JUSTIFYING, EXEMPTING, MITIGATING, AGGRAVATING

AND ALTERNATIVE CIRCUMSTANCES

1. Circumstances affecting criminal liability

(a) Justifying circumstances

(b) Exempting circumstances

(c) Absolutory causes

(d) Mitigating circumstances

(e) Aggravating circumstances

(f) Alternative circumstances

A. Justifying Circumstances

2. Justifying circumstances are those where the act of a person is

said to be in accordance with law, so that such person is
deemed not to have transgressed the law and is free from both
criminal and civil liability. [Luis B. Reyes, The Revised Penal
Code, Book One, Nineteenth Edition, 2017, p. 150] There is
generally no civil liability, except in avoidance of greater evil or
injury where the person benefitted is the one civilly liable [REV.
PEN. CODE, art. 11 and 101].

3. There are six (6) justifying circumstances enumerated in Article

11 of the Revised Penal Code, namely:

1. (a) Self-defense;
2.
3. (b) Defense of relative;
4.
5. (c) Defense of stranger;
6.

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7. (d) Avoidance of greater evil or injury;

8.
9. (e) Fulfilment of duty or lawful exercise of a right or office; and
10.
11.(f) Obedience to lawful order of a superior.

4. Victim-survivors who are found by the courts to be suffering

from the battered woman syndrome do not incur any criminal
and civil liability notwithstanding the absence of any of the
elements for justifying circumstances of self-defense under the
Revised Penal Code. As such, the Battered Woman Syndrome is
also considered as a justifying circumstance as long as at least
two cycles of violence, consisting of three phases, are duly
established by the expert testimony of psychologists or
psychiatrists. [REP. ACT NO. 9262 (2004), sec. 26, in relation to
People v. Genosa, 419 SCRA 537 (2002)]

The Battered Woman Syndrome (“BWS”) refers to a scientifically

defined pattern of psychological and behavioral symptoms
found in women living in battering relationships as a result of
cumulative abuse. [REP. ACT NO. 9262 (2004), sec. 3(c)]

5. Self-defense includes defense of one’s person or right and

requires the presence of these three (3) circumstances:

(a) Unlawful aggression;

(b) Reasonable necessity of the means employed to prevent or

repel it; and

(c) Lack of sufficient provocation on the part of the person

defending himself. [REV. PEN. CODE, art. 11(1)]

Defense of relative includes defense of the person or rights of

one’s spouse, ascendants, descendants, or legitimate, natural
or adopted brothers or sisters, or of his/her relatives by affinity
in the same degrees and those by consanguinity within the
fourth civil degree, provided that the first and second requisites

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in self-defense are present and the further requisite, in case the

provocation was given by the person attacked, that the one
making the defense had no part therein. [REV. PEN. CODE, art.
11(2)]

Defense of a stranger also has the same first two requisites and
the third requisite that the person defending be not induced by
revenge, resentment or other evil motive. [REV. PEN. CODE, art.
11(3)]

6. An indispensable requisite of self-defense, defense of relative

and defense of stranger is that the victim must have mounted
an unlawful aggression against the accused. Without such
unlawful aggression, the accused cannot invoke self-defense,
defense of relative or defense of stranger as a justifying
circumstance. [People v. Olarbe, G.R. No. 227421, 23 July
2018] There could likewise be no incomplete self defense,
defense of relative or defense of stranger if there is no unlawful
aggression.

7. Unlawful aggression is of two kinds: (a) actual or material

unlawful aggression; and (b) imminent unlawful aggression.
Actual or material unlawful aggression means an attack with
physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury.
Imminent unlawful aggression means an attack that is
impending or at the point of happening; it must not consist in
a mere threatening attitude, nor must it be merely imaginary,
but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and
making a motion as if to attack). Imminent unlawful aggression
must not be a mere threatening attitude of the victim, such as
pressing his right hand to his hip where a revolver was
holstered, accompanied by an angry countenance, or like
aiming to throw a pot. [People v. Olarbe, G.R. No. 227421, 23
July 2018]

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There can be no self-defense, whether complete or incomplete,

unless the victim had committed unlawful aggression against
the person who resorted to self-defense. Unlawful aggression is
an actual physical assault, or at least a threat to inflict real
imminent injury, upon a person. In case of threat, it must be
offensive and strong, positively showing the wrongful intent to
cause injury -- as in this case. Thus, Suico’s act of aiming a
cocked gun at appellant is sufficient unlawful aggression.
[People v. Catbagan, G.R. Nos. 149430-32, 23 February 2004]

