently, the offender is already serving sentence which should be a

a repeater. felony, a violation of the Revised
Penal Code. In so far as the earlier
However, if there is only a second crime is concerned, it is necessary
conviction, pay attention to the that it be a felony.
penalty attached to the crime which
was committed for the second crime. Illustration:
That is why it is said that reiteracion
is not always aggravating. This is so The offender was convicted of
because if the penalty attached to the homicide. While serving sentence in
felony subsequently committed is not Muntinlupa, he was found smoking
equal or higher than the penalty marijuana. He was prosecuted for
already served, even if literally, the illegal use of prohibited drugs and
offender is a repeater, repetition is was convicted. Is he a quasi-
not aggravating. recidivist? No, because the crime
committed while serving sentence is
not a felony.
Quasi-recidivism
Reverse the situation. Assume that
This is found in Article 160. The the offender was found guilty of illegal
offender must already be convicted by use of prohibited drugs. While he was
final judgement and therefore to have serving sentence, he got involved in a
served the penalty already, but even quarrel and killed a fellow inmate. Is
at this stage, he committed a felony he a quasi-recidivist? Yes, because
before beginning to serve sentence or while serving sentence, he committed
while serving sentence. a felony.
Illustration: The emphasis is on the nature of the

crime committed while serving
Offender had already been convicted sentence or before serving sentence.
by final judgement. Sentence was It should not be a violation of a
promulgated and he was under special law.
custody in Muntinlupa. While he was
in Muntinlupa, he escaped from his Quasi-recidivism is a special
guard and in the course of his escape, aggravating circumstance. This
he killed someone. The killing was cannot be offset by any mitigating
committed before serving sentence circumstance and the imposition of
but convicted by final judgement. He the penalty in the maximum period
becomes a quasi-recidivist because cannot be lowered by any ordinary
the crime committed was a felony. mitigating circumstance. When there
is a privileged mitigating
The emphasis here is on the crime circumstance, the penalty prescribed
committed before sentence or while by law for the crime committed shall
be lowered by 1 or 2 degrees, as the

case may be, but then it shall be Whenever a killing is done with the
imposed in the maximum period if the use of fire, as when to kill someone,
offender is a quasi-recidivist. you burn down his house while the
latter is inside, this is murder.
There is no such crime as murder with

In consideration of a price, reward or arson or arson with homicide. The
promise crime committed is only murder.
The Supreme Court rulings before If the victim is already dead and the
indicate that this circumstance house is burned, the crime is arson. It
aggravates only the criminal liability is either arson or murder.
of the person who committed the
crime in consideration of the price, If the intent is to destroy property,
promise, or reward but not the the crime is arson even if someone
criminal liability of the person who dies as a consequence. If the intent
gave the price, reward or is to kill, there is murder even if the
consideration. However, when there is house is burned in the process.
a promise, reward or price offered or
given as a consideration for the Illustration:
commission of the crime, the person
making the offer is an inducer, a A and B were arguing about
principal by inducement while the something. One argument led to
person receiving the price, reward or another until A struck B to death with
promise who would execute the crime a bolo. A did not know that C, the
is a principal by direct participation. son of B was also in their house and
Hence, their responsibilities are the who was peeping through the door
same. They are both principals and and saw what A did. Afraid that A
that is why the recent rulings of the might kill him, too, he hid somewhere
Supreme Court are to the effect that in the house. A then dragged B's
this aggravating circumstance affects body and poured gasoline on it and
or aggravates not only the criminal burned the house altogether. As a
liability of the receiver of the price, consequence, C was burned and
reward or promise but also the eventually died too.
criminal liability of the one giving the
offer. As far as the killing of B is concerned,
it is homicide since it is noted that
they were arguing. It could not be
By means of inundation or fire murder. As far as the killing of C is
concerned, the crime is arson since he
Fire is not aggravating in the crime of intended to burn the house only.
arson.
No such crime as arson with a clear reflection on the part of the

homicide. Law enforcers only use this offender. However, if the killing was
to indicate that a killing occurred accidental, there was no evident
while arson was being committed. At premeditation. What is necessary to
the most, you could designate it as show and to bring about evident
“death as a consequence of arson.” premeditation aside from showing
that as some prior time, the offender
has manifested the intention to kill
Evident premeditation the victim, and subsequently killed
the victim.
For evident premeditation to be
aggravating, the following conditions Illustrations:
must concur:
A and B fought. A told B that
(1) The time when the accused someday he will kill B. On Friday, A
determined to commit the killed B. A and B fought on Monday
crime; but since A already suffered so many
blows, he told B, "This week shall not
(2) An act manifestly indicating that pass, I will kill you." On Friday, A
the accused has clung to his killed B. Is there evident
determination; premeditation in both cases? None in
both cases. What condition is missing
(3) Sufficient lapse of time between to bring about evident premeditation?
such determination and Evidence to show that between
execution, to allow him to Monday and Friday, the offender
reflect upon the consequences clung to his determination to kill the
of his act. victim, acts indicative of his having
clung to his determination to kill B.
Illustration: A and B had a quarrel. A boxed B. A

told B, "I will kill you this week." A
A, on Monday, thought of killing B on bought firearms. On Friday, he waited
Friday. A knew that B is coming home for B but killed C instead. Is there
only on Friday so A decided to kill B evident premeditation? There is
on Friday evening when he comes aberratio ictus. So, qualify. Insofar as
home. On Thursday, A met B and B is concerned, the crime is
killed him. Is there evident attempted murder because there is
premeditation? None but there is evident premeditation. However, that
treachery as the attack was sudden. murder cannot be considered for C.
Insofar as C is concerned, the crime is
Can there be evident premeditation homicide because there was no
when the killing is accidental? No. In evident premeditation.
evident premeditation, there must be
Evident premeditation shall not be premeditation. Premeditation must be

considered when the crime refers to a clear. It is required that there be
different person other than the person evidence showing meditation between
premeditated against. the time when the offender
determined to commit the crime and
While it is true that evident the time when the offender executed
premeditation may be absorbed in the act. It must appear that the
treachery because the means, offender clung to his determination to
method and form of attack may be commit the crime. The fact that the
premeditated and would be resorted offender premeditated is not prima
to by the offender. Do not consider facie indicative of evident
both aggravating circumstances of premeditation as the meeting or
treachery and evident premeditation encounter between the offender and
against the offender. It is only the offended party was only by
treachery because the evident chance or accident.
premeditation is the very conscious
act of the offender to ensure the In order for evident premeditation to
execution. be considered, the very
person/offended party premeditated
But there may be evident against must be the one who is the
premeditation and there is treachery victim of the crime. It is not
also when the attack was so sudden. necessary that the victim is identified.
It is enough that the victim is
A and B are enemies. They fought on determined so he or she belongs to a
Monday and parted ways. A decided group or class who may be
to seek revenge. He bought a firearm premeditated against. This is a
and practiced shooting and then circumstance that will qualify a killing
sought B. When A saw B in the from homicide to murder.
restaurant with so many people, A did
not dare fire at B for fear that he Illustration:
might hit a stranger but instead, A
saw a knife and used it to stab B with A person who has been courting a
all suddenness. Evident lady for several years now has been
premeditation was not absorbed in jilted. Because of this, he thought of
treachery because treachery refers to killing somebody. He, then bought a
the manner of committing the crime. knife, sharpened it and stabbed the
Evident premeditation is always first man he met on the street. It
absorbed in treachery. was held that evident premeditation is
not present. It is essential for this
This is one aggravating circumstance aggravating circumstance for the
where the offender who victim to be identified from the
premeditated, the law says evident. It beginning.
is not enough that there is some
A premeditated to kill any member of two persons who attacked the victim
particular fraternity. He then killed does not per se constitute abuse of
one. This is murder – a homicide superior strength (People v. Carpio,
which has been qualified into murder 191 SCRA 12).
by evident premeditation which is a
qualifying circumstance. Same where
A planned to kill any member of the Treachery
Iglesio ni Kristo.
Treachery refers to the employment
There are some crimes which cannot of means, method and form in the
be aggravated by evident commission of the crime which tend
premeditation because they require directly and specially to insure its
some planning before they can be execution without risk to himself
committed. Evident premeditation is arising from the defense which the
part of the crime like kidnapping for offended party might make. The
ransom, robbery with force upon means, method or form employed my
things where there is entry into the be an aggravating circumstance which
premises of the offended party, and like availing of total darkness in
estafa through false pretenses where nighttime or availing of superior
the offender employs insidious means strength taken advantage of by the
which cannot happen accidentally. offender, employing means to weaken
the defense.
Craft Illustration:
Aggravating in a case where the A and B have been quarreling for

offenders pretended to be bona fide some time. One day, A approached B
passengers of a jeepney in order not and befriended him. B accepted. A
to arouse suspicion, but once inside proposed that to celebrate their
the jeepney, robbed the passengers renewed friendship, they were going
and the driver (People v. Lee, to drink. B was having too much to
decided on December 20, 1991). drink. A was just waiting for him to
get intoxicated and after which, he
stabbed B.
Abuse of superior strength
A pretended to befriend B, just to
There must be evidence of notorious intoxicate the latter. Intoxication is
inequality of forces between the the means deliberately employed by
offender and the offended party in the offender to weaken the defense of
their age, size and strength, and that the offended party. If this was the
the offender took advantage of such very means employed, the
superior strength in committing the circumstance may be treachery and
crime. The mere fact that there were
not abuse of superior strength or offended party was able to put up a

means to weaken the defense. defense and that negates treachery.
In treachery, the offended party, due
What is the essence of treachery? to the means, method or form
employed by the offender, the
The essence of treachery is that by offended party was denied the chance
virtue of the means, method or form to defend himself. If because of the
employed by the offender, the cover of darkness, B was not able to
offended party was not able to put up put up a defense and A was able to
any defense. If the offended party flee while B died, the crime is murder
was able to put up a defense, even because there is already treachery. In
only a token one, there is no the first situation, the crime was
treachery anymore. Instead some homicide only, the nighttime is
other aggravating circumstance may generic aggravating circumstance.
be present but not treachery
anymore. In the example where A pretended to
befriend B and invited him to
Illustration: celebrate their friendship, if B despite
intoxication was able to put up some
A and B quarreled. However A had no fight against A but eventually, B died,
chance to fight with B because A is then the attendant circumstance is no
much smaller than B. A thought of longer treachery but means employed
killing B but then he cannot just to weaken the defense. But in
attack B because of the latter's size. murder, this is also a qualifying
So, A thought of committing a crime circumstance. The crime committed
at nighttime with the cover of is murder but then the correct
darkness. A positioned himself in the circumstance is not treachery but
darkest part of the street where B means employed to weaken the
passes on his way home. One defense.
evening, A waited for B and stabbed
B. However, B pulled a knife as well In the same manner, if the offender
and stabbed A also. A was wounded avails of the services of men and in
but not mortal so he managed to run the commission of the crime, they
away. B was able to walk a few steps took advantage of superior strength
before he fell and died. What crime but somehow, the offended party
was committed? fought back, the crime is still murder
if the victim is killed. Although the
The crime is only homicide because qualifying circumstance is abuse of
the aggravating circumstance is only superior strength and not treachery,
nocturnity and nocturnity is not a which is also a qualifying
qualifying circumstance. The reason circumstance of murder under Article
why treachery cannot be considered 248.
as present here is because the
Treachery is out when the attack was Robbery was not proven beyond
merely incidental or accidental reasonable doubt. Accused held liable
because in the definition of treachery, only for the killings. Although one of
the implication is that the offender the victims was barely six years old,
had consciously and deliberately the accused was convicted only for
adopted the method, means and form homicide, aggravated by dwelling and
used or employed by him. So, if A and in disregard of age.
B casually met and there and then A
stabbed B, although stabbing may be Treachery not appreciated where
sudden since A was not shown to quarrel and heated discussion
have the intention of killing B, preceded a killing, because the victim
treachery cannot be considered would be put on guard (People v.
present. Gupo). But although a quarrel
preceded the killing where the victim
There must be evidenced on how the was atop a coconut tree, treachery
crime was committed. It is not was considered as the victim was not
enough to show that the victim in a position to defend himself
sustained treacherous wound. (People v. Toribio).
Example: A had a gunshot wound at
the back of his head. The SC ruled
this is only homicide because Distinction between ignominy and
treachery must be proven. It must be cruelty
shown that the victim was totally
defenseless. Ignominy shocks the moral
conscience of man while cruelty is
Suddenness of the attack does not by physical. Ignominy refers to the moral
itself constitute treachery in the effect of a crime and it pertains to the
absence of evidence that the manner moral order, whether or not the
of the attack was consciously adopted victim is dead or alive. Cruelty
by the offender to render the pertains to physical suffering of the
offended party defenseless (People victim so the victim has to be alive. In
v. Ilagan, 191 SCRA 643). plain language, ignominy is adding
insult to injury. A clear example is a
But where children of tender years married woman being raped before
were killed, being one year old and 12 the eyes of her husband.
years old, the killing is murder even if
the manner of attack was not shown In a case where the crime committed
(People v. Gahon, decided on April is rape and the accused abused the
30, 1991). victims from behind, the Supreme
Court considered the crime as
In People v. Lapan, decided on aggravated by ignominy. Hence,
July 6, 1992, the accused was raping a woman from behind is
prosecuted for robbery with homicide. ignominous because this is not the
usual intercourse, it is something murder if 60 wounds were inflicted

which offends the moral of the gradually; absence of this evidence
offended woman. This is how animals means the crime committed is only
do it. homicide.
In a case of homicide, while the Cruelty is aggravating in rape where

victim after having been killed by the the offender tied the victim to a bed
offender, the offender shoved the and burnt her face with a lighted
body inside a canal, ignominy is held cigarette while raping her laughing all
aggravating. the way (People v. Lucas, 181
SCRA 315).
After having been killed, the body was
thrown into pile of garbage, ignominy
is aggravating. The Supreme Court Unlawful entry
held that it added shame to the
natural effects of the crime. Unlawful entry is inherent in the crime
of robbery with force upon things but
Cruelty and ignominy are aggravating in the crime of robbery
circumstances brought about which with violence against or intimidation
are not necessary in the commission of persons.
of the crime.
Illustration: Motor vehicle
A and B are enemies. A upon seeing B The Supreme Court considers strictly
pulled out a knife and stabbed B 60 the use of the word “committed”, that
times. Will that fact be considered as the crime is committed with the use
an aggravating circumstance of of a motor vehicle, motorized means
cruelty? No, there is cruelty only of transportation or motorized
when there are evidence that the watercraft. There is a decision by the
offender inflicted the stab wounds Court of Appeals that a motorized
while enjoying or delighted to see the bicycle is a motor vehicle even if the
victim in pain. For cruelty to exist as offender used only the foot pedal
an aggravating circumstance, there because he does not know how to
must be evidence showing that the operate the motor so if a bicycle is
accused inflicted the alleged cruel used in the commission of the crime,
wounds slowly and gradually and that motor vehicle becomes aggravating if
he is delighted seeing the victim the bicycle is motorized.
suffer in pain. In the absence of
evidence to this effect, there is no This circumstance is aggravating only
cruelty. Sixty stab wounds do not ipso when used in the commission of the
facto make them aggravating offense. If motor vehicle is used only
circumstances of cruelty. The crime is in the escape of the offender, motor
vehicle is not aggravating. To be when only two persons collaborated,

