CRIMINAL LAW I

Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK

1st Semester S.Y. 2021-2022
a. Not resisting arrest. Yielding to arrest without the slightest attempt to resist is not
analogous to voluntary surrender. (People vs. Rabuya, No. L-30518, Nov. 7, 1979, 94
SCRA 123, 138)
b. The condition of running amuck.
Ex. The defense contended that running amuck is a cult among the Moros that is
age-old and deeply rooted. Insofar as they are applicable, mitigating circumstances
must be applied alike to all criminals be they Christians, Moros or Pagans. (People
vs. Salazar, 105 Phil. 1058)
Mitigating circumstances which are personal to the offenders.
Art. 62 Par 3: Mitigating circumstances which arise (1) from the moral attributes of the
offender, or (2) from his private relations with the offended party, or (3) from any other
personal cause, shall only serve to mitigate the liability of the principals, accomplices,
and accessories as to whom such circumstances are attendant.
1. Mitigating circumstances which arise from the moral attributes of the offender.
Ex. A and B killed C, A acting under an impulse which produced obfuscation.
The circumstance of obfuscation arose from the moral attribute of A and it
shall mitigate the liability of A only. It shall not mitigate the liability of B.
2. Mitigating circumstances which arise from the private relations of the offender with
the offended party.
Ex. A, son of B, committed robbery against the latter, while C, a stranger,
bought the property taken by A from B, knowing that the property was the
effect of the crime of robbery. The circumstance of relationship (Art. 15) arose
from the private relation of A with B and it shall mitigate the liability of A only.
It shall not mitigate the liability of C, an accessory. (Art. 19)
3. Mitigating circumstances which arise from any other personal cause.
Ex. A, 14 years old and acting with discernment, inflicted serious physical
injuries on C. B, seeing what A had done to C, kicked the latter, thereby
concurring in the criminal purpose of A and cooperating with him by
simultaneous act. (Art. 18) The circumstance of minority arose from other
personal cause and it shall mitigate the liability