Unlawful aggression is an actual physical assault, or at least a

threat to inflict real imminent injury, upon a person. The test
for the presence of unlawful aggression is whether the victim's
aggression placed in real peril the life or personal safety of the
person defending himself. The danger must not be an imagined
or imaginary threat. Accordingly, the confluence of these
elements of unlawful aggression must be established by the
accused, to wit: (a) there must be a physical or material attack
or assault; (b) the attack or assault must be actual, or at least
imminent; and (c) the attack or assault must be unlawful.

As the second element of unlawful aggression will show, it is of

two kinds: (a) actual or material unlawful aggression; and (b)
imminent unlawful aggression Actual or material unlawful
aggression means an attack with physical force or with a
weapon, an offensive act that positively determines the intent of
the aggressor to cause the injury. Imminent unlawful
aggression means an attack that is impending or at the point of
happening; it must not consist in a mere threatening or
intimidating attitude, nor must it be merely imaginary, but
must be offensive, menacing and positively strong, manifestly
showing the wrongful intent to cause injury (like aiming a
revolver at another with intent to shoot or opening a knife and
making a motion as if to attack). There must be an actual,
sudden, unexpected attack or imminent danger thereof: which
puts the accused's life in real peril. [People v. Reyes, G.R. No.
224498, 11 January 2018]

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8. The requisites for avoidance of greater evil or injury are:

(a) That the evil sought to be avoided actually exists;

(b) That the injury feared be greater than that done to avoid
it; and

(c) That there be no other practical and less harmful means

of preventing it. [REV. PEN. CODE, art. 11(4)]

Unlike the other justifying circumstances, there is civil liability

under this paragraph. Article 101 of the Revised Penal Code
provides that, in cases falling within subdivision 4 of Article 11,
the persons for whose benefit the harm has been prevented
shall be civilly liable in proportion to the benefit which they may
have received. The courts shall determine, in their sound
discretion, the proportionate amount for which each one shall
be liable. In this circumstance, the greater evil should not be
brought about by the negligence or the imprudence of the actor.

9. A person incurs no criminal liability when he acts in the

fulfillment of a duty or in the lawful exercise of a right or office
[REV. PEN. CODE, art. 11(5)], which have two requisites: (a) that
the offender acted in the performance of a duty or in the lawful
exercise of a duty or in the lawful exercise of a right: and (b) that
the injury or offense committed be the necessary consequence
of the due performance of such right or office. [People v. Belbes,
334 SCRA 161 (2000)]

10. People v. Ulep

G.R. No. 132547, 20 September 2000

Buenaventura Wapili went berserk and became violent,

prompting police intervention. Policemen, including accused
SPO1 Ernesto Ulep, saw Wapili armed with a bolo and a rattan
stool. SPO1 Ulep fired a warning shot and told Wapili to put
down his weapons or they would shoot him. But Wapili retorted
"pusila!" ("fire!") and continued advancing towards the police

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officers. When Wapili was only about two (2) to three (3) meters
away from them, SPO1 Ulep shot the victim with his M-16 rifle,
hitting him in various parts of his body. As the victim slumped
to the ground, SPO1 Ulep came closer and pumped another
bullet into his head and literally blew his brains out.

SPO1 Ulep was convicted of murder and sentenced with

the death penalty by the trial court.

Upon automatic review in the Supreme Court, Ulep prayed

for his acquittal mainly on the basis of his claim that the killing
of the victim was in the course of the performance of his official
duty as a police officer. He also raised self-defense.

The Supreme Court rejected the defense of fulfillment of

duty after finding that its second requisite is lacking. However,
it convicted Ulep only of homicide because treachery was not
proved.

Before the justifying circumstance of fulfillment of a duty

under Art. 11, par. 5, of the Revised Penal Code may be
successfully invoked, the accused must prove the presence of
two (2) requisites, namely, that he acted in the performance of
a duty or in the lawful exercise of a right or an office, and that
the injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful
exercise of such right or office.