aggravating, it must have been used confederated, or mutually helped one
to facilitate the commission of the another in the commission of a crime,
crime. which acts are inherent in a
conspiracy. Where therefore,
Aggravating when a motorized tricycle conspiracy in the commission of the
was used to commit the crime crime is alleged in the information,
the allegation may be considered as
procedurally sufficient to warrant
Organized or syndicated crime group receiving evidence on the matter
during trial and consequently, the
In the same amendment to Article 62 said special aggravating circumstance
of the Revised Penal Code, can be appreciated if proven.
paragraphs were added which provide
that the maximum penalty shall be
imposed if the offense was committed Alternative circumstances
by any person who belongs to an
organized or syndicated crime group. Four alternative circumstances
An organized or syndicated crime (1) Relationship;

group means a group of two or more
persons collaborating, confederating (2) Intoxication;
or mutually helping one another for
purposes of gain in the commission of (3) Degree of instruction; and
a crime.
(4) Education.
With this provision, the circumstance
of an organized or syndicated crime Use only the term alternative
group having committed the crime circumstance for as long as the
has been added in the Code as a particular circumstance is not
special aggravating circumstance. involved in any case or problem. The
The circumstance being special or moment it is given in a problem, do
qualifying, it must be alleged in the not use alternative circumstance,
information and proved during the refer to it as aggravating or mitigating
trial. Otherwise, if not alleged in the depending on whether the same is
information, even though proven considered as such or the other. If
during the trial, the court cannot relationship is aggravating, refer to it
validly consider the circumstances as aggravating. If mitigating, then
because it is not among those refer to it as such.
enumerated under Article 14 of the
Code as aggravating. It is Except for the circumstance of
noteworthy, however, that there is an intoxication, the other circumstances
organized or syndicated group even in Article 15 may not be taken into
account at all when the circumstance (2) Also in Article 247, a spouse
has no bearing on the crime does not incur criminal liability
committed. So the court will not for a crime of less serious
consider this as aggravating or physical injuries or serious
mitigating simply because the physical injuries if this was
circumstance has no relevance to the inflicted after having surprised
crime that was committed. the offended spouse or
paramour or mistress
Do not think that because the article committing actual sexual
says that these circumstances are intercourse.
mitigating or aggravating, that if the
circumstance is present, the court will (3) Those commonly given in Article
have to take it as mitigating, if not 332 when the crime of theft,
mitigating, aggravating. That is malicious mischief and
wrong. It is only the circumstance of swindling or estafa. There is no
intoxication which if not mitigating, is criminal liability but only civil
automatically aggravating. But the liability if the offender is related
other circumstances, even if they are to the offended party as spouse,
present, but if they do not influence ascendant, or descendant or if
the crime, the court will not consider the offender is a brother or
it at all. Relationship may not be sister or brother in law or sister
considered at all, especially if it is not in law of the offended party and
inherent in the commission of the they are living together.
crime. Degree of instruction also will Exempting circumstance is the
not be considered if the crime is relationship. This is an
something which does not require an absolutory cause.
educated person to understand.
Sometimes, relationship is a
qualifying and not only a generic
Relationship aggravating circumstance. In the
crime of qualified seduction, the
Relationship is not simply mitigating offended woman must be a virgin and
or aggravating. There are specific less than 18 yrs old. But if the
circumstances where relationship is offender is a brother of the offended
exempting. Among such woman or an ascendant of the
circumstances are: offended woman, regardless of
whether the woman is of bad
(1) In the case of an accessory who reputation, even if the woman is 60
is related to the principal within years old or more, crime is qualified
the relationship prescribed in seduction. In such a case,
Article 20; relationship is qualifying.
Intoxication was payday, they decided to have

some good time and ordered beer.
This circumstance is ipso facto When they drank two cases of beer
mitigating, so that if the prosecution they became more talkative until they
wants to deny the offender the engaged in an argument. One pulled
benefit of this mitigation, they should out a knife and stabbed the other.
prove that it is habitual and that it is When arraigned he invoked
intentional. The moment it is shown intoxication as a mitigating
to be habitual or intentional to the circumstance. Intoxication does not
commission of the crime, the same simply mean that the offender has
will immediately aggravate, partaken of so much alcoholic
regardless of the crime committed. beverages. The intoxication in law
requires that because of the quality of
Intoxication to be considered the alcoholic drink taken, the offender
mitigating, requires that the offender had practically lost self control. So
has reached that degree of although the offender may have
intoxication where he has no control partaken of two cases of beer, but
of himself anymore. The idea is the after stabbing the victim he hailed a
offender, because of the intoxication tricycle and even instructed the driver
is already acting under diminished self to the place where he is sleeping and
control. This is the rational why the tricycle could not reach his house
intoxication is mitigating. So if this and so he has to alight and walk to
reason is not present, intoxication his house, then there is no diminished
will not be considered mitigating. So self control. The Supreme Court did
the mere fact that the offender has not give the mitigating circumstance
taken one or more cases of beer of because of the number of wounds
itself does not warrant a conclusion inflicted upon the victim. There were
that intoxication is mitigating. There 11 stab wounds and this, the
must be indication that because of the Supreme Court said, is incompatible
alcoholic intake of the offender, he is with the idea that the offender is
suffering from diminished self control. already suffering from diminished self
There is diminished voluntariness control. On the contrary, the
insofar as his intelligence or freedom indication is that the offender gained
of action is concerned. It is not the strength out of the drinks he had
quantity of alcoholic drink. Rather it taken. It is not the quantity of drink
is the effect of the alcohol upon the that will determine whether the
offender which shall be the basis of offender can legally invoke
the mitigating circumstance. intoxication. The conduct of the
offender, the manner of committing
Illustration: the crime, his behavior after
committing the crime must show the
In a case, there were two laborers behavior of a man who has already
who were the best of friends. Since it lost control of himself. Otherwise
intoxication cannot legally be

considered. In the same manner, the offender
may be a lawyer who committed
rape. The fact that he has knowledge
Degree of instruction and education of the law will not aggravate his
liability, because his knowledge has
These are two distinct circumstances. nothing to do with the commission of
One may not have any degree of the crime. But if he committed
instruction but is nevertheless falsification, that will aggravate his
educated. Example: A has been living criminal liability, where he used his
with professionals for sometime. He special knowledge as a lawyer.
may just be a maid in the house with
no degree of instruction but he may
still be educated. PERSONS WHO ARE CRIMINALLY
LIABLE
It may happen also that the offender
grew up in a family of professionals, Under the Revised Penal Code, when
only he is the black sheep because he more than one person participated in
did not want to go to school. But it the commission of the crime, the law
does not follow that he is bereft of looks into their participation because
education. in punishing offenders, the Revised
Penal Code classifies them as:
If the offender did not go higher than
Grade 3 and he was involved in a (1) principal;
felony, he was invoking lack of degree
of education. The Supreme Court (2) accomplice; or
held that although he did not receive
schooling, yet it cannot be said that (3) accessory.
he lacks education because he came
from a family where brothers are all This classification is true only under
professionals. So he understands the Revised Penal Code and is not
what is right and wrong. used under special laws, because the
penalties under the latter are never
The fact that the offender did not graduated. Do not use the term
have schooling and is illiterate does principal when the crime committed is
not mitigate his liability if the crime a violation of special law. Only use
committed is one which he inherently the term “offender.” Also only classify
understands as wrong such as offenders when more than one took
parricide. If a child or son or part in the commission of the crime to
daughter would kill a parent, illiteracy determine the proper penalty to be
will not mitigate because the low imposed. So, if only one person
degree of instruction has no bearing committed a crime, do not use
on the crime.
principal. Use the “offenders,” property. If they are not and the
“culprits,” or the “accused.” same is not consummated, even the
principal and the accomplice are not
When a problem is encountered liable.
where there are several participants
in the crime, the first thing to find out Therefore it is only when the light
is if there is a conspiracy. If there is, felony is against person or property
as a general rule, the criminal liability that criminal liability attaches to the
of all will be the same, because the principal or accomplice, even though
act of one is the act of all. the felony is only attempted or
frustrated, but accessories are not
However, if the participation of one is liable for liable for light felonies.
so insignificant, such that even
without his cooperation, the crime
would be committed just as well, then Principal by indispensable cooperation
notwithstanding the existence of a distinguished from an accomplice
conspiracy, such offender will be
regarded only as an accomplice. The It is not just a matter of cooperation,
reason for this ruling is that the law it is more than if the crime could
favors a milder form of criminal hardly be committed. It is not that
liability if the act of the participant the crime would not be committed
does not demonstrate a clear because if that is what you would
perversity. imply it becomes an ingredient of the
crime and that is not what the law
As to the liability of the participants in contemplates.
a felony, the Code takes into
consideration whether the felony In the case of rape, where three men
committed is grave, less grave, or were accused, one was on top of the
light. woman, one held the hands, one held
the legs, the Supreme Court ruled
When the felony is grave, or less that all participants are principals.
grave, all participants are criminally Those who held the legs and arms are
liable. principals by indispensable
cooperation.
But where the felony is only light only
the principal and the accomplice are The accused are father and son. The
liable. The accessory is not. father told his son that the only way
to convince the victim to marry him is
But even the principal and the to resort to rape. So when they saw
accomplice will not be liable if the the opportunity the young man
felony committed is only light and the grabbed the woman, threw her on the
same is not consummated unless ground and placed himself on top of
such felony is against persons or her while the father held both legs of
the woman and spread them. The was held that the fellow who blocked
Supreme Court ruled that the father is the victim is a principal by
liable only as an accomplice. indispensable cooperation because if
he did not block the way of the
The point is not just on participation victim, the offender could not have
but on the importance of participation caught up with the latter.
in committing the crime.
In another case, A was mauling B. C,
In the first situation, the facts indicate a friend of B tried to approach but D
that if the fellow who held the legs of stopped C so that A was able to
the victim and spread them did not do continuously maul B. The liability of
so, the offender on top could hardly the fellow who stopped the friend
penetrate because the woman was from approaching is as an accomplice.
strong enough to move or resist. In Understandably he did not cooperate
the second situation, the son was in the mauling, he only stopped to
much bigger than the woman so other fellow from stopping the
considering the strength of the son mauling.
and the victim, penetration is possible
even without the assistance of the In case of doubt, favor the lesser
father. The son was a robust farm penalty or liability. Apply the doctrine
boy and the victim undernourished. of pro reo.
The act of the father in holding the
legs of the victim merely facilitated
the penetration but even without it Principal by inducement
the son would have penetrated.
Concept of the inducement – one
The basis is the importance of the strong enough that the person
cooperation to the consummation of induced could hardly resist. This is
the crime. If the crime could hardly tantamount to an irresistible force
be committed without such compelling the person induced to
cooperation, then such cooperation carry out the execution of the crime.
would bring about a principal. But if Ill advised language is not enough
the cooperation merely facilitated or unless he who made such remark or
hastened the consummation of the advice is a co-conspirator in the crime
crime, this would make the committed.
cooperator merely an accomplice. While in the course of a quarrel, a
person shouted to A, “Kill him! Kill
In a case where the offender was him.” A killed the other fellow. Is the
running after the victim with a knife. person who shouted criminally liable.
Another fellow came and blocked the Is that inducement? No. It must be
way of the victim and because of this, strong as irresistible force.
the one chasing the victim caught up
and stabbed the latter at the back. It
There was a quarrel between two be held liable as principal by

families. One of the sons of family A inducement. Utterance was said in
came out with a shotgun. His mother the excitement of the hour, not a
then shouted, “Shoot!”. He shot and command to be obeyed.
killed someone. Is the mother liable?
No. In People v. Madali, 188 SCRA 69,
the son was mauled. The family was
Examples of inducement: not in good graces of the
neighborhood. Father challenged
“I will give you a large amount of everybody and when neighbors
money.” approached, he went home to get a
rifle. The shouts of his wife “Here
“I will not marry you if you do not kill comes another, shoot him” cannot
B”(let us say he really loves the make the wife the principal by
inducer). inducement. It is not the determining
cause of the crime in the absence of
They practically become co- proof that the words had great
conspirators. Therefore you do not dominance and influence over the
look into the degree of inducement husband. Neither is the wife’s act of
anymore. beaming the victim with a flashlight
indispensable to the commission of
In People v. Balderrama, Ernesto the killing. She assisted her husband
shouted to his younger brother Oscar, in taking good aim, but such
“Birahin mo na, birahin mo na.” Oscar assistance merely facilitated the
stabbed the victim. It was held that felonious act of shooting. Considering
there was no conspiracy. Joint or that it was not so dark and the
simultaneous action per se is not husband could have accomplished the
indicia of conspiracy without showing deed without his wife’s help, and
of common design. Oscar has no considering further that doubts must
rancor with the victim for him to kill be resolved in favor of the accused,
the latter. Considering that Ernesto the liability of the wife is only that of
had great moral ascendancy and an accomplice.
influence over Oscar being much
older, 35 years old, than the latter,
who was 18 yrs old, and it was Accessories
Ernesto who provided his allowance,
clothing as well as food and shelter, Two situations where accessories are
Ernesto is principal by inducement. not criminally liable:
In People v. Agapinay, 186 SCRA (1) When the felony committed is a

812, the one who uttered “Kill him, light felony;
we will bury him,” while the felonious
aggression was taking place cannot
(2) When the accessory is related crime committed by the principal was
to the principal as spouse, or as robbery or theft, such participation of
an ascendant, or descendant or an accessory brings about criminal
as brother or sister whether liability under Presidential Decree No.
legitimate, natural or adopted 1612 (Anti-Fencing Law). One who
or where the accessory is a knowingly profits or assists the
relative by affinity within the principal to profit by the effects of
same degree, unless the robbery or theft is not just an
accessory himself profited from accessory to the crime, but principally
the effects or proceeds of the liable for fencing under Presidential
crime or assisted the offender Decree No. 1612.
to profit therefrom.
Any person who, with intent to gain,
One cannot be an accessory unless he acquires and/or sell, possesses, keeps
knew of the commission of the crime. or in any manner deals with any
One must not have participated in the article of value which he knows or
commission of the crime. The should be known to him to be the
accessory comes into the picture proceeds of robbery or theft is
when the crime is already considered a “fence” and incurs
consummated. Anyone who criminal liability for “fencing” under
participated before the consummation said decree. The penalty is higher
of the crime is either a principal or an than that of a mere accessory to the
accomplice. He cannot be an crime of robbery or theft.
accessory.
Likewise, the participation of one who
When an offender has already conceals the effects of robbery or
involved himself as a principal or theft gives rise to criminal liability for
accomplice, he cannot be an “fencing”, not simply of an accessory
accessory any further even though he under paragraph 2 of Article 19 of the
performs acts pertaining to an Code. Mere possession of any article
accessory. of value which has been the subject
of robbery or theft brings about the
Accessory as a fence presumption of “fencing”.
The Revised Penal Code defines what Presidential Decree No. 1612 has,
manners of participation shall render therefore, modified Article 19 of the
an offender liable as an accessory. Revised Penal Code.
Among the enumeration is “by
profiting themselves or by assisting
the offender to profit by the effects of Questions & Answers
the crime”. So the accessory shall be
liable for the same felony committed
by the principal. However, where the
1. May one who profited out or the proceeds of a crime generally

of the proceeds of estafa or brings about criminal liability of an
malversation be prosecuted under the accessory under Article 19, paragraph
Anti-Fencing Law? 1 of the Revised Penal Code. But if
the crime was piracy of brigandage
No. There is only a fence when under Presidential Decree No. 533
the crime is theft or robbery. If the (Anti-piracy and Anti-Highway
crime is embezzlement or estafa, still Robbery Law of 1974), said act
an accessory to the crime of estafa, constitutes the crime of abetting
not a fence. piracy or abetting brigandage as the
2. If principal committed case may be, although the penalty is
robbery by snatching a wristwatch that for an accomplice, not just an
and gave it to his wife to sell, is the accessory, to the piracy or
wife criminally liable? Can she be brigandage. To this end, Section 4 of
prosecuted as an accessory and as a Presidential Decree No. 532 provides
fence? that any person who knowingly and in
any manner… acquires or receives
The liability of the wife is based property taken by such pirates or
on her assisting the principal to profit brigands or in any manner derives
and that act is punishable as fencing. benefit therefrom… shall be
She will no longer be liable as an considered as an accomplice of the
accessory to the crime of robbery. principal offenders and be punished in
accordance with the Rules prescribed
In both laws, Presidential Decree No. by the Revised Penal Code.
1612 and the Revised Penal Code, the
same act is the basis of liability and It shall be presumed that any person
you cannot punish a person twice for who does any of the acts provided in
the same act as that would go against this Section has performed them
double jeopardy. knowingly, unless the contrary is
proven.
Acquiring the effects of piracy or Although Republic Act No. 7659, in

brigandage amending Article 122 of the Revised
Penal Code, incorporated therein the
It is relevant to consider in connection crime of piracy in Philippine territorial
with the criminal liability of waters and thus correspondingly
accessories under the Revised Penal superseding Presidential Decree No.
Code, the liability of persons acquiring 532, Section 4 of the Decree which
property subject of piracy or punishes said acts as a crime of
brigandage. abetting piracy or brigandage, still
stands as it has not been repealed nor
The act of knowingly acquiring or modified, and is not inconsistent with
receiving property which is the effect
any provision of Republic Act No. On the other hand, in case of a

7659. civilian, the mere fact that he
harbored concealed or assisted the
principal to escape does not ipso facto
Destroying the corpus delicti make him an accessory. The law
requires that the principal must have
When the crime is robbery or theft, committed the crime of treason,
with respect to the second parricide, murder or attempt on the
involvement of an accessory, do not life of the Chief Executive. If this is
overlook the purpose which must be not the crime, the civilian does not
to prevent discovery of the crime. become an accessory unless the
principal is known to be habitually
The corpus delicti is not the body of guilty of some other crime. Even if
the person who is killed, even if the the crime committed by the principal
corpse is not recovered, as long as is treason, or murder or parricide or
that killing is established beyond attempt on the life of the Chief
reasonable doubt, criminal liability will Executive, the accessory cannot be
arise and if there is someone who held criminally liable without the
destroys the corpus delicti to prevent principal being found guilty of any
discovery, he becomes an accessory. such crime. Otherwise the effect
would be that the accessory merely
harbored or assisted in the escape of
Harboring or concealing an offender an innocent man, if the principal is
acquitted of the charges.
In the third form or manner of
becoming an accessory, take note Illustration:
that the law distinguishes between a
public officer harboring, concealing or Crime committed is kidnapping for
assisting the principal to escape and a ransom. Principal was being chased
private citizen or civilian harboring by soldiers. His aunt hid him in the
concealing or assisting the principal to ceiling of her house and aunt denied
escape. to soldiers that her nephew had ever
gone there. When the soldiers left,
In the case of a public officer, the the aunt even gave money to her
crime committed by the principal is nephew to go to the province. Is aunt
immaterial. Such officer becomes an criminally liable? No. Article 20 does
accessory by the mere fact that he not include an auntie. However, this
helped the principal to escape by is not the reason. The reason is
harboring or concealing, making use because one who is not a public
of his public function and thus officer and who assists an offender to
abusing the same. escape or otherwise harbors, or
conceals such offender, the crime
committed by the principal must be
either treason, parricide murder or and the offender need not be the
attempt on the life of the Chief principal – unlike paragraph 3, Article
executive or the principal is known to 19 of the Code. The subject acts may
be habitually guilty of some other not bring about criminal liability under
crime. the Code, but under this decree.
Such an offender if violating
The crime committed by the principal Presidential Decree No. 1829 is no
is determinative of the liability of the longer an accessory. He is simply an
accessory who harbors, conceals offender without regard to the crime
knowing that the crime is committed. committed by the person assisted to
If the person is a public officer, the escape. So in the problem, the
nature of the crime is immaterial. standard of the Revised Penal Code,
What is material is that he used his aunt is not criminally liable because
public function in assisting escape. crime is kidnapping, but under
Presidential Decree No. 1829, the
However, although under paragraph 3 aunt is criminally liable but not as an
of Article 19 when it comes to a accessory.
civilian, the law specifies the crimes
that should be committed, yet there is Whether the accomplice and the
a special law which punishes the accessory may be tried and convicted
same act and it does not specify a even before the principal is found
particular crime. Presidential Decree guilty.
No. 1829, which penalizes obstruction
of apprehension and prosecution of There is an earlier Supreme Court
criminal offenders, effective January ruling that the accessory and
16, 1981, punishes acts commonly accomplice must be charged together
referred to as “obstructions of with the principal and that if the latter
justice”. This Decree penalizes under be acquitted, the accomplice and the
Section 1(c) thereof, the act, inter accessory shall not be criminally liable
alia, of also, unless the acquittal is based on
“(c) Harboring or concealing, or a defense which is personal only to
facilitating the escape of any person the principal. Although this ruling
he knows or has reasonable ground to may be correct if the facts charged do
believe or suspect, has committed not make the principal criminally
any offense under existing penal laws liable at all, because there is no crime
in order to prevent his arrest, committed.
prosecution and conviction.”
Yet it is not always true that the
Here, there is no specification of the accomplice and accessory cannot be
crime to be committed by the criminally liable without the principal
offender for criminal liability to be first being convicted. Under Rule 110
incurred for harboring, concealing, or of the Revised Rules on Criminal
facilitating the escape of the offender, Procedure, it is required that all those
involved in the commission of the escape of the principal, the law

crime must be included in the requires that the principal be found
information that may be filed. And in guilty of any of the specified crimes:
filing an information against the treason, parricide, etc. The
person involved in the commission of paragraph uses the particular word
the crime, the law does not “guilty”. So this means that before
distinguish between principal, the civilian can be held liable as an
accomplice and accessory. All will be accessory, the principal must first be
accused and whether a certain found guilty of the crime charged,
accused will be principal or either treason, parricide, murder, or
accomplice or accessory will depend attempt to take the life of the Chief
on what the evidence would show as Executive. If the principal is
to his involvement in the crime. In acquitted, that means he is not guilty
other words, the liability of the and therefore, the civilian who
accused will depend on the quantum harbored, concealed or assisted in the
of evidence adduced by the escape did not violate art. 19. That is
prosecution against the particular as far as the Revised Penal Code is
accused. But the prosecutor must concerned. But not Presidential
initiate proceedings versus the Decree No. 1829. This special law
principal. does not require that there be prior
conviction. It is a malum prohibitum,
Even if the principal is convicted, if no need for guilt, or knowledge of the
the evidence presented against a crime.
supposed accomplice or a supposed In Taer v. CA, accused received from
accessory does not meet the required his co-accused two stolen male
proof beyond reasonable doubt, then carabaos. Conspiracy was not
said accused will be acquitted. So the proven. Taer was held liable as an
criminal liability of an accomplice or accessory in the crime of cattle
accessory does not depend on the rustling under Presidential Decree No.
criminal liability of the principal but 533. [Taer should have been liable for
depends on the quantum of evidence. violation of the Anti-fencing law since
But if the evidence shows that the act cattle rustling is a form of theft or
done does not constitute a crime and robbery of large cattle, except that he
the principal is acquitted, then the was not charged with fencing.]
supposed accomplice and accessory
should also be acquitted. If there is In Enrile v. Amin, a person charged
no crime, then there is no criminal with rebellion should not be
liability, whether principal, separately charged under Presidential
accomplice, or accessory. Decree No. 1829. The theory of
absorption must not confine itself to
Under paragraph 3, Article 19, take common crimes but also to offenses
note in the case of a civilian who punished under special laws which are
harbors, conceals, or assists the
perpetrated in furtherance of the Why does the Revised Penal Code

political offense. specify that such detention shall not
be a penalty but merely a preventive
measure?
PENALTIES
This article gives justification for
detaining the accused. Otherwise,
Measures of prevention not the detention would violate the
considered as penalty constitutional provision that no person
shall be deprived of life, liberty and
The following are the measures of property without due process of law.
prevention or safety which are not And also, the constitutional right of an
considered penalties under Article 24: accused to be presumed innocent
until the contrary is proved.
(1) The arrest and temporary
detention of accused persons as
well as their detention by Repeal of Article 80
reason of insanity or imbecility
or illness requiring their When may a minor be
confinement in a hospital. committed to a reformatory?
(2) The commitment of a minor to If the minor is between 9 - 15

any of the institutions years old and acted with discernment,
mentioned in art. 80 for the sentence must first be suspended
purposes specified therein. under the following conditions:
(3) Suspension from the (1) Crime committed is not

employment or public office punishable by death or reclusion
during the trial or in order to perpetua;
institute proceedings.
(2) He is availing of the benefit of
(4) Fines and other corrective suspension for the first time;
measures which, in the exercise
of their administrative (3) He must still be a minor at the
disciplinary powers, superior time of promulgation of the
officials may impose upon their sentence.
subordinates.
(5) Deprivation of rights and Correlating Article 24 with Article

reparations which the civil laws 29
may establish in penal form.
Although under Article 24, the
detention of a person accused of a
crime while the case against him is regulations governing convicts. If he

being tried does not amount to a signed an undertaking to abide by the
penalty, yet the law considers this as same rules and regulations governing
part of the imprisonment and convicts, then it means that while he
generally deductible from the is suffering from preventive
sentence. imprisonment, he is suffering like a
convict, that is why the credit is full.
When will this credit apply? If the
penalty imposed consists of a But if the offender did not sign an
deprivation of liberty. Not all who undertaking, then he will only be
have undergone preventive subjected to the rules and regulations
imprisonment shall be given a credit governing detention prisoners. As
such, he will only be given 80% or
Under Article 24, preventive 4/5 of the period of his preventive
imprisonment of an accused who is detention.
not yet convicted, but by express
provision of Article24 is not a penalty. From this provision, one can see that
Yet Article 29, if ultimately the the detention of the offender may
accused is convicted and the penalty subject him only to the treatment
imposed involves deprivation of applicable to a detention prisoner or
liberty, provides that the period to the treatment applicable to
during which he had undergone convicts, but since he is not convicted
preventive detention will be deducted yet, while he is under preventive
from the sentence, unless he is one of imprisonment, he cannot be subjected
those disqualified under the law. to the treatment applicable to
convicts unless he signs and agrees to
So, if the accused has actually be subjected to such disciplinary
undergone preventive imprisonment, measures applicable to convicts.
but if he has been convicted for two
or more crimes whether he is a Detention prisoner has more freedom
recidivist or not, or when he has been within the detention institution rather
previously summoned but failed to than those already convicted. The
surrender and so the court has to convicted prisoner suffers more
issue a warrant for his arrest, restraints and hardship than detention
whatever credit he is entitled to shall prisoners.
be forfeited.
Under what circumstances may a
If the offender is not disqualified from detention prisoner be released, even
the credit or deduction provided for in though the proceedings against him
Article 29 of the Revised Penal Code, are not yet terminated?
then the next thing to determine is
whether he signed an undertaking to Article 29 of the Revised Penal Code
abide by the same rules and has been amended by a Batas
Pambansa effective that tool effect on Questions & Answers

September 20, 1980. This
amendment is found in the Rules of
Court, under the rules on bail in Rule If the offender has already been
114 of the Rules on Criminal released, what is the use of continuing
Procedure, the same treatment the proceedings?
exactly is applied there.
The proceedings will determine
In the amendment, the law does not whether the accused is liable or not.
speak of credit. Whether the person If he was criminally liable, it follows
is entitled to credit is immaterial. The that he is also civilly liable. The civil
discharge of the offender from liability must be determined. That is
preventive imprisonment or detention why the trial must go on.
is predicated on the fact that even if
he would be found guilty of the crime
charged, he has practically served the Duration of penalties
sentence already, because he has
been detained for a period already
equal to if not greater than the Reclusion perpetua
maximum penalty that would be
possibly be imposed on him if found What is the duration of reclusion
guilty. perpetua?
If the crime committed is punishable Do not answer Article 27 to this

only by destierro, the most the question. The proper answer would
offender may be held under be that reclusion perpetua has no
preventive imprisonment is 30 days, duration because this is an indivisible
and whether the proceedings are penalty and indivisible penalties have
terminated or not, such detention no durations.
prisoner shall be discharged.
Under Article 27, those sentenced to
Understand the amendment made to reclusion perpetua shall be pardoned
Article 29. This amendment has been after undergoing the penalty for 30
incorporated under Rule 114 precisely years, unless such person, by reason
to do away with arbitrary detention. of his conduct or some other serious
cause, shall be considered by the
Proper petition for habeas corpus Chief Executive as unworthy of
must be filed to challenge the legality pardon.
of the detention of the prisoner.
Under Article 70, which is the Three-
Fold Rule, the maximum period shall
in no case exceed 40 years. If a
convict who is to serve several
sentences could only be made to Under the Revised Penal Code,

serve 40 years, with more reason, destierro is the penalty imposed in
one who is sentenced to a singly the following situations:
penalty of reclusion perpetua should
not be held for more than 40 years. (1) When a legally married person
who had surprised his or her
The duration of 40 years is not a spouse in the act of sexual
matter of provision of law; this is only intercourse with another and
by analogy. There is no provision of while in that act or immediately
the Revised Penal Code that one thereafter should kill or inflict
sentenced to reclusion perpetua serious physical injuries upon
cannot be held in jail for 40 years and the other spouse, and/or the
neither is there a decision to this paramour or mistress. This is
effect. found in Article 247.
(2) In the crime of grave threat or

Destierro light threat, when the offender
is required to put up a bond for
good behavior but failed or
What is the duration of destierro? refused to do so under Article
284, such convict shall be
The duration of destierro is from six sentenced to destierro so that
months and one day, to six year, he would not be able to carry
which is the same as that of prision out his threat.
correcional and suspension. Destierro
is a principal penalty. It is a (3) In the crime of concubinage,
punishment whereby a convict is the penalty prescribed for the
vanished to a certan place and is concubine is destierro under
prohibited form entering or coming Article 334.
near that place designated in the
sentence, not less than 25 Kms.. (4) Where the penalty prescribed
However, the court cannot extend by law is arresto mayor, but the
beyond 250 Kms. If the convict offender is entitled privileged
should enter the prohibited places, he mitigating circumstance and
commits the crime of evasion of lowering the prescribed penalty
service of sentence under Article 157. by one degree, the penalty one
But if the convict himself would go degree lower is destierro. Thus,
further from which he is vanished by it shall be the one imposed.
the court, there is no evasion of
sentence because the 240-Km. limit is
upon the authority of the court in Civil Interdiction
vanishing the convict.
Civil interdiction is an accessory 1. If the penalty of

penalty. Civil interdiction shall suspension is imposed as an
deprive the offender during the time accessory, what is the duration?
of his sentence:
Its duration shall be that of the
(1) The rights of parental authority, principal penalty.
or guardianship either as to the
person or property of any ward; 2. If the penalty of
temporary disqualification is imposed
(2) Marital authority; as principal penalty, what is the
duration?
(3) The right to manage his
property; and The duration is six years and
one day to 12 years.
(4) The right to dispose of such
property by any act or any 3. What do we refer to if it is
conveyance inter vivos. perpetual or temporary
disqualification?
Can a convict execute a last will and
testament? Yes. We refer to the duration of the
disqualification.
Primary classification of penalties 4. What do we refer to if it is

special or absolute disqualification?
Principal penalties and accessory We refer to the nature of the

penalties disqualification.
The penalties which are both principal

and accessory penalties are the The classification of principal and
following: accessory is found in Article 25.
(1) Perpetual or temporary absolute In classifying the penalties as

disqualification; principal and accessory, what is
meant by this is that those penalties
(2) Perpetual or temporary special classified as accessory penalties need
disqualification. not be stated in the sentence. The
accessory penalties follow the
principal penalty imposed for the
Questions & Answers crime as a matter of course. So in
the imposition of the sentence, the
court will specify only the principal
penalty but that is not the only
penalty which the offender will suffer. duration of said imprisonment