SPO1 Ulep and the other police officers involved originally

set out to perform a legal duty: to render police assistance, and
restore peace and order at Mundog Subdivision where the
victim was then running amuck. There were two (2) stages of
the incident at Mundog Subdivision. During the first stage, the
victim threatened the safety of the police officers by menacingly
advancing towards them, notwithstanding SPO1 Ulep's
previous warning shot and verbal admonition to the victim to
lay down his weapon or he would be shot. As a police officer, it
is to be expected that SPO1 Ulep would stand his ground. Up to

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that point, his decision to respond with a barrage of gunfire to

halt the victim's further advance was justified under the
circumstances. However, he cannot be exonerated from
overdoing his duty during the second stage of the incident -
when he fatally shot the victim in the head, even after the latter
slumped to the ground due to multiple gunshot wounds
sustained while charging at the police officers. The victim at
that point no longer posed a threat and was already incapable
of mounting an aggression against the police officers. Shooting
him in the head was obviously unnecessary.

It cannot therefore be said that the fatal wound in the head

of the victim was a necessary consequence of SPO1 Ulep's due
performance of a duty or the lawful exercise of a right or office.
However, he was convicted only of homicide because there was
no treachery. He was given also the benefit of a privileged
mitigating circumstance.

11. Cabanlig v. Sandiganbayan

G.R. No. 148431, 28 June 2005

Jordan Magat, Randy Reyes and Jimmy Valino were

arrested for robbery in Nueva Ecija by the investigating
authorities. Most of the stolen goods were recovered except for
a flower vase and a small radio. During the retrieval operation
for the unrecovered goods, Valino suddenly grabbed a police
officer’s M16 Armalite and jumped out of the jeep. Without
issuing any warning, SPO2 Cabanlig, the accused in this case,
fired one shot at Valino, followed by four more successive shots.
Valino did not fire any shot. Valino died from the wounds he
sustained.

SPO2 Cabanlig and the other police officers were charged

with murder. All were acquitted except for SPO2 Cabanlig, who
was convicted of homicide, the Sandiganbayan having found no
circumstance that would qualify the crime to murder.

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SPO2 Cabanlig challenged the decision by invoking the

justifying circumstances of fulfillment of duty and self-defense/
defense of stranger.

The Supreme Court reversed the Decision and acquitted

SPO2 Cabanlig and found that Cabanlig’s acts were justified
given the circumstances.

In this case, Valino was committing an offense in the

presence of the policemen when Valino grabbed the M16
Armalite from one of the policemen and jumped from the jeep to
escape. The policemen would have been justified in shooting
Valino if the use of force was absolutely necessary to prevent
his escape. But Valino was not only an escaping detainee.
Valino had also stolen the M16 Armalite of a policeman. The
policemen had the duty not only to recapture Valino but also to
recover the loose firearm. By grabbing the policeman's M16
Armalite, which is a formidable firearm, Valino had placed the
lives of the policemen in grave danger.

The Sandiganbayan had very good reasons in steadfastly

adhering to the policy that a law enforcer must first issue a
warning before he could use force against an offender. However,
the duty to issue a warning is not absolutely mandated at all
times and at all cost, to the detriment of the life of law enforcers.
The directive to issue a warning contemplates a situation where
several options are still available to the law enforcers. In
exceptional circumstances such as this case, where the threat
to the life of a law enforcer is already imminent, and there is no
other option but to use force to subdue the offender, the law
enforcer's failure to issue a warning is excusable.

In this case, the embattled policemen did not have the

luxury of time. Neither did they have much choice. Cabanlig's
shooting of Valino was an immediate and spontaneous reaction
to imminent danger.

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12. The sixth justifying circumstance is when a person acts in

obedience to an order issued by a superior for some lawful
purpose [REV. PEN. CODE, art. 11(6)]. Its requisites are:

(a) An order has been issued by a superior;

(b) The order is for a legal purpose; and

(c) The means to be used to carry out said order is lawful.

[Ambil v. Sandiganbayan, G.R. No. 175457, 6 July 2011]

B. Exempting Circumstances

13. There are seven (7) exempting circumstances enumerated in

Article 12 of the Revised Penal Code where a person who
commits a crime is exempt from criminal liability because of the
absence of freedom, intelligence or intent or lack of negligence.
However, he incurs civil liability, except in paragraphs 4 and 7,
Article 12 of the Revised Penal Code.

14. The exempting circumstances in Article 12 of the Revised Penal

Code, as amended by Republic Act No. 9344, include:

(a) An imbecile or insane person, unless the latter acted

1. under a lucid interval;
2.
(b) A person fifteen years or under;
3.
(c) A person over fifteen and under eighteen years, unless he
1. acted with discernment;
4.
(d) Accident;
5.
(e) Any person who acts under the compulsion of an
irresistible force;
6.
(f) Any person who acts under the impulse of an
uncontrollable fear; and

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7.
(g) Any person who fails to perform an act required by law
when prevented by some lawful or insuperable cause.

15. Article 12 of the Revised Penal Code exempts from criminal

liability an imbecile or an insane person unless the latter has
acted during a lucid interval. An imbecile is exempt at all times,
while an insane person is exempt unless he acted during a lucid
interval. An imbecile is a person marked by mental deficiency
while an insane person is one who has an unsound mind or
suffers from a mental disorder. [People v. Ambal, 100 SCRA 325
(1980)]

An imbecile, within the meaning of Article 12 of the Revised

Penal Code, is one who must be deprived completely of reason
or discernment and freedom of will at the time of committing
the crime. He is one who, while advanced in age, has a mental
development comparable to that of children between two and
seven years of age. [People v. Nunez, G.R. Nos. 112429-30, 23
July 1997]

Insanity has been defined as "a manifestation in language or

conduct of disease or defect of the brain, or a more or less
permanently diseased or disordered condition of the mentality,
functional or organic, and characterized by perversion,
inhibition, or disordered function of the sensory or of the
intellective faculties, or by impaired or disordered volition."
[People v. Ambal, 100 SCRA 325 (1980), citing Section 1039,
Revised Administrative Code]

16. A child fifteen (15) years and under is absolutely exempt from
criminal liability. A child over fifteen (15) years old but below
eighteen (18) years old is also exempt from criminal liability,
unless he acted with discernment. [Rep. Act No. 9344 (2006),
sec. 6]

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Under Article 12(3) of the Revised Penal Code, a minor over nine
years of age and under fifteen1 is exempt from criminal liability
if charged with a felony. The law applies even if such minor is
charged with a crime defined and penalized by a special penal
law. In such case, it is the burden of the minor to prove his age
in order for him to be exempt from criminal liability. The reason
for the exemption is that a minor of such age is presumed
lacking the mental element of a crime – the capacity to know
what is wrong as distinguished from what is right or to
determine the morality of human acts; wrong in the sense in
which the term is used in moral wrong. However, such
presumption is rebuttable. For a minor at such an age to be
criminally liable, the prosecution is burdened to prove beyond
reasonable doubt, by direct or circumstantial evidence, that he
acted with discernment, meaning that he knew what he was
doing and that it was wrong. [Jose v. People, 448 SCRA 116
(2005)]

17. The discernment that constitutes an exception to the exemption

from criminal liability of a minor under fifteen years of age but
over nine,2 who commits an act prohibited by law, is his mental
capacity to understand the difference between right and wrong
[People v. Doquena, 68 Phil. 580 (1939)] Discernment is more
than the mere understanding between right and wrong. Rather
it means the mental capacity of a minor to fully appreciate the
consequences of his unlawful act. [People v. Navarro, 51 O.G.
4062 (1955)]

18. Any person who, while performing a lawful act with due care,
causes an injury by mere accident, without fault or intention of
causing it, is exempt from criminal liability [REV. PEN. CODE, art.
11(6)].

The requisites of accident are:

(a) A person performs a lawful act;

1 Old rule
2 Old rule

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(b) With due care;

(c) He causes injury to another by mere accident

(d) Without fault or intention of causing it [RPC, art. 12(4)

and Toledo v. People, 482 Phil. 292 (2004)]

19. A person invoking the exempting circumstance of compulsion

due to irresistible force admits in effect the commission of a
punishable act, and must therefore prove the exempting
circumstance by clear and convincing evidence. Specifically: He
must show that the irresistible force reduced him to a mere
instrument that acted not only without will but also against his
will. The compulsion must be of such character as to leave the
accused no opportunity to defend himself or to escape. [People
v. Licayan, G.R. No. 203961, 29 July 2015]