Penalties which the law considers as shall exceed 18 months.
accessory to the prescribed penalty
are automatically imposed even (5) Article 44. Arresto - suspension
though they are not stated in the of the right to hold office and
judgment. As to the particular the right of suffrage during the
penalties that follow a particular term of the sentence.
principal penalty, Articles 40 to 45 of
the Revised Penal Code shall govern. There are accessory penalties which
are true to other principal penalties.
If asked what are the accessory An example is the penalty of civil
penalties, do not just state the interdiction. This is an accessory
accessory penalties. State the penalty and, as provided in Article 34,
principal penalty and the a convict sentenced to civil
corresponding accessory penalties. interdiction suffers certain
disqualification during the term of the
Penalties in which other accessory sentence. One of the disqualifications
penalties are inherent: is that of making a conveyance of his
property inter vivos.
(1) Article 40. Death - perpetual
absolute disqualification, and Illustration:
civil interdiction during 30 years
following date of sentence; A has been convicted and is serving
the penalty of prision mayor. While
(2) Article 41. Reclusion perpetua serving sentence, he executed a deed
and reclusion temporal - civil of sale over his only parcel of land. A
interdiction for life or during the creditor moved to annul the sale on
period of the sentence as the the ground that the convict is not
case may be, and perpetual qualified to execute a deed of
absolute disqualification; conveyance inter vivos. If you were
the judge, how would you resolve the
(3) Article 42. Prision mayor - move of the creditor to annul the
temporary absolute sale?
disqualification perpetual special
disqualification from the right of Civil interdiction is not an accessory
suffrage; penalty in prision mayor. The convict
can convey his property.
(4) Article 43. Prision correccional -
suspension from public office,
from the right to follow a Questions & Answers
profession or calling, and
perpetual special disqualification
from the rights of suffrage if the
What accessory penalty is whether the felony committed is

common to all principal penalties? grave or less grave on one hand, or it
is light only on the other hand. The
Confiscation or forfeiture on the legal effect of failure to post a bond
instruments or proceeds of the crime. for good behavior is not imprisonment
but destierro under Article 284. Thus,
it is clear that the two bonds are not
Bond to keep the peace the same considering that the legal
effect or the failure to put up the
One of the principal penalties bond is not the same.
common to the others is bond to keep Divisible and indivisible penalties
the peace. There is no crime under
the Revised Penal Code which carries When we talk of period, it is implying
this penalty. that the penalty is divisible.
If, after being given a problem, you

Bond for good behavior were asked to state the period in
which the penalty of reclusion
Bond for good behavior is prescribed perpetua is to be imposed, remember
by the Revised Penal Code for the that when the penalty is indivisible,
crimes of grave threats and light there is no period. Do not talk of
threats under Article 234. You cannot period, because when you talk of
find this penalty in Article 25 because period, you are implying that the
Article 25 only provides for bond to penalty is divisible because the period
keep the peace. Remember that no referred to is the minimum, the
felony shall be punished by any medium, and the maximum. If it is
penalty not prescribed by law prior to indivisible, there is no such thing as
its commission pursuant to Article 21. minimum, medium and maximum.
Questions & Answers The capital punishment
You were asked to state whether you

1. If bond to keep the peace are in favor or against capital
is not the same as bond for good punishment. Understand that you are
behavior, are they one and the same not taking the examination in
bond that differ only in name? Theology. Explain the issue on the
basis of social utility of the penalty.
No. The legal effect of each is Is it beneficial in deterring crimes or
entirely different. The legal effect of not? This should be the premise of
a failure to post a bond to keep the your reasoning.
peace is imprisonment either for six
months or 30 days, depending on
Designation of penalty the penalty of reclusion perpetua shall

be from 20 years to 40 years.
Since the principal penalties carry Because of this, speculations arose as
with them certain accessory penalties, to whether it made reclusion perpetua
the courts are not at liberty to use a divisible penalty.
any designation of the principal
penalty. So it was held that when the As we know, when a penalty has a
penalty should be reclusion perpetua, fixed duration, it is said to be divisible
it is error for the court to use the and, in accordance with the provisions
term “life imprisonment”. In other of Articles 65 and 76, should be
words, the courts are not correct divided into three equal portions to
when they deviate from the technical form one period of each of the three
designation of the principal penalty, portions. Otherwise, if the penalty
because the moment they deviate has no fixed duration, it is an
from this designation, there will be no indivisible penalty. The nature of the
corresponding accessory penalties penalty as divisible or indivisible is
that will go with them. decisive of the proper penalty to be
imposed under the Revised Penal
Illustration: Code inasmuch as it determines
whether the rules in Article 63 or the
When the judge sentenced the rules in Article 64 should be observed
accused to the penalty of reclusion in fixing the penalty.
perpetua, but instead of saying
reclusion perpetua, it sentenced the Thus, consistent with the rule
accused to life imprisonment, the mentioned, the Supreme Court, by its
designation is wrong. First Division, applied Article 65 of the
Code in imposing the penalty for rape
in People v. Conrado Lucas, GR
Reclusion perpetua as modified No. 108172-73, May 25, 1994. It
divided the time included in the
Before the enactment of Republic Act penalty of reclusion perpetua into
No. 7659, which made amendments three equal portions, with each
to the Revised Penal Code, the portion composing a period as
penalty of reclusion perpetua had no follows:
fixed duration. The Revised Penal
Code provides in Article 27 that the Minimum - 20 years and one day, to
convict shall be pardoned after 26 years and eight months;
undergoing the penalty for thirty
years, unless by reason of his conduct Medium - 26 years, eight months and
or some other serious cause, he is not one day, to 33 years and four
deserving of pardon. As amended by months;
Section 21 of Republic Act No. 7659,
the same article now provides that
Maximum - 34 years, four months its original classification

and one day, to 40 years. as an indivisible penalty.
It shall then remain as an
Considering the aggravating indivisible penalty.
circumstance of relationship, the
Court sentenced the accused to Verily, if reclusion
imprisonment of 34 years, four perpetua was classified as
months and one day of reclusion a divisible penalty, then
perpetua, instead of the straight Article 63 of the Revised
penalty of reclusion perpetua imposed Penal Code would lose its
by the trial court. The appellee reason and basis for
seasonably filed a motion for existence. To illustrate,
clarification to correct the duration of the first paragraph of
the sentence, because instead of Section 20 of the
beginning with 33 years, four months amended RA No. 6425
and one day, it was stated as 34 provides for the penalty of
years, four months and one day. The reclusion perpetua to
issue of whether the amendment of death whenever the
Article 27 made reclusion perpetua a dangerous drugs involved
divisible penalty was raised, and are of any of the
because the issue is one of first quantities stated herein.
impression and momentous If Article 63 of the Code
importance, the First Division referred were no longer applicable
the motion to the Court en banc. because reclusion
perpetua is supposed to
In a resolution promulgated on be a divisible penalty,
January 9, 1995, the Supreme Court then there would be no
en banc held that reclusion perpetua statutory rules for
shall remain as an indivisible penalty. determining when either
To this end, the resolution states: reclusion perpetua or
death should be the
After deliberating on the imposable penalty. In
motion and re-examining fine, there would be no
the legislation history of occasion for imposing
RA 7659, the Court reclusion perpetua as the
concludes that although penalty in drug cases,
Section 17 of RA 7659 has regardless of the
fixed the duration of attendant modifying
Reclusion Perpetua from circumstances.
twenty years (20) and
one (1) to forty 40 years, Now then, if Congress
there was no clear had intended to reclassify
legislative intent to alter reclusion perpetua as
divisible penalty, then it graduated scales of

should have amended penalties in the Code, as
Article 63 and Article 76 set out in Article 25, 70
of the Revised Penal and 21, reclusion
Code. The latter is the perpetua is the penalty
law on what are immediately next higher
considered divisible to reclusion temporal, it
penalties under the Code follows by necessary
and what should be the implication that the
duration of the periods minimum of reclusion
thereof. There are, as perpetua is twenty (20)
well, other provisions of years and one (1) day
the Revised Penal Code with a maximum duration
involving reclusion thereafter to last for the
perpetua, such as Article rest of the convict’s
41 on the accessory natural life, although,
penalties thereof and pursuant to Article 70, it
paragraphs 2 and 3 of appears that the
Article 61, which have not maximum period for the
been touched by a service of penalties shall
corresponding not exceed forty (40)
amendment. years. It would be legally
absurd and violative of
Ultimately, the question arises: “What the scales of penalties in
then may be the reason for the the Code to reckon the
amendment fixing the duration of minimum of Reclusion
reclusion perpetua?” This question Perpetua at thirty (30)
was answered in the same case of years since there would
People v. Lucas by quoting pertinent thereby be a resultant
portion of the decision in People v. lacuna whenever the
Reyes, 212 SCRA 402, thus: penalty exceeds the
maximum twenty (20)
The imputed years of Reclusion
duration of thirty (30) Temporal but is less than
years for reclusion thirty (30) years.
perpetua, thereof, is only
to serve as the basis for
determining the convict’s Innovations on the imposition of the
eligibility for pardon or for death penalty
the application of the
three-fold rule in the Aside form restoring the death
service of penalties. penalty for certain heinous crimes,
Since, however, in all the Republic Act No. 7659 made
innovations on the provisions of the woman was pregnant and within

Revised Penal Code regarding the one year after delivery.
imposition of the death penalty:
(1) Article 47 has been reworded to Subsidiary penalty

expressly include among the
instances where the death Is subsidiary penalty an accessory
penalty shall not be imposed, penalty? No.
the case of an offender who is
below 18 years old at the time If the convict does not want to pay
of the commission of the fine and has so many friends and
offense. But even without this wants to prolong his stay in jail, can
amendment, the death penalty he stay there and not pay fine? No.
may not be meted out on an
offender who was below 18 After undergoing subsidiary penalty
years of age at the time of the and the convict is already released
commission of the crime from jail and his financial
because Article 68 the lowers circumstances improve, can he be
the imposable penalty upon made to pay? Yes, for the full
such offenders by at least one amount with deduction.
degree than that prescribed for
the crime. Article 39 deals with subsidiary
penalty. There are two situations
(2) In the matter of executing the there:
death penalty, Article 81 has
been amended and, thus, (1) When there is a principal
directs that the manner of penalty of imprisonment or any
putting the convict to death by other principal penalty and it
electrocution shall be changed carries with it a fine; and
to gas poisoning as soon as the
facilities are provided, and the (2) When penalty is only a fine.
sentence shall be carried out
not later that one year after the Therefore, there shall be no
finality of judgment. subsidiary penalty for the non-
payment of damages to the offended
(3) The original provision of Article party.
83, anent the suspension of the
execution of the death penalty This subsidiary penalty is one of
for three years if the convict important matter under the title of
was a woman, has been deleted penalty. A subsidiary penalty is not
and instead, limits such an accessory penalty. Since it is not
suspension to last while the an accessory penalty, it must be
expressly stated in the sentence, but
the sentence does not specify the A subsidiary penalty will only be
period of subsidiary penalty because served if the sheriff should return the
it will only be known if the convict execution for the fine on the property
cannot pay the fine. The sentence of the convict and he does not have
will merely provide that in case of the properties to satisfy the writ.
non-payment of the fine, the convict
shall be required to save subsidiary
penalty. It will then be the prison Questions & Answers
authority who will compute this.
So even if subsidiary penalty is proper The penalty imposed by the

in a case, if the judge failed to state judge is fine only. The sheriff then
in the sentence that the convict shall tried to levy the property of the
be required to suffer subsidiary defendant after it has become final
penalty in case of insolvency to pay and executory, but it was returned
the fine, that convict cannot be unsatisfied. The court then issued an
required to suffer the accessory order for said convict to suffer
penalty. This particular legal point is subsidiary penalty. The convict was
a bar problem. Therefore, the detained, for which reason he filed a
judgment of the court must state this. petition for habeas corpus contending
If the judgment is silent, he cannot that his detention is illegal. Will the
suffer any subsidiary penalty. petition prosper?
The subsidiary penalty is not an Yes. The judgment became

accessory penalty that follows the final without statement as to
principal penalty as a matter of subsidiary penalty, so that even if the
course. It is not within the control of convict has no money or property to
the convict to pay the fine or not and satisfy the fine, he cannot suffer
once the sentence becomes final and subsidiary penalty because the latter
executory and a writ of execution is is not an accessory and so it must be
issued to collect the fine, if convict expressly stated. If the court
has property to levy upon, the same overlooked to provide for subsidiary
shall answer for the fine, whether he penalty in the sentence and its
likes it or not. It must be that the attention was later called to that
convict is insolvent to pay the fine. effect, thereafter, it tried to modify
That means that the writ of execution the sentence to include subsidiary
issued against the property of the penalty after period to appeal had
convict, if any, is returned unsatisfied. already elapsed, the addition of
subsidiary penalty will be null and
In People v. Subido, it was held that void. This is tantamount to double
the convict cannot choose not to jeopardy.
serve, or not to pay the fine and
instead serve the subsidiary penalty.
If the fine is prescribed with the maximum duration of the

penalty of imprisonment or any subsidiary penalty is only 15
deprivation of liberty, such days.
imprisonment should not be higher
than six years or prision correccional. There are some who use the term
Otherwise, there is no subsidiary subsidiary imprisonment. The term is
penalty. wrong because the penalty is not only
served by imprisonment. The
subsidiary penalty follows the nature
When is subsidiary penalty applied of the principal penalty. If the
principal penalty is destierro, this
(1) If the subsidiary penalty being a divisible penalty, and a
prescribed for the non-payment penalty with a fixed duration, the
of fine which goes with the non-payment of the fine will bring
principal penalty, the maximum about subsidiary penalty. This being
duration of the subsidiary a restriction of liberty with a fixed
penalty is one year, so there is duration under Article 39 for the
no subsidiary penalty that goes nonpayment of fine that goes with the
beyond one year. But this will destierro, the convict will be required
only be true if the one year to undergo subsidiary penalty and it
period is higher than 1/3 of the will also be in the form of destierro.
principal penalty, the convict
cannot be made to undergo Illustration:
subsidiary penalty more than
1/3 of the duration of the A convict was sentenced to
principal penalty and in no case suspension and fine. This is a penalty
will it be more than 1 year - get where a public officer anticipates
1/3 of the principal penalty - public duties, he entered into the
whichever is lower. performance of public office even
before he has complied with the
(2) If the subsidiary penalty is to be required formalities. Suppose the
imposed for non payment of convict cannot pay the fine, may he
fine and the principal penalty be required to undergo subsidiary
imposed be fine only, which is a penalty?
single penalty, that means it
does not go with another Yes, because the penalty of
principal penalty, the most that suspension has a fixed duration.
the convict will be required to Under Article 27, suspension and
undergo subsidiary destierro have the same duration as
imprisonment is six months, if prision correccional. So the duration
the felony committed is grave does not exceed six years. Since it is
or less grave, otherwise, if the a penalty with a fixed duration under
felony committed is slight, the Article 39, when there is a subsidiary
penalty, such shall be 1/3 of the the convict be required to undergo