Under Article 12 of the Revised Penal Code, a person is exempt

from criminal liability if he acts under the compulsion of an
irresistible force, or under the impulse of an uncontrollable fear
of equal or greater injury, because such person does not act
with freedom. However, the Supreme Court held that for such a
defense to prosper, the duress, force, fear, or intimidation must
be present, imminent and impending, and of such nature as to
induce a well-grounded apprehension of death or serious bodily
harm if the act be done. A threat of future injury is not enough.
In this case, as correctly held by the Court of Appeals, based on
the evidence on record, appellant had the chance to escape
Lumbayan's threat or engage Lumbayan in combat, as
appellant was also holding a knife at the time. Thus, appellant's
allegation of fear or duress is untenable. The Supreme Court
has held that in order for the circumstance of uncontrollable
fear may apply, it is necessary that the compulsion be of such
a character as to leave no opportunity for escape or self-defense
in equal combat. Therefore, under the circumstances,
appellant’s alleged fear, arising from the threat of Lumbayan,

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would not suffice to exempt him from incurring criminal

liability. [People v. Anod, G.R. No. 186420, 25 August 2009]

20. In People v. Bandian, 63 Phil 530 (1936), Valentin Aguilar saw

Josefina Bandian, who was then pregnant, went to a thicket
near her house, apparently to respond to a call of nature. A few
minutes later, he again saw her emerge from the thicket with
her clothes stained with blood, staggering and visibly showing
signs of not being able to support herself. He aided her rest in
her bed and observed that she was very weak and dizzy. Later,
Aguilar and another companion saw the body of a newborn
child in the thicket where Bandian had gone a few moments
earlier. When asked whether the baby was hers, Bandian said
yes. Bandian was charged and convicted of infanticide. The
Supreme Court reversed. The evidence certainly does not show
that Bandian, in causing her child’s death in one way or the
other, or in abandoning it in the thicket, did no willfully,
consciously or imprudently. She had no cause to kill or
abandon the baby. Bandian could not carry the child from the
thicket due to her debility or dizziness, which causes may be
considered lawful or insuperable to constitute the seventh
exempting circumstances.

C. Absolutory Causes

21. An absolutory cause is present “where the act committed is a

crime but for reasons of public policy and sentiment there is no
penalty imposed”. [People v. Talisic, G.R. No. 97961, 5
September 1997, citing Luis B. Reyes, The Revised Penal Code,
Volume I, 13th Edition, 1993, pp. 231-232]. There is generally
civil liability. There are several absolutory causes which
include:

a. The spontaneous desistance of the person who

commenced the commission of a felony before he could
perform all acts of execution [REV. PEN. CODE, art. 6(3)];
1.

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b. Frustrated and attempted light felonies are not

punishable, except in crimes against persons and property
[REV. PEN. CODE, art. 7];
2.
c. Accessories are not criminally liable in light felonies [REV.
PEN. CODE, art. 16];
3.
d. Accessories who are relatives of the principal are exempt
from criminal liability [REV. PEN. CODE, art. 20];

e. Death or serious physical injuries and other physical

injuries inflicted under exceptional circumstances [REV.
PEN. CODE, art. 247];

f. Absolutory causes in qualified trespass to dwelling [REV.

PEN. CODE, art. 280];

g. Exempt persons in certain crimes against property,

specifically estafa, theft or malicious mischief [REV. PEN.
CODE, art. 332];

h. Consent or pardon in certain crimes against chastity [REV.

PEN. CODE, art. 344]; and

i. Instigation [People v. Doria, G.R. No. 125299, 22 January

1999].

22. Article 247 of the Revised Penal Code does not define an offense.
Destierro is imposed more as a protection to the accused rather
than as a punishment. [People v. Abarca, 153 SCRA 735 (1987)]
It is rather an absolutory cause which is present "where the act
committed is a crime but for reasons of public policy and
sentiment there is no penalty imposed." [People v. Talisic, G.R.
No. 97961, 5 September 1997]

23. The absolutory cause in Article 247 of the Revised Penal Code
applies only to legally married persons and can be invoked by
the innocent spouse who surprises his or her spouse in sexual

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intercourse with another person and kills or inflicts physical

injuries on them in the act or immediately thereafter. It is not
applied if the spouse has promoted or facilitate the prostitution
or has otherwise consented to the infidelity of the other spouse.
[REV. PEN. CODE, art. 247 and People v. Talisic, G.R. No. 97961,
5 September 1997] This absolutory cause applies to parents
with respect to their daughters under eighteen years and their
seducers, while the daughters are living with their parents.
[REV. PEN. CODE, art. 247]

Article 247 of the Revised Penal Code states that it applies when
the guilty spouse has “sexual intercourse with another person”,
without specifying the gender of the paramour. However, in
People v. Butiong, G.R. No. G.R. No. 168932, 19 October 2011,
the Supreme Court stated that he basic element of rape is
carnal knowledge or sexual intercourse and carnal knowledge
is defined as "the act of a man having sexual bodily connections
with a woman."

24. Article 332 of the Revised Penal Code provides for an absolutory
cause in the crimes of theft, estafa (or swindling) and malicious
mischief. It limits the responsibility of the offender to civil
liability and frees him from criminal liability by virtue of his
relationship to the offended party. [Intestate Estate of Manolita
Gonzales vda. de Carungcong v. People, G.R. No. 181409, 11
February 2010]

Article 332 of the Revised Penal Code involves three crimes

against property only, namely, (a) theft, (b) estafa or swindling,
and (c) malicious mischief. It also includes three kinds of
relationships only, namely: (a) spouses, ascendants and
descendants, or relatives by affinity in the same line; (b) the
widowed spouse with respect to the property which belonged to
the deceased spouse before the same shall have passed into the
possession of another; and (c) brothers and sisters and
brothers-in-law and sisters-in-law, if living together. [REV. PEN.
CODE, art. 332]

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The exemption provided here does not apply to strangers

participating in the commission of the crime. [REV. PEN. CODE,
art. 332]

There is a view that under Article 332 of the Revised Penal Code,
the term "spouse" embraces common law relation for purposes
of exemption from criminal liability in cases of theft, swindling
and malicious mischief committed or caused mutually by
spouses. The Penal Code article, it is said, makes no distinction
between a couple whose cohabitation is sanctioned by a
sacrament or legal tie and another who are husband and wife
de facto. [Valino v. Adriano, G.R. No. 182894, 22 April 2014]

The relationship by affinity between the surviving spouse and

the kindred of the deceased spouse continues even after the
death of the deceased spouse, regardless of whether the
marriage produced children or not. [Intestate Estate of Manolita
Gonzales vda. de Carungcong v. People, G.R. No. 181409, 11
February 2010]

Furthermore, the coverage of Article 332 is strictly limited to the

simple felonies mentioned therein and it does not apply where
any of the crimes mentioned under Article 332 is complexed
with another crime, such as theft through falsification or estafa
through falsification. [Intestate Estate of Manolita Gonzales
vda. de Carungcong v. People, G.R. No. 181409, 11 February
2010]

25. Entrapment in the Philippines is not a defense available to the

accused. It is instigation that is a defense and is considered an
absolutory cause. [People v. Doria, G.R. No. 125299, 22
January 1999]

There are two tests in entrapment:

a. Subjective or origin of intent test, where the focus of the

inquiry is the accused’s predisposition to commit the

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offense charged, his state of mind and inclination before

his initial exposure to government agents; and

b. Objective test, where the court considers the nature of the

police activity involved and the propriety of police conduct.
The inquiry is focused on the inducements made by police
agents, on police conduct, not on the accused and his
predisposition to commit the crime.

D. Mitigating Circumstances

26. The mitigating circumstances are the following:

(a) Incomplete justifying and exempting circumstances, when

all the requisites necessary to justify the act or to exempt
from criminal liability in the respective cases are not
attendant;

(b) That the offender is under eighteen years of age or over

seventy years;

(c) That the offender had no intention to commit so grave a

wrong as that committed;

(d) That sufficient provocation or threat on the part of the

offended party immediately preceded the act;

(e) That the act was committed in the immediate vindication

of a grave offense to the one committing the felony (delito)
his spouse, ascendants, descendants, legitimate, natural
or adopted brothers or sisters or relatives by affinity within
the same degrees;

(f) That of having acted upon an impulse so powerful as

naturally to have produced passion or obfuscation;

(g) That the offender had voluntarily surrendered himself to a

person in authority or his agents, or that he had

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voluntarily confessed his guilt before the court prior to the

presentation of the evidence for the prosecution;

(h) That the offender is deaf and dumb, blind or otherwise

suffering some physical defect which thus restricts his
means of action, defense, or communication with his
fellow beings;

(i) Such illness of the offender as would diminish the exercise

of the will-power of the offender without however depriving
him of consciousness of his acts;

(j) And, finally, any other circumstance of a similar nature

and analogous to those above mentioned.