period of suspension which in no case subsidiary penalty in case he is
beyond one year. But the subsidiary insolvent to pay the fine?
penalty will be served not by
imprisonment but by continued The Three-Fold Rule should not
suspension. applied by the court. In this case of
50 counts of estafa, the penalty
If the penalty is public censure and imposed was arresto mayor and a fine
fine even if the public censure is a of P200.00. Arresto mayor + P200.00
light penalty, the convict cannot be x 50. Arresto Mayor is six months x
required to pay the fine for subsidiary 50 = 25 years. P200.00 x 50 =
penalty for the non-payment of the P10,000.00. Thus, I would impose a
fine because public censure is a penalty of arresto mayor and a fine of
penalty that has no fixed duration. P200.00 multiplied by 50 counts and
state further that “as a judge, I am
Do not consider the totality of the not in the position to apply the Three-
imprisonment the convict is Fold Rule because the Three-Fold Rule
sentenced to but consider the totality is to be given effect when the convict
or the duration of the imprisonment is already serving sentence in the
that the convict will be required to penitentiiary. It is the prison
serve under the Three-Fold Rule. If authority who will apply the Three-
the totality of the imprisonment under Fold Rule. As far as the court is
this rule does not exceed six years, concerned, that will be the penalty to
then, even if the totality of all the be imposed.”
sentences without applying the Three-
Fold Rule will go beyond six years, the For the purposes of subsidiary
convict shall be required to undergo penalty, apply the Three-Fold Rule if
subsidiary penalty if he could not pay the penalty is arresto mayor and a
the fine. fine of P200.00 multiplied by 3. This
means one year and six months only.
Illustration: So, applying the Three- Fold Rule, the
penalty does not go beyond six years.
A collector of NAWASA collected from Hence, for the non- payment of the
50 houses within a certain locality. fine of P10,000.00, the convict shall
When he was collecting NAWASA bills, be required to undergo subsidiary
the charges of all these consumers penalty. This is because the
was a minimum of 10. The collector imprisonment that will be served will
appropriated the amount collected not go beyond six years. It will only
and so was charged with estafa. He be one year and six months, since in
was convicted. Penalty imposed was the service of the sentence, the
arresto mayor and a fine of P200.00 Three-Fold Rule will apply.
in each count. If you were the judge,
what penalty would you impose? May
It is clearly provided under Article 39 judge lowered the penalty by one

that if the means of the convict degree. Is the judge correct?
should improve, even if he has
already served subsidiary penalty, he No. In such a case when there are
shall still be required to pay the fine aggravating circumstances, no matter
and there is no deduction for that how many mitigating circumstances
amount which the convict has already there are, after offsetting, do not go
served by way of subsidiary penalty. down any degree lower. The penalty
prescribed by law will be the penalty
to be imposed, but in the minimum
Articles 63 and 64 period. Cannot go below the
minimum period when there is an
If crime committed is parricide, aggravating circumstance.
penalty is reclusion perpetua. The
accused, after committing parricide, Go into the lowering of the penalty by
voluntarily surrendered and pleaded one degree if the penalty is divisible.
guilty of the crime charged upon So do not apply the rule in paragraph
arraignment. It was also established 5 of Article 64 to a case where the
that he was intoxicated, and no penalty is divisible.
aggravating circumstances were
present. What penalty would you
impose? Article 66
Reclusion perpetua, because it is an When there are mitigating

indivisible penalty. circumstance and aggravating
circumstance and the penalty is only
When there are two or more fine, when it is only ordinary
mitigating circumstances and there is mitigating circumstance and
no aggravating circumstance, penalty aggravating circumstance, apply
to be imposed shall be one degree Article 66. Because you determine
lower to be imposed in the proper the imposable fine on the basis of the
period. Do not apply this when there financial resources or means of the
is one aggravating circumstance. offender. But if the penalty would be
lowered by degree, there is a
Illustration: privileged mitigating circumstance or
the felony committed is attempted or
There are about four mitigating frustrated, provided it is not a light
circumstances and one aggravating felony against persons or property,
circumstance. Court offsets the because if it is a light felony and
aggravating circumstance against the punishable by fine, it is not a crime at
mitigating circumstance and there still all unless it is consummated. So, if it
remains three mitigating is attempted or frustrated, do not go
circumstances. Because of that, the one degree lower because it is not
punishable unless it is a light felony than that prescribed by law

against person or property where the depending on what the
imposable penalty will be lowered by particular provision of the
one degree or two degrees. Revised Penal Code states.
Penalty prescribed to a crime is (4) When the penalty prescribed for

lowered by degrees in the following the crime committed is a
cases: divisible penalty and there are
two or more ordinary mitigating
(1) When the crime is only circumstances and no
attempted or frustrated aggravating circumstances
whatsoever, the penalty next
If it is frustrated, penalty is one lower in degree shall be the one
degree lower than that imposed.
prescribed by law.
(5) Whenever the provision of the
If it is attempted, penalty is two Revised Penal Code specifically
degrees lower than that lowers the penalty by one or
prescribed by law. two degrees than what is
ordinarily prescribed for the
This is so because the penalty crime committed.
prescribed by law for a crime
refers to the consummated Penalty commonly imposed by the
stage. Revised Penal Code may be by way of
imprisonment or by way of fine or, to
(2) When the offender is an a limited extent, by way of destierro
accomplice or accessory only or disqualification, whether absolute
or special.
Penalty is one degree lower in
the case of an accomplice. In the matter of lowering the penalty
by degree, the reference is Article 71.
Penalty is two degrees lower in It is necessary to know the
the case of an accessory. chronology under Article 71 by simply
knowing the scale. Take note that
This is so because the penalty destierro comes after arresto mayor
prescribed by law for a given so the penalty one degree lower than
crime refers to the arresto mayor is not arresto menor,
consummated stage. but destierro. Memorize the scale in
Article 71.
(3) When there is a privilege
mitigating circumstance in favor In Article 27, with respect to the
of the offender, it will lower the range of each penalty, the range of
penalty by one or two degrees arresto menor follows arresto mayor,
since arresto menor is one to 30 days lower is arresto mayor

or one month, while arresto mayor is maximum. In other words,
one month and one day to six each degree will be made up of
months. On the other hand, the only one period because the
duration of destierro is the same as penalty prescribed is also made
prision correccional which is six up only of one period.
months and one day to six years. But (2) When the penalty prescribed by
be this as it is, under Article 71, in the the Code is made up of two
scale of penalties graduated according periods of a given penalty,
to degrees, arresto mayor is higher every time such penalty is
than destierro. lowered by one degree you
have to go down also by two
In homicide under Article 249, the periods.
penalty is reclusion temporal. One
degree lower, if homicide is Illustration:
frustrated, or there is an accomplice
participating in homicide, is prision If the penalty prescribed for the
mayor, and two degrees lower is crime is prision correccional
prision correccional. medium to maximum, the
penalty one degree lower will be
This is true if the penalty prescribed arresto mayor maximum to
by the Revised Penal Code is a whole prision correccional minimum,
divisible penalty -- one degree or 2 and the penalty another degree
degrees lower will also be punished as lower will be arresto mayor
a whole. But generally, the penalties minimum to medium. Every
prescribed by the Revised Penal Code degree will be composed of two
are only in periods, like prision periods.
correcional minimum, or prision
correcional minimum to medium. (3) When the penalty prescribed by
the Revised Penal Code is made
Although the penalty is prescribed by up of three periods of different
the Revised Penal Code as a period, penalties, every time you go
such penalty should be understood as down one degree lower, you
a degree in itself and the following have to go down by three
rules shall govern: periods.
(1) When the penalty prescribed by Illustration:

the Revised Code is made up of
a period, like prision The penalty prescribed by the
correccional medium, the Revised Penal Code is prision
penalty one degree lower is mayor maximum to reclusion
prision correccional minimum, temporal medium, the penalty
and the penalty two degrees one degree lower is prision
correccional maximum to accessory participation, the fine is

prision mayor medium. Another lowered by deducting 1/4 of the
degree lower will be arresto maximum amount of the fine from
mayor maximum to prision such maximum without changing the
correccional medium. minimum amount prescribed by law.
These rules have nothing to do with Illustration:

mitigating or aggravating
circumstances. These rules refer to If the penalty prescribed is a fine
the lowering of penalty by one or two ranging from P200.00 to P500.00, but
degrees. As to how mitigating or the felony is frustrated so that the
aggravating circumstances may affect penalty should be imposed one
the penalty, the rules are found in degree lower, 1/4 of P500.00 shall be
Articles 63 and 64. Article 63 governs deducted therefrom. This is done by
when the penalty prescribed by the deducting P125.00 from P500.00,
Revised Penal Code is indivisible. leaving a difference of P375.00. The
Article 64 governs when the penalty penalty one degree lower is P375.00.
prescribed by the Revised Penal Code To go another degree lower, P125.00
is divisible. When the penalty is shall again be deducted from P375.00
indivisible, no matter how many and that would leave a difference of
ordinary mitigating circumstances P250.00. Hence, the penalty another
there are, the prescribed penalty is degree lower is a fine ranging from
never lowered by degree. It takes a P200.00 to P250.00. If at all, the fine
privileged mitigating circumstance to has to be lowered further, it cannot
lower such penalty by degree. On the go lower than P200.00. So, the fine
other hand, when the penalty will be imposed at P200.00. This rule
prescribed by the Revised Penal Code applies when the fine has to be
is divisible, such penalty shall be lowered by degree.
lowered by one degree only but
imposed in the proper period, when
there are two or more ordinary Article 66
mitigating circumstance and there is
no aggravating circumstance In so far as ordinary mitigating or
whatsoever. aggravating circumstance would
affect the penalty which is in the form
of a fine, Article 66 of the Revised
Article 75 – Fines Penal Code shall govern. Under this
article, it is discretionary upon the
With respect to the penalty of fine, if court to apply the fine taking into
the fine has to be lowered by degree consideration the financial means of
either because the felony committed the offender to pay the same. In
is only attempted or frustrated or other words, it is not only the
because there is an accomplice or an mitigating and/or aggravating
circumstances that the court shall than the product of the most severe
take into consideration, but primarily, penalty multiplied by three but in no
the financial capability of the offender case will the penalties to be served by
to pay the fine. For the same crime, the convict be more than 40 years.
the penalty upon an accused who is
poor may be less than the penalty Although this rule is known as the
upon an accused committing the Three-Fold rule, you cannot actually
same crime but who is wealthy apply this if the convict is to serve
. only three successive penalties. The
For instance, when there are two Three-Fold Rule can only be applied if
offenders who are co-conspirators to the convict is to serve four or more
a crime, and their penalty consists of sentences successively. If the
a fine only, and one of them is sentences would be served
wealthy while the other is a pauper, simultaneously, the Three-Fold rule
the court may impose a higher does not govern.
penalty upon the wealthy person and
a lower fine for the pauper. The chronology of the penalties as
provided in Article 70 of the Revised
Penalty for murder under the Revised Penal Code shall be followed.
Penal Code is reclusion temporal
maximum to death. So, the penalty It is in the service of the penalty, not
would be reclusion temporal in the imposition of the penalty, that
maximum – reclusion perpetua – the Three-Fold rule is to be applied.
death. This penalty made up of three The three-Fold rule will apply whether
periods. the sentences are the product of one
information in one court, whether the
sentences are promulgated in one day
The Three-Fold Rule or whether the sentences are
promulgated by different courts on
Under this rule, when a convict is to different days. What is material is
serve successive penalties, he will not that the convict shall serve more than
actually serve the penalties imposed three successive sentences.
by law. Instead, the most severe of
the penalties imposed on him shall be For purposes of the Three-Fold Rule,
multiplied by three and the period will even perpetual penalties are taken
be the only term of the penalty to be into account. So not only penalties
served by him. However, in no case with fixed duration, even penalties
should the penalty exceed 40 years. without any fixed duration or
indivisible penalties are taken into
This rule is intended for the benefit of account. For purposes of the Three-
the convict and so, you will only apply Fold rule, indivisible penalties are
this provided the sum total of all the given equivalent of 30 years. If the
penalties imposed would be greater penalty is perpetual disqualification, it
will be given and equivalent duration serving sentence that the prison
of 30 years, so that if he will have to authorities should determine how long
suffer several perpetual he should stay in jail.
disqualification, under the Three-Fold
rule, you take the most severe and Illustration:
multiply it by three. The Three-Fold
rule does not apply to the penalty A district engineer was sentenced by
prescribed but to the penalty imposed the court to a term of 914 years in
as determined by the court. prison.
Illustration: A person was sentenced to three

death sentences. Significance: If
Penalties imposed are – ever granted pardon for 1 crime, the
two remaining penalties must still be
One prision correcional – minimum – executed.
2 years and 4 months
This rule will apply only if sentences
One arresto mayor - 1 are to be served successively.
month and 1 day to 6 months
One prision mayor - 6 Act No. 4013 (Indeterminate

years and 1 day to 12 years Sentence Law), as amended
Do not commit the mistake of Three things to know about the

applying the Three- Fold Rule in this Indeterminate Sentence Law:
case. Never apply the Three-Fold rule
when there are only three sentences. (1) Its purpose;
Even if you add the penalties, you can
never arrive at a sum higher than the (2) Instances when it does not
product of the most severe multiplied apply; and
by three.
(3) How it operates
The common mistake is, if given a
situation, whether the Three-Fold Indeterminate Sentence Law governs
Rule could be applied. If asked, if you whether the crime is punishable under
were the judge, what penalty would the Revised Penal Code or a special
you impose, for purposes of imposing Law. It is not limited to violations of
the penalty, the court is not at liberty the Revised Penal Code.
to apply the Three-Fold Rule,
whatever the sum total of penalty for It applies only when the penalty
each crime committed, even if it served is imprisonment. If not by
would amount to 1,000 years or imprisonment, then it does not apply.
more. It is only when the convict is
sentence, the court will fix the