27. The list of mitigating circumstances in Article 13 of the Revised

Penal Code is not exclusive as there may be other mitigating
circumstances which are of a similar nature or analogous to
those enumerated, while the list of aggravating circumstances
in Article 14 of the Revised Penal Code are exclusive.

28. Mitigating circumstances may either be ordinary or privileged.

Ordinary mitigating circumstances will result to the imposition
of the lower indivisible penalty in case there are two indivisible
penalties under Article 63 of the Revised Penal Code or of the
penalty in its minimum period in case of a divisible penalty
under Article 64 of the Revised Penal Code, if there is no
aggravating circumstance; while a privileged mitigating
circumstance may result to the lowering of the penalty by a
degree or two degrees. [REV. PEN. CODE, art. 64(5), 68, and 69]

29. Incomplete justifying or exempting circumstances may be

ordinary or privileged mitigating circumstances. When majority
of the requisites are present, these are considered as privileged
mitigating circumstances under Article 69 of the Revised Penal
Code which may lead to the reduction of the penalty by one or
two degrees; when majority of the requisites are not present,

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these are considered as ordinary mitigating circumstances

under Article 13(1) of the Revised Penal Code.

30. Minority in Article 13(2) of the Revised Penal Code is an

exempting circumstance if the child is 15 years old or below or
a privileged mitigating circumstance under Article 68 of the
Revised Penal Code, which will result to a reduction of only one
degree, if the child is over 15 but below 18 years old who acted
with discernment.

31. When originally there are two or more mitigating circumstances

and no aggravating circumstance, it will be considered as a
privileged mitigating circumstance which will result to the
imposition of the penalty next lower in degree. [REV. PEN. CODE,
art. 64(5)] It does not apply if there was originally an aggravating
circumstance and offsetting was done leaving two or more
mitigating circumstances.

E. Aggravating Circumstances

32. The following are aggravating circumstances:

(a) That advantage be taken by the offender of his public

position;

(b) That the crime be committed in contempt of or with insult

to the public authorities;

(c) That the act be committed with insult or in disregard of

the respect due to the offended party on account of his
rank, age, or sex, or that it be committed in the dwelling
of the offended party, if the latter has not given
provocation;

(d) That the act be committed with abuse of confidence or

obvious ungratefulness;

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(e) That the crime be committed in the palace of the Chief

Executive, or in his presence, or where public authorities
are engaged in the discharge of their duties, or in a place
dedicated to religious worship;

(f) That the crime be committed in the nighttime, or in an

uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the
offense.

Whenever more than three armed malefactors shall have

acted together in the commission of an offense, it shall be
deemed to have been committed by a band.

(g) That the crime be committed on the occasion of a

conflagration, shipwreck, earthquake, epidemic, or other
calamity or misfortune;

(h) That the crime be committed with the aid of armed men or
persons who insure or afford impunity;

(i) That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment of
another crime embraced in the same title of this Code;

(j) That the offender has been previously punished for an

offense to which the law attaches an equal or greater
penalty or for two or more crimes to which it attaches a
lighter penalty;

(k) That the crime be committed in consideration of a price,

reward, or promise;

(l) That the crime be committed by means of inundation, fire,

poison, explosion, stranding of a vessel or intentional

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damage thereto, derailment of a locomotive, or by the use

of any other artifice involving great waste and ruin;

(m) That the act be committed with evident premeditation;

(n) That craft, fraud, or disguise be employed;

(o) That advantage be taken of superior strength, or means be

employed to weaken the defense;

(p) That the act be committed with treachery (alevosia).

There is treachery when the offender commits any of the

crimes against the person, employing means, methods, or
forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself
arising from the defense which the offended party might
make;

(q) That means be employed or circumstances brought about

which add ignominy to the natural effects of the act;

(r) That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance is effected by

a way not intended for the purpose;

(s) That as a means to the commission of a crime a wall, roof,

floor, door, or window be broken;

(t) That the crime be committed with the aid of persons under
fifteen years of age or by means of motor vehicles,
motorized watercraft, airships, or other similar means;
and

(u) That the wrong done in the commission of the crime be

deliberately augmented by causing other wrong not
necessary for its commission.