maximum of the sentence. If there is
Purpose a privilege mitigating circumstance
which has been taken in consideration
The purpose of the Indeterminate in fixing the maximum of the
Sentence law is to avoid prolonged indeterminate sentence, the minimum
imprisonment, because it is proven to shall be based on the penalty as
be more destructive than constructive reduced by the privilege mitigating
to the offender. So, the purpose of circumstance within the range of the
the Indeterminate Sentence Law in penalty next lower in degree.
shortening the possible detention of
the convict in jail is to save valuable If the crime is a violation of a special
human resources. In other words, if law, in fixing the maximum of the
the valuable human resources were indeterminate sentence, the court will
allowed prolonged confinement in jail, impose the penalty within the range
they would deteriorate. Purpose is to of the penalty prescribed by the
preserve economic usefulness for special law, as long as it will not
these people for having committed a exceed the limit of the penalty. In
crime -- to reform them rather than fixing the minimum, the court can fix
to deteriorate them and, at the same a penalty anywhere within the range
time, saving the government of penalty prescribed by the special
expenses of maintaining the convicts law, as long as it will not be less than
on a prolonged confinement in jail. the minimum limit of the penalty
under said law. No mitigating and
If the crime is a violation of the aggravating circumstances are taken
Revised Penal Code, the court will into account.
impose a sentence that has a
minimum and maximum. The The minimum and the maximum
maximum of the indeterminate referred to in the Indeterminate
sentence will be arrived at by taking Sentence Law are not periods. So, do
into account the attendant mitigating not say, maximum or minimum
and/or aggravating circumstances period. For the purposes of the
according to Article 64 of the Revised indeterminate Sentence Law, use the
Penal Code. In arriving at the term minimum to refer to the
minimum of the indeterminate duration of the sentence which the
sentence, the court will take into convict shall serve as a minimum, and
account the penalty prescribed for the when we say maximum, for purposes
crime and go one degree lower. of ISLAW, we refer to the maximum
Within the range of one degree lower, limit of the duration that the convict
the court will fix the minimum for the may be held in jail. We are not
indeterminate sentence, and within referring to any period of the penalty
the range of the penalty arrived at as as enumerated in Article 71.
the maximum in the indeterminate
Courts are required to fix a minimum (5) If there are two or more
and a maximum of the sentence that mitigating circumstance and no
they are to impose upon an offender aggravating circumstance,
when found guilty of the crime penalty next lower in degree
charged. So, whenever the shall be the one imposed.
Indeterminate Sentence Law is
applicable, there is always a minimum Rule under Art 64 shall apply in
and maximum of the sentence that determining the maximum but not in
the convict shall serve. If the crime is determining the minimum.
punished by the Revised Penal Code,
the law provides that the maximum In determining the applicable penalty
shall be arrived at by considering the according to the Indeterminate
mitigating and aggravating Sentence Law, there is no need to
circumstances in the commission of mention the number of years, months
the crime according to the proper and days; it is enough that the name
rules of the Revised Penal Code. To of the penalty is mentioned while the
fix the maximum, consider the Indeterminate Sentence Law is
mitigating and aggravating applied. To fix the minimum and the
circumstances according to the rules maximum of the sentence, penalty
found in Article 64. This means – under the Revised Penal Code is not
the penalty to be imposed by court
(1) Penalties prescribed by the law because the court must apply the
for the crime committed shall Indeterminate Sentence Law. The
be imposed in the medium attendant mitigating and/or
period if no mitigating or aggravating circumstances in the
aggravating circumstance; commission of the crime are taken
into consideration only when the
(2) If there is aggravating maximum of the penalty is to be
circumstance, no mitigating, fixed. But in so far as the minimum is
penalty shall be imposed in the concerned, the basis of the penalty
maximum; prescribed by the Revised Penal Code,
and go one degree lower than that.
(3) If there is mitigating But penalty one degree lower shall be
circumstance, no aggravating, applied in the same manner that the
penalty shall be in the maximum is also fixed based only on
minimum; ordinary mitigating circumstances.
This is true only if the mitigating
(4) If there are several mitigating circumstance taken into account is
and aggravating circumstances, only an ordinary mitigating
they shall offset against each circumstance. If the mitigating
other. Whatever remains, apply circumstance is privileged, you cannot
the rules. follow the law in so far as fixing the
minimum of the indeterminate
sentence is concerned; otherwise, it maximum without exceeding the

may happen that the maximum of the penalty prescribed by special law for
indeterminate sentence is lower than the crime committed. In the same
its minimum. manner, courts are given discretion to
fix a minimum anywhere within the
In one Supreme Court ruling, it was range of the penalty prescribed by
held that for purposes of applying the special law, as long as it will not be
Indeterminate Sentence Law, the lower than the penalty prescribed.
penalty prescribed by the Revised
Penal Code and not that which may Disqualification may be divided into
be imposed by court. This ruling, three, according to –
however, is obviously erroneous. This
is so because such an interpretation (1) The time committed;
runs contrary to the rule of pro reo,
which provides that the penal laws (2) The penalty imposed; and
should always be construed an
applied in a manner liberal or lenient (3) The offender involved.
to the offender. Therefore, the rule
is, in applying the Indetermiante
Sentence Law, it is that penalty The Indeterminate Sentence Law shall
arrived at by the court after applying not apply to:
the mitigating and aggravating
circumstances that should be the (1) Persons convicted of offense
basis. punishable with death penalty
or life imprisonment;
Crimes punished under special law
carry only one penalty; there are no (2) Persons convicted of treason,
degree or periods. Moreover, crimes conspiracy or proposal to
under special law do not consider commit treason;
mitigating or aggravating
circumstance present in the (3) Persons convicted of misprision
commission of the crime. So in the of treason, rebellion, sedition,
case of statutory offense, no espionage;
mitigating and no aggravating
circumstances will be taken into (4) Persons convicted of piracy;
account. Just the same, courts are
required in imposing the penalty upon (5) Persons who are habitual
the offender to fix a minimum that delinquents;
the convict should serve, and to set a
maximum as the limit of that (6) Persons who shall have escaped
sentence. Under the law, when the from confinement or evaded
crime is punished under a special law, sentence;
the court may fix any penalty as the
(7) Those who have been granted not exceed six years of imprisonment
conditional pardon by the Chief are those qualified for probation. If
Executive and shall have the penalty is six years plus one day,
violated the term thereto; he is no longer qualified for probation.
(8) Those whose maximum term of If the offender was convicted of

imprisonment does not exceed several offenses which were tried
one year, but not to those jointly and one decision was rendered
already sentenced by final where multiple sentences imposed
judgment at the time of the several prison terms as penalty, the
approval of Indeterminate basis for determining whether the
Sentence Law. penalty disqualifies the offender from
probation or not is the term of the
Although the penalty prescribed for individual imprisonment and not the
the felony committed is death or totality of all the prison terms
reclusion perpetua, if after imposed in the decision. So even if
considering the attendant the prison term would sum up to
circumstances, the imposable penalty more than six years, if none of the
is reclusion temporal or less, the individual penalties exceeds six years,
Indeterminate Sentence Law applies the offender is not disqualified by
(People v. Cempron, 187 SCRA such penalty from applying for
278). probation.
On the other hand, without regard to

Presidential Decree No. 968 the penalty, those who are convicted
(Probation Law) of subversion or any crime against
the public order are not qualified for
Among the different grounds of partial probation. So know the crimes under
extinction of criminal liability, the Title III, Book 2 of the Revised Penal
most important is probation. Code. Among these crimes is Alarms
Probation is a manner of disposing of and Scandals, the penalty of which is
an accused who have been convicted only arresto menor or a fine. Under
by a trial court by placing him under the amendment to the Probation Law,
supervision of a probation officer, those convicted of a crime against
under such terms and conditions that public order regardless of the penalty
the court may fix. This may be are not qualified for probation.
availed of before the convict begins
serving sentence by final judgment May a recidivist be given the benefit
and provided that he did not appeal of Probation Law?
anymore from conviction.
As a general rule, no.
Without regard to the nature of the
crime, only those whose penalty does
Exception: If the earlier conviction Probation, even though he may

refers to a crime the penalty of which thereafter withdraw his appeal.
does not exceed 30 days
imprisonment or a fine of not more If the offender would appeal the
than P200.00, such convict is not conviction of the trial court and the
disqualified of the benefit of appellate court reduced the penalty to
probation. So even if he would be say, less than six years, that convict
convicted subsequently of a crime can still file an application for
embraced in the same title of the probation, because the earliest
Revised Penal Code as that of the opportunity for him to avail of
earlier conviction, he is not probation came only after judgment
disqualified from probation provided by the appellate court.
that the penalty of the current crime
committed does not go beyond six Whether a convict who is otherwise
years and the nature of the crime qualified for probation may be give
committed by him is not against the benefit of probation or not, the
public order, national security or courts are always required to conduct
subversion. a hearing. If the court denied the
application for probation without the
Although a person may be eligible for benefit of the hearing, where as the
probation, the moment he perfects an applicant is not disqualified under the
appeal from the judgment of provision of the Probation Law, but
conviction, he cannot avail of only based on the report of the
probation anymore. So the benefit of probation officer, the denial is
probation must be invoked at the correctible by certiorari, because it is
earliest instance after conviction. He an act of the court in excess of
should not wait up to the time when jurisdiction or without jurisdiction, the
he interposes an appeal or the order denying the application
sentence has become final and therefore is null and void.
executory. The idea is that probation
has to be invoked at the earliest Probation is intended to promote the
opportunity. correction and rehabilitation of an
offender by providing him with
An application for probation is individualized treatment; to provide
exclusively within the jurisdiction of an opportunity for the reformation of
the trial court that renders the a penitent offender which might be
judgment. For the offender to apply less probable if he were to serve a
in such court, he should not appeal prison sentence; to prevent the
such judgment. commission of offenses; to decongest
our jails; and to save the government
Once he appeals, regardless of the much needed finance for maintaining
purpose of the appeal, he will be convicts in jail
disqualified from applying for
Probation is only a privilege. So even Persons who have been granted of

if the offender may not be disqualified the benefit of probation cannot avail
of probation, yet the court believes thereof for the second time.
that because of the crime committed Probation is only available once and
it was not advisable to give probation this may be availed only where the
because it would depreciate the effect convict starts serving sentence and
of the crime, the court may refuse or provided he has not perfected an
deny an application for probation. appeal. If the convict perfected an
appeal, he forfeits his right to apply
Generally, the courts do not grant an for probation. As far as offenders who
application for probation for violation are under preventive imprisonment,
of the Dangerous Drugs Law, because that because a crime committed is not
of the prevalence of the crime. So it bailable or the crime committed,
is not along the purpose of probation although bailable, they cannot afford
to grant the convict the benefit to put up a bail, upon promulgation of
thereof, just the individual the sentence, naturally he goes back
rehabilitation of the offender but also to detention, that does not mean that
the best interest of the society and they already start serving the
the community where the convict sentence even after promulgation of
would be staying, if he would be the sentence, sentence will only
released on probation. To allow him become final and executory after the
loose may bring about a lack of lapse of the 15-day period, unless the
respect of the members of the convict has waived expressly his right
community to the enforcement of to appeal or otherwise, he has partly
penal law. In such a case, the court started serving sentence and in that
even if the crime is probationable case, the penalty will already be final
may still deny the benefit of and exeuctory, no right to probation
probation. can be applied for.
Consider not only the probationable Probation shall be denied if the court
crime, but also the probationable finds:
penalty. If it were the non-
probationable crime, then regardless (1) That the offender is in need of
of the penalty, the convict cannot correctional treatment that can
avail of probation. Generally, the be provided most effectively by
penalty which is not probationable is his commitment to an
any penalty exceeding six years of institution;
imprisonment. Offenses which are
not probationable are those against (2) That there is undue risk that
natural security, those against public during the period of probation
order and those with reference to the offender will commit
subversion. another crime; or
(3) Probation will depreciate the restrictive of the probationer; and (2)
seriousness of the crime. such condition should not be
incompatible with the freedom of
The probation law imposes two kinds conscience of the probationer
of conditions:
(1) Mandatory conditions; and EXTINCTION OF CRIMINAL

LIABILITY
(2) Discretionary conditions.
Always provide two classifications
when answering this question.
Mandatory conditions:
Criminal liability is totally
(1) The convict must report to the extinguished as follows:
Probation Officer (PO)
designated in the court order (1) By the death of the convict as
approving his application for to personal penalties; and as to
Probation within 72 hours from pecuniary penalties, liability
receipt of Notice of such order therefore is extinguished only
approving his application; and when the death of the offender
occurs before final judgment
(2) The convict, as a probationer,
must report to the PO at least (2) By service of sentence;
once a month during the period
of probation unless sooner (3) By amnesty which completely
required by the PO. extinguished the penalty and all
its effects;
These conditions being mandatory,
the moment any of these is violate, (4) By absolute pardon;
the probation is cancelled.
(5) By prescription of the crime;
Discretionary conditions: (6) By prescription of the penalty;
The trial court which approved the (7) By the marriage of the offended
application for probation may impose women as in the crimes of rape,
any condition which may be abduction, seduction and acts of
constructive to the correction of the lasciviousness.
offender, provided the same would
not violate the constitutional rights of Criminal liability is partially
the offender and subject to this two extinguished as follows:
restrictions: (1) the conditions
imposed should not be unduly (1) By conditional pardon;
offender dies, the case on appeal will

(2) By commutation of sentence; be dismissed. The offended party
may file a separate civil action under
(3) For good conduct, allowances the Civil Code if any other basis for
which the culprit may earn recovery of civil liability exists as
while he is serving sentence; provided under Art 1157 Civil Code.
(People v. Bayotas, decided on
(4) Parole; and September 2, 1994)
(5) Probation.
Amnesty and pardon
Total extinction of criminal The effects of amnesty as well as

liability absolute pardon are not the same.
Amnesty erases not only the
Among the grounds for total conviction but also the crime itself.
extinction as well as those for partial So that if an offender was convicted
extinction, you cannot find among for rebellion and he qualified for
them the election to public office. In amnesty, and so he was given an
one case, a public official was charged amnesty, then years later he rebelled
before the Sandiganbayan for again and convicted, is he a
violation of Anti-Graft and Corrupt recidivist? No. Because the amnesty
Practices Act. During the ensuing granted to him erased not only the
election, he was nevertheless re- conviction but also the effects of the
elected by the constituents, one of conviction itself.
the defenses raised was that of
condonation of the crime by his Suppose, instead of amnesty, what
constituents, that his constituents was given was absolute pardon, then
have pardoned him. The Supreme years later, the offended was again
Court ruled that the re-election to captured and charged for rebellion, he
public office is not one of the grounds was convicted, is he a recidivist?
by which criminal liability is Yes. Pardon, although absolute does
extinguished. This is only true to not erase the effects of conviction.
administrative cases but not criminal Pardon only excuses the convict from
cases. serving the sentence. There is an
exception to this and that is when the
pardon was granted when the convict
Death of the offender had already served the sentence such
that there is no more service of
Where the offender dies before final sentence to be executed then the
judgment, his death extinguishes pardon shall be understood as
both his criminal and civil liabilities. intended to erase the effects of the
So while a case is on appeal, the conviction.
name was included in the list of all

So if the convict has already served those granted absolute pardon,
the sentence and in spite of that he pardon shall relieve him of the effects
was given a pardon that pardon will of the crime, and therefore even if he
cover the effects of the crime and commits theft again, he shall not be
therefore, if he will be subsequently considered a recidivist.
convicted for a felony embracing the
same title as that crime, he cannot be In Monsanto v. Factoran, Jr., 170
considered a recidivist, because the SCRA 191, it was held that absolute
pardon wipes out the effects of the pardon does not ipso facto entitle the
crime. convict to reinstatement to the public
office forfeited by reason of his
But if he was serving sentence when conviction. Although pardon restores
he was pardoned, that pardon will not his eligibility for appointment to that
wipe out the effects of the crime, office, the pardoned convict must
unless the language of the pardon reapply for the new appointment
absolutely relieve the offender of all .
the effects thereof. Considering that Pardon becomes valid only when
recidivism does not prescribe, no there is a final judgment. If given
matter how long ago was the first before this, it is premature and hence
conviction, he shall still be a void. There is no such thing as a
recidivist. premature amnesty, because it does
not require a final judgment; it may
Illustrations: be given before final judgment or
after it.
When the crime carries with it moral
turpitude, the offender even if
granted pardon shall still remain Prescription of crime and prescription
disqualified from those falling in cases of the penalty
where moral turpitude is a bar.
Prescription of the crime begins, as a
Pedro was prosecuted and convicted general rule on the day the crime was
of the crime of robbery and was committed, unless the crime was
sentenced to six years imprisonment concealed, not public, in which case,
or prision correccional. After serving the prescription thereof would only
sentence for three years, he was commence from the time the offended
granted absolute pardon. Ten years party or the government learns of the
later, Pedro was again prosecuted and commission of the crime.
convicted of the crime of theft, a
crime embraced in the same title, this “Commission of the crime is public” --
time he shall be a recidivist. On the This does not mean alone that the
other hand, if he has served all six crime was within public knowledge or
years of the first sentence, and his committed in public.
jurisdiction to continue, if legally, the