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33. The qualifying and aggravating circumstances must be alleged

in the complaint or information, otherwise, these cannot be
appreciated by the court even if subsequently proved during the
trial. [Rules of Court, Rule 110, sec. 8 and 9 and Sombillon v.
People, G.R. No. 175528, 30 September 2009]

34. Aggravating circumstances which in themselves constitute a

crime especially punishable by law or which are included by law
in defining a crime and prescribing the penalty therefor as well
as those which are inherent in the crime are not taken into
account for the purpose of increasing the penalty. [REV. PEN.
CODE, art. 62]

35. Aggravating or mitigating circumstances which arise from the

moral attributes of the offender or from his private relations
with the offended party, or from any other personal cause shall
only serve to aggravate or mitigate the liability of those as to
whom such circumstances are attendant; while circumstances
which consist in the material execution of the act or in the
means employed to accomplish it shall serve to aggravate or
mitigate the liability of those persons only who had knowledge
of them at the time of the execution of the act or their
cooperation therein. [REV. PEN. CODE, art. 62]

36. Special aggravating circumstances may not be offset by

ordinary mitigating circumstances and mandate that the
penalty be imposed always in its maximum period, including: (i)
penalty for complex crimes in Article 48 of the Revised Penal
Code; (ii) penalty for mistake in identity in Article 49 of the
Revised Penal Code; (iii) when the offender took advantage of his
public position in the commission of a crime in Article 62(1)(a)
of the Revised Penal Code (iv) when the offense was committed
by any person who belongs to an organized/syndicated group
in Article 62(1)(a) of the Revised Penal Code; and (v) in quasi-
recidivism in Article 160 of the Revised Penal Code.

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Article 14(20) of the Revised Penal Code considers it an

aggravating circumstance when the crime be committed with
the aid of persons under fifteen (15) years of age. Section 20(C)
of Republic Act No. 9344 (2006), as amended, or the Juvenile
Justice and Welfare Act of 2006 considers this as a special
aggravating circumstance as it provides that “[a]ny person who,
in the commission of a crime, makes use, takes advantage of,
or profits from the use of children, including any person who
abuses his/her authority over the child or who, with abuse of
confidence, takes advantage of the vulnerabilities of the child
and shall induce, threaten or instigate the commission of the
crime, shall be imposed the penalty prescribed by law for the
crime committed in its maximum period."

In view of the amendments introduced by Rep. Act No. 8294 and

Rep. Act No. 10591, to Presidential Decree No. 1866, separate
prosecutions for homicide and illegal possession are no longer
in order. Instead, illegal possession of firearm is merely to be
taken as an aggravating circumstance in the crime of murder.
It is clear from the foregoing that where murder results from the
use of an unlicensed firearm, the crime is not qualified illegal
possession but, murder. In such a case, the use of the
unlicensed firearm is not considered as a separate crime but
shall be appreciated as a mere aggravating circumstance. Thus,
where murder was committed, the penalty for illegal possession
of firearms is no longer imposable since it becomes merely a
special aggravating circumstance. The intent of Congress is to
treat the offense of illegal possession of firearm and the
commission of homicide or murder with the use of unlicensed
firearm as a single offense. [People v. Gaborne, G.R. No. 210710,
27 July 2016]

37. Whatever may be the number and nature of the aggravating

circumstances, the courts shall not impose a greater penalty
than that prescribed by law, in its maximum period. [REV. PEN.
CODE, art. 64(6)]

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38. The essence of treachery is the unexpected and sudden attack

on the victim which renders the latter unable and unprepared
to defend himself by reason of the suddenness and severity of
the attack. This criterion applies, whether the attack is frontal
or from behind. Even a frontal attack could be treacherous
when unexpected and on an unarmed victim who would be in
no position to repel the attack or avoid it. [People v. Pulgo, G.R.
No. 218205, 5 July 2017]

F. Alternative Circumstances

39. Alternative circumstances are those which must be taken into

consideration as aggravating or mitigating according to the
nature and effects of the crime and the other conditions
attending its commission. They are the relationship,
intoxication and the degree of instruction and education of the
offender. [REV. PEN. CODE, art. 15]

40. The intoxication of the offender shall be taken into

consideration as a mitigating circumstance when the offender
has committed a felony in a state of intoxication, if the same is
not habitual or subsequent to the plan to commit said felony;
but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance. [REV. PEN. CODE,
art. 15]

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