Illustration: crime has indeed prescribed.
In the crime of falsification of a The prevailing rule now is,

document that was registered in the prescription of the crime is not
proper registry of the government like waivable, the earlier jurisprudence to
the Registry of Property or the the contrary had already been
Registry of Deeds of the Civil registry, abrogated or overruled. Moreover,
the falsification is deemed public from for purposes of prescription, the
the time the falsified document was period for filing a complaint or
registered or recorded in such public information may not be extended at
office so even though, the offended all, even though the last day such
party may not really know of the prescriptive period falls on a holiday
falsification, the prescriptive period of or a Sunday.
the crime shall already run from the
moment the falsified document was For instance, light felony prescribes in
recorded in the public registry. So in 60 days or two months. If the 60 th
the case where a deed of sale of a day falls on a Sunday, the filing of the
parcel of land which was falsified was complaint on the succeeding Monday
recorded in the corresponding is already fatal to the prosecution of
Registry of Property, the owner of the the crime because the crime has
land came to know of the falsified already prescribed.
transaction only after 10 years, so he
brought the criminal action only then. The rules on Criminal Procedure for
The Supreme Court ruled that the purposes of prescription is that the
crime has already prescribed. From filing of the complaint even at the
the moment the falsified document is public prosecutor’s office suspends
registered in the Registry of Property, the running of the prescriptive period,
the prescriptive period already but not the filing with the barangay.
commenced to run. So the earlier rulings to the contrary
are already abrogated by express
When a crime prescribes, the State provision of the Revised Rules on
loses the right to prosecute the Criminal Procedure.
offender, hence, even though the
offender may not have filed a motion The prescription of the crime is
to quash on this ground the trial interrupted or suspended –
court, but after conviction and during
the appeal he learned that at the time (1) When a complaint is filed in a
the case was filed, the crime has proper barangay for conciliation
already prescribed, such accused can or mediation as required by
raise the question of prescription even Chapter 7, Local Government
for the first time on appeal, and the Code, but the suspension of the
appellate court shall have no prescriptive period is good only
for 60 days. After which the brought to Muntinlupa, booked there,

prescription will resume to run, placed inside the cell and thereafter
whether the conciliation or he escapes.
mediation is terminated for not;
Whether it is prescription of crime or
(2) When criminal case is filed in prescription of penalty, if the subject
the prosecutor’s office, the could leave the Philippines and go to
prescription of the crime is a country with whom the Philippines
suspended until the accused is has no extradition treaty, the
convicted or the proceeding is prescriptive period of the crime or
terminated for a cause not penalty shall remain suspended
attributable to the accused. whenever he is out of the country.
But where the crime is subject to When the offender leaves for a
Summary Procedure, the prescription country to which the Philippines has
of the crime will be suspended only an extradition treaty, the running of
when the information is already filed the prescriptive period will go on even
with the trial court. It is not the filing if the offender leaves Philippine
of the complaint, but the filing of the territory for that country. Presently
information in the trial which will the Philippines has an extradition
suspend the prescription of the crime. treaty with Taiwan, Indonesia,
Canada, Australia, USA and
On the prescription of the penalty, the Switzerland. So if the offender goes
period will only commence to run to any of these countries, the
when the convict has begun to serve prescriptive period still continues to
the sentence. Actually, the penalty run.
will prescribe from the moment the
convict evades the service of the In the case of the prescription of the
sentence. So if an accused was penalty, the moment the convict
convicted in the trial court, and the commits another crime while he is
conviction becomes final and fugitive from justice, prescriptive
executory, so this fellow was arrested period of the penalty shall be
to serve the sentence, on the way to suspended and shall not run in the
the penitentiary, the vehicle carrying meantime. The crime committed
him collided with another vehicle and does not include the initial evasion of
overturned, thus enabling the service of sentence that the convict
prisoner to escape, no matter how must perform before the penalty shall
long such convict has been a fugitive begin to prescribe, so that the initial
from justice, the penalty imposed by crime of evasion of service of
the trial court will never prescribe sentence does not suspend the
because he has not yet commenced prescription of penalty, it is the
the service of his sentence. For the commission of other crime, after the
penalty to prescribe, he must be
convict has evaded the service of offended woman, although already his
penalty that will suspend such period. wife can still prosecute him again,
although the marriage remains a valid
marriage. Do not think that the
Marriage marriage is avoided or annulled. The
marriage still subsists although the
In the case of marriage, do not say offended woman may re-file the
that it is applicable for the crimes complaint. The Supreme Court ruled
under Article 344. It is only true in that marriage contemplated must be
the crimes of rape, abduction, a real marriage and not one entered
seduction and acts of lasciviousness. to and not just to evade punishment
Do not say that it is applicable to for the crime committed because the
private crimes because the term offender will be compounding the
includes adultery and concubinage. wrong he has committed.
Marriages in these cases may even
compound the crime of adultery or
concubinage. It is only in the crimes Partial extinction of criminal
of rape, abduction, seduction and acts liability
of lasciviousness that the marriage by
the offender with the offended woman
shall extinguish civil liability, not only Good conduct allowance
criminal liability of the principal who
marries the offended woman, but also This includes the allowance for loyalty
that of the accomplice and accessory, under Article 98, in relation to Article
if there are any. 158. A convict who escapes the place
of confinement on the occasion of
Co-principals who did not themselves disorder resulting from a
directly participate in the execution of conflagration, earthquake or similar
the crime but who only cooperated, catastrophe or during a mutiny in
will also benefit from such marriage, which he has not participated and he
but not when such co-principal returned within 48 hours after the
himself took direct part in the proclamation that the calamity had
execution of the crime. already passed, such convict shall be
given credit of 1/5 of the original
Marriage as a ground for sentence from that allowance for his
extinguishing civil liability must have loyalty of coming back. Those who
been contracted in good faith. The did not leave the penitentiary under
offender who marries the offended such circumstances do not get such
woman must be sincere in the allowance for loyalty. Article 158
marriage and therefore must actually refers only to those who leave and
perform the duties of a husband after return.
the marriage, otherwise,
notwithstanding such marriage, the
Parole For example, if a third party bought a

property in a public auction conducted
This correspondingly extinguishes by the sheriff levied on the property
service of sentence up to the of a judgment creditor for an
maximum of the indeterminate obligation, the buyer of the property
sentence. This is the partial at such execution sale is protected by
extinction referred to, so that if the law. The offended party cannot
convict was never given parole, no divest him thereof. So the offended
partial extinction. party may only resort to reparation of
the damage done from the offender.
CIVIL LIABILITY OF THE Some believed that this civil liability is

OFFENDER true only in crimes against property,
this is not correct. Regardless of the
crime committed, if the property is
Civil liability of the offender falls illegally taken from the offended party
under three categories: during the commission of the crime,
the court may direct the offender to
(1) Restitution and restoration; restore or restitute such property to
the offended party. It can only be
(2) Reparation of the damage done if the property is brought within
caused; and the jurisdiction of that court.
(3) Indemnification of consequential For example, in a case where the

damages. offender committed rape, during the
rape, the offender got on of the
earrings of the victim. When
Restitution or restoration apprehended, the offender was
prosecuted for rape and theft. When
Restitution or restoration presupposes the offender was asked why he got on
that the offended party was divested of the earrings of the victim, the
of property, and such property must offender disclosed that he took one of
be returned. If the property is in the the earrings in order to have a
hands of a third party, the same shall souvenir of the sexual intercourse.
nevertheless be taken away from him Supreme Court ruled that the crime
and restored to the offended party, committed is not theft and rape but
even though such third party may be rape and unjust vexation for the
a holder for value and a buyer in good taking of the earring. The latter
faith of the property, except when crime is not a crime against property,
such third party buys the property this is a crime against personal
from a public sale where the law security and liberty under Title IX of
protects the buyer. Book II of the RPC. And yet, the
offender was required to restore or
restitute the earring to the offended offended party is allowed to enrich

woman. himself at the expense of the
offender. So there will be a
Property will have to be restored to corresponding depreciation and the
the offended party even this would offended party may even be required
require the taking of the property to pay something just to cover the
from a third person. Where personal difference of the value of what was
property was divested from the restored to him.
offended party pursuant to the
commission of the crime, the one who The obligation of the offender
took the same or accepted the same transcends to his heirs, even if the
would be doing so without the benefit offender dies, provided he died after
of the just title. So even if the judgment became final, the heirs shall
property may have been bought by assume the burden of the civil
the third person, the same may be liability, but this is only to the extent
taken from him and restored to the that they inherit property from the
offended party without an obligation deceased, if they do not inherit, they
on the part of the offended party to cannot inherit the obligations.
pay him whatever he paid.
The right of the offended party
The right to recover what he has paid transcends to heirs upon death. The
will be against the offender who sold heirs of the offended party step into
it to him. On the other hand, if the the shoes of the latter to demand civil
crime was theft or robbery, the one liability from the offender.
who received the personal property
becomes a fence, he is not only
required to restitute the personal Reparation of the damage caused
property but he incurs criminal
liability in violation of the Anti-Fencing In case of human life, reparation of
Law. the damage cause is basically
P50,000.00 value of human life,
If the property cannot be restituted exclusive of other forms of damages.
anymore, then the damage must be This P50,000.00 may also increase
repaired, requiring the offender to whether such life was lost through
pay the value thereof, as determined intentional felony or criminal
by the court. That value includes the negligence, whether the result of dolo
sentimental value to the offended or culpa. Also in the crime of rape,
party, not only the replacement cost. the damages awarded to the offended
In most cases, the sentimental value woman is generally P30,000.00 for
is higher than the replacement value. the damage to her honor. In earlier
But if what would be restored is brand rulings, the amount varied, whether
new, then there will be an allowance the offended woman is younger or a
for depreciation, otherwise, the married woman. Supreme Court
ruled that even if the offended woman an obligation to answer civilly for the
does not adduce evidence or such loss or property of their guests.
damage, court can take judicial notice
of the fact that if a woman was raped, Under Articloe 102, two conditions
she inevitably suffers damages. must be present before liability
Under the Revised Rules on Criminal attaches to the inkeepers,
Procedure, a private prosecutor can tavernkeepers and proprietors:
recover all kinds of damages including
attorney’s fee. The only limitation is (1) The guest must have informed
that the amount and the nature of the the management in advance of
damages should be specified. The his having brought to the
present procedural law does not allow premises certain valuables aside
a blanket recovery of damages. Each from the usual personal
kind of damages must be specified belongings of the guest; and
and the amount duly proven.
(2) The guest must have followed
the rules and regulations
Indemnification of consequential prescribed by the management
damages of such inn, tavern, or similar
establishment regarding the
Indemnification of consequential safekeeping of said valuables.
damages refers to the loss of
earnings, loss of profits. This does The Supreme Court ruled that even
not refer only to consequential though the guest did not obey the
damages suffered by the offended rules and regulations prescribed by
party; this also includes consequential the management for safekeeping of
damages to third party who also the valuables, this does not absolve
suffer because of the commission of management from the subsidiary civil
the crime. liability. Non-compliance with such
rules and regulations but the guests
The offender carnapped a bridal car will only be regarded as contributory
while the newly-weds were inside the negligence, but it won’t absolve the
church. Since the car was only management from civil liability.
rented, consequential damage not
only to the newly-weds but also to the Liability specially attaches when the
entity which rented the car to them. management is found to have violated
any law or ordinance, rule or
Most importantly, refer to the persons regulation governing such
who are civilly liable under Articles establishment.
102 and 103. This pertains to the
owner, proprietor of hotels, inns, Even if the crime is robbery with
taverns and similar establishments, violence against or intimidation of
persons or committed by the
inkeeper’s employees, management employee, it is enough that the writ of

will be liable, otherwise, not liable execution is returned unsatisfied.
because there is duress from the There is no denial of due process of
offender, liable only for theft and law because the liability of the
force upon things. employer is subsidiary and not
primary. He will only be liable if his
Under Article 103, the subsidiary employee does not have the property
liability of an employer or master for to pay his civil liability, since it is the
the crime committed by his employee law itself that provides that such
or servant may attach only when the subsidiary liability exists and
following requisites concur: ignorance of the law is not an excuse.
(1) The employer must be engaged Civil liability of the offender is

in business or in trade or extinguished in the same manner as
industry while the accused was civil obligation is extinguished but this
his employee; is not absolutely true. Under civil
law, a civil obligation is extinguished
(2) At the time the crime was upon loss of the thing due when the
committed, the employee- thing involved is specific. This is not
employerr relationship must be a ground applicable to extinction of
existing between the two; civil liability in criminal case if the
thing due is lost, the offender shall
(3) The employee must have been repair the damages caused.
found guilty of the crime
charged and accordingly held When there are several offenders, the
civilly liable; court in the exercise of its discretion
shall determine what shall be the
(4) The writ of execution for the share of each offender depending
satisfaction of the civil liability upon the degree of participation – as
was returned unsatisfied principal, accomplice or accessory. If
because the accused-employee within each class of offender, there
does not have enough property are more of them, such as more than
to pay the civil liability. one principal or more than one
accomplice or accessory, the liability
When these requisites concur, the in each class of offender shall be
employer will be subsidiarily civilly subsidiary. Anyone of the may be
liable for the full amount that his required to pay the civil liability
employee was adjudged civilly liable. pertaining to such offender without
It is already settled in jurisprudence prejudice to recovery from those
that there is no need to file a civil whose share have been paid by
action against the employer in order another.
to enforce the subsidiary civil liability
for the crime committed by his
If all the principals are insolvent, the chores. The employer, master,
obligation shall devolve upon the teacher is subsidiarily liable civilly,
accomplice(s) or accessory(s). But while the offender is primarily liable.
whoever pays shall have the right of
covering the share of the obligation In case the accomplice and the
from those who did not pay but are principal cannot pay, the liability of
civilly liable. those subsidiarily liable is absolute.
To relate with Article 38, when there

is an order or preference of pecuniary COMPLEX CRIME
(monetary) liability, therefore,
restitution is not included here. Philosophy behind plural crimes: The
treatment of plural crimes as one is to
There is not subsidiary penalty for be lenient to the offender, who,
non-payment of civil liability. instead of being made to suffer
distinct penalties for every resulting
Subsidiary civil liability is imposed in crime is made to suffer one penalty
the following: only, although it is the penalty for the
most serious one and is in the
(1) In case of a felony committed maximum period. Purpose is in the
under the compulsion of an pursuance of the rule of pro reo.
irresistible force. The person
who employed the irresistible If be complexing the crime, the
force is subsidiarily liable; penalty would turn out to be higher,
do not complex anymore.
(2) In case of a felony committed
under an impulse of an equal or Example: Murder and theft (killed
greater injury. The person who with treachery, then stole the right).
generated such an impulse is Penalty: If complex – Reclusion
subsidiarily liable. temporal maximum to death.
If treated individually – Reclusion
The owners of taverns, inns, motels, temporal to Reclusion Perpetua.
hotels, where the crime is committed
within their establishment due to Complex crime is not just a matter of
noncompliance with general police penalty, but of substance under the
regulations, if the offender who is Revised Penal Code.
primarily liable cannot pay, the
proprietor, or owner is subsidiarily Plurality of crimes may be in the form
liable. of:
Felonies committed by employees, (1) Compound crime;

pupils, servants in the course of their
employment, schooling or household (2) Complex crime; and
robbery with rape, and rape with

(3) Composite crime. homicide.
The compound crime and the complex

A compound crime is one where a crime are treated in Article 48 of the
single act produces two or more Revised Penal Code. But in such
crimes. article, a compound crime is also
designated as a complex crime, but
A complex crime strictly speaking is “complex crimes” are limited only to a
one where the offender has to commit situation where the resulting felonies
an offense as a means for the are grave and/or less grave.
commission of another offense. It is
said that the offense is committed as Whereas in a compound crime, there
a necessary means to commit the is no limit as to the gravity of the
other offense. “Necessary” should not resulting crimes as long as a single
be understood as indispensable, act brings about two or more crimes.
otherwise, it shall be considered Strictly speaking, compound crimes
absorbed and not giving rise to a are not limited to grave or less grave
complex crime. felonies but covers all single act that
results in two or more crimes.
A composite crime is one in which
substance is made up of more than Illustration:
one crime, but which in the eyes of
the law is only a single indivisible A person threw a hand grenade and
offense. This is also known as special the people started scampering. When
complex crime. Examples are the hand grenade exploded, no on
robbery with homicide, robbery with was seriously wounded all were mere
rape, rape with homicide. These are wounded. It was held that this is a
crimes which in the eyes of the law compound crime, although the
are regarded only as a single resulting felonies are only slight.
indivisible offense.
Illustration of a situation where the
term “necessary” in complex crime
Composite Crime/Special Complex should not be understood as
Crime indispensable:
This is one which in substance is Abetting committed during the

made up of more than one crime but encounter between rebels and
which in the eyes of the law is only a government troops such that the
single indivisible offense. This is also homicide committed cannot be
known as a special complex crime. complexed with rebellion. This is
Examples are robbery with homicide, because they are indispensable part
of rebellion. (Caveat: Ortega says
rebellion can be complexed with criminal impulse which brought about

common crimes in discussion on the commission of the crime, the
Rebellion) offender should be penalized only
once.
The complex crime lies actually in the
first form under Article 148. There are in fact cases decided by the
Supreme Court where the offender
The first form of the complex crime is has performed a series of acts but the
actually a compound crime, is one acts appeared to be impelled by one
where a single act constitutes two or and the same impulse, the ruling is
more grave and/or less grave that a complex crime is committed.
felonies. The basis in complexing or In this case it is not the singleness of
compounding the crime is the act. So the act but the singleness of the
that when an offender performed impulse that has been considered.
more than one act, although similar, There are cases where the Supreme
if they result in separate crimes, there Court held that the crime committed
is no complex crime at all, instead, is complex even though the offender
the offender shall be prosecuted for performed not a single act but a
as many crimes as are committed series of acts. The only reason is that
under separate information. the series of acts are impelled by a
single criminal impulse.
When the single act brings about two
or more crimes, the offender is
punished with only one penalty, CONTINUED AND CONTINUING
although in the maximum period, CRIMES
because he acted only with single
criminal impulse. The presumption is In criminal law, when a series of acts
that, since there is only one act are perpetrated in pursuance of a
formed, it follows that there is only single criminal impulse, there is what
one criminal impulse and correctly, is called a continued crime. In
only one penalty should be imposed. criminal procedure for purposes of
venue, this is referred to as a
Conversely, when there are several continuing crime.
acts performed, the assumption is
that each act is impelled by a distinct The term “continuing crimes” as
criminal impulse and for ever criminal sometimes used in lieu of the term
impulse, a separate penalty. “continued crimes”, however,
However, it may happen that the although both terms are analogous,
offender is impelled only by a single they are not really used with the
criminal impulse in committing a same import. “Continuing crime” is
series of acts that brought about the term used in criminal procedure
more than one crime, considering that to denote that a certain crime may be
Criminal Law, if there is only one prosecuted and tried not only before
the court of the place where it was Muslims were tied, one of them
originally committed or began, but protested, he did not want to be
also before the court of the place included among those who were tied
where the crime was continued. becase he was a Hajji, so the Hajji
Hence, the term “continuing crime” is remonstrated and there was
used in criminal procedure when any commotion. At the height of the
of the material ingredients of the commotion, Lawas ordered his men to
crime was committed in different fire, and the soldiers mechanically
places. fired. Eleven were killed and several
others were wounded. The question
A “continued crime” is one where the of whether the constabulary soldiers
offender performs a series of acts should be prosecuted for the killing of
violating one and the same penal each under a separate information
provision committed at the same has reached the Supreme Court. The
place and about the same time for the Supreme Court ruled that the accused
same criminal purpose, regardless of should be prosecuted only in one
a series of acts done, it is regarded in information, because a complex crime
law as one. of multiple homicide was committed
by them.
In People v. de Leon, where the
accused took five roosters from one In another case, a band of robbers
and the same chicken coop, although, came across a compound where a
the roosters were owned by different sugar mill is located. The workers of
persons, it was held that there is only said mill have their quarters within
one crime of theft committed, the compound. The band of robbers
because the accused acted out of a ransacked the different quarters
single criminal impulse only. therein. It was held that there is only
However performing a series of acts one crime committed – multiple
but this is one and the same intent robbery, not because of Article 48 but
Supreme Court ruled that only one because this is a continued crime.
crime is committed under one When the robbers entered the
information. compound, they were moved by a
single criminal intent. Not because
In People v. Lawas, the accused there were several quarters robbed.
constabulary soldiers were ordered to This becomes a complex crime.
march with several muslims from one
barrio to another place. These The definition in Article 48 is not
soldiers feared that on the way, some honored because the accused did not
of the Muslims may escape. So perform a single act. There were a
Lawas ordered the men to tie the series of acts, but the decision in the
Muslims by the hand connecting one Lawas case is correct. The confusion
with the other, so no one would run lies in this. While Article 48 speaks of
away. When the hands of the a complex crime where a single act
constitutes two or more grave or less for the complex crime of multiple
grave offenses, even those cases homicide with multiple frustrated
when the act is not a single but a homicide. There is a complex crime
series of acts resulting to two or more not only when there is a single act but
grave and less grave felonies, the a series of acts. It is correct that
Supreme Court considered this as a when the offender acted in
complex crime when the act is the conspiracy, this crime is considered as
product of one single criminal one and prosecuted under one
impulse. information. Although in this case,
the offenders did not only kill one
If confronted with a problem, use the person but killed different persons, so
standard or condition that it refers not it is clear that in killing of one victim
only to the singleness of the act which or the killing of another victim,
brought two or more grave and/less another act out of this is done
grave felonies. The Supreme Court simultaneously. Supreme Court
has extended this class of complex considered this as complex. Although
crime to those cases when the the killings did not result from one
offender performed not a single act single act.
but a series of acts as long as it is the
product of a single criminal impulse. In criminal procedure, it is prohibited
to charge more than one offense in an
You cannot find an article in the information, except when the crimes
Revised Penal Code with respect to in one information constitute a
the continued crime or continuing complex crime or a special complex
crime. The nearest article is Article crime.
48. Such situation is also brought
under the operation of Article 48. So whenever the Supreme Court
concludes that the criminal should be
In People v. Garcia, the accused punished only once, because they
were convicts who were members of a acted in conspiracy or under the same
certain gang and they conspired to kill criminal impulse, it is necessary to
the other gang. Some of the accused embody these crimes under one
killed their victims in one place within single information. It is necessary to
the same penitentiary, some killed consider them as complex crimes
the others in another place within the even if the essence of the crime does
same penitentiary. The Supreme not fit the definition of Art 48,
Court ruled that all accused should be because there is no other provision in
punished under one information the RPC.
because they acted in conspiracy.
The act of one is the act of all. Duplicity of offenses, in order not to
Because there were several victims violate this rule, it must be called a
killed and some were mortally complex crime.
wounded, the accused should be held
In earlier rulings on abduction with Jose that the four men who abducted
rape, if several offenders abducted and abused the offended women were
the woman and abused her, there is held liable for one crime – one count
multiple rape. The offenders are to or forcible abudction with rape and
be convicted of one count of rape and distinct charges for rape for the other
separately charged of the other rapes. rapes committed by them.
In People v. Jose, there were four In People v. Bulaong, the Supreme

participants here. They abducted the Court adopted the dissenting opinion
woman, after which, the four took of Justice Aquino in People v.
turns in abusing her. It was held that Pabasa, that when several persons
each one of the four became liable abducted a woman and abused her,
not only for his own rape but also for regardless of the number of rapes
those committed by the others. Each committed, there should only be one
of the four offenders was convicted of complex crime of forcible abduction
four rapes. In the eyes of the law, with rape. The rapes committed were
each committed four crimes of rape. in the nature of a continued crime
One of the four rapes committed by characterized by the same lewd
one of them was complexed with the design which is an essential element
crime of abduction. The other three in the crime of forcible abduction.
rapes are distinct counts of rape. The
three rapes are not necessary to The abuse amounting to rape is
commit the other rapes. Therefore, complexed with forcible abduction
separate complaints/information. because the abduction was already
consummated when the victim was
In People v. Pabasa, the Supreme raped. The forcible abduction must
Court through Justice Aquino ruled be complexed therewith. But the
that there is only one count of forcible multiple rapes should be considered
abduction with rape committed by the only as one because they are in the
offenders who abducted the two nature of a continued crime.
women and abused them several
times. This was only a dissenting Note: This is a dangerous view
opinion of Justice Aquino, that there because the abductors will commit as
could be only one complex crimeof much rape as they can, after all, only
abduction with rape, regardless of the one complex crime of rape would
number of rapes committed because arise.
all the rapes are but committed out of
one and the same lewd design which In adultery, each intercourse
impelled the offender to abduct the constitutes one crime. Apparently,
victim. the singleness of the act is not
considered a single crime. Each
In People v. Bojas, the Supreme intercourse brings with it the danger
Court followed the ruling in People v.
of bringing one stranger in the family complexed with the other felonies
of the husband. because that would be a blatant
violation of Article 48, instead the
Article 48 also applies in cases when Supreme Court stated that an
out of a single act of negligence or additional penalty should be imposed
imprudence, two or more grave or for the light felony. This would mean
less grave felonies resulted, although two penalties to be imposed, one for
only the first part thereof (compound the complex crime and one for the
crime). The second part of Article 48 light felony. It cannot separate the
does not apply, referring to the light felony because it appears that
complex crime proper because this the culpa is crime itself and you
applies or refers only to a deliberate cannot split the crime.
commission of one offense to commit
another offense. Applying the concept of the
“continued crime”, the following cases
However, a light felony may result have been treated as constituting one
from criminal negligence or crime only:
imprudence, together with other
grave or less grave felonies resulting (1) The theft of 13 cows belonging
therefrom and the Supreme Court to two different persons
held that all felonies resulting from committed by the accused at
criminal negligence should be made the same place and period of
subject of one information only. The time (People v. Tumlos, 67
reason being that, there is only one Phil. 320);
information and prosecution only.
Otherwise, it would be tantamount to (2) The theft of six roosters
splitting the criminal negligence belonging to two different
similar to splitting a cause of action owners from the same coop and
which is prohibited in civil cases. at the same period of time
(People v. Jaranillo);
Although under Article 48, a light
felony should not be included in a (3) The illegal charging of fees for
complex crime, yet by virtue of this service rendered by a lawyer
ruling of the Supreme Court, the light every time he collects veteran’s
felony shall be included in the same benefits on behalf of a client
information charging the offender who agreed that attorney’s fees
with grave and/or less grave felonies shall be paid out of such
resulting from the negligence of benefits (People v. Sabbun,
reckless imprudence and this runs 10 SCAR 156). The collections
counter to the provision of Article 48. of legal fees were impelled by
So while the Supreme Court ruled the same motive, that of
that the light felony resulting from the collecting fees for services
same criminal negligence should be rendered, and all acts of
collection were made under the

same criminal impulse. Also abandoned is the doctrine that
the government has the discretion to
On the other hand, the Supreme prosecute the accused for one offense
Court declined to apply the concept in or for as many distinct offenses as
the following cases: there are victims (Santiago v. Justice
Garchitorena, decided on December
(1) Two Estafa cases, one which 2, 1993). Here, the accused was
was committed during the charged with performing a single act
period from January 19 to – that of approving the legalization of
December, 1955 and the other aliens not qualified under the law.
from January 1956 to July 1956 The prosecution manifested that they
(People v. Dichupa, 13 Phil would only file one information.
306). Said acts were committed Subsequently, 32 amended
on two different occasions; informations were filed. The Supreme
Court directed the prosecution to
(2) Several malversations consolidate the cases into one offense
committed in May, June and because (1) they were in violation of
July 1936 and falsifications to the same law – Executive Order No.
conceal said offenses committed 324; (2) caused injury to one party
in August and October, 1936. only – the government; and (3) they
The malversations and were done in the same day. The
falsifications were not the result concept of delito continuado has been
of one resolution to embezzle applied to crimes under special laws
and falsify (People v. CIV, 66 since in Article 10, the Revised Penal
Phil. 351); Code shall be supplementary to
special laws, unless the latter
(3) Seventy-five estafa cases provides the contrary.
committed by the conversion by
the agents of collections from
the customers of the employer
made on different dates.
In the theft cases, the trend is to

follow the single larceny doctrine, that
is taking of several things, whether
belonging to the same or different
owners, at the same time and place,
constitutes one larceny only. Many
courts have abandoned the separate
larceny doctrine, under which there
was distinct larceny as to the property
of each victim.

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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 2

CRIMINAL LAW GENERALITY

Criminal law is that branch of Generality of criminal law means that

3. Must not partake of the nature It has no reference to territory.

On the fluvial jurisdiction there is

Under this theory, if a crime is

crime affects the national Acts or omissions will only be subject

Under this theory, if a crime In some textbooks, an exemption is

This is also called irretrospectivity. In Co v. CA, decided on October

principle of prospectivity of statutes Total or absolute, or partial or

Effect of repeal of penal law to (1) If a case is pending in court

If they are not discharged from

applied to him. So whether he

Doctrine of Pro Reo

Consequences if repeal of penal law is Whenever a penal law is to be

punished by reclusion perpetua to though there is no law declaring the

Nullum crimen, nulla poena sine The primary purpose of the

acquitted Magno of violation of Batas

Code of Kalantiao When a committee to draft the

Spanish Codigo Penal During the time of President Manuel

Congress. It was never enacted into Special Laws

Proposed Penal Code of the DIFFERENT PHILOSOPHIES

thought. Man is regarded as a moral This combines both positivist and

consummated; there are no accomplice or accessory to

In crimes punished under the 2. A mayor awarded a

A crimes punished under a special law

As far as jurisdiction or application of

A vessel is considered a Philippine

(1) Intraterritorial – refers to the

In the intraterritorial application of However, there are two situations

A vessel is not registered in the

The most common subject of bar Question & Answer

A consul was to take a

Paragraph 5 of Article 2, use the Punishable by the Revised Penal

This is important because there are

Dolo is deliberate intent otherwise imprudence, lack of foresight or

Question & Answer

Intent is the determination to do a means he is desirous to kill the

(1) In negligence, there is of another coupled with the

The technical term mens rea is Mistake of fact

committed or incurred through dolo or Supreme Court pointed out that

would be no need for Article 365 as a also damage to property in the

when the information charges the

forgiveness in favor of A and on that tetanus brought about by the act of

actual victim are both at the scene of

In Article 49, when the crime In another instance, A thought of

In mistake of identity, if the crime given the benefit of paragraph 3 of

employed, the circumstance of earlier. Is an impossible crime

For example, if A gave B a karate Yes. Before, the act performed

There are two ways of committing 3. A entered a department

Do not confuse an impossible crime No. It was purely accidental

realize that the firearm was empty. status. A thought of killing B so A

act was an impossible crime against

Paragraph 1 refers to a situation When a person is charged in court,

conditions surrounding the authorized to collect taxes, licenses or

In abduction, your desire may lead to Desistance

The spontaneous desistance of the

Illustrations: by his act of trespassing. When A

not possible for him to perform all the

requires the link of two participants. If

The explanation is academic. You will attempted, frustrated or

Questions & Answers (3) The ugliness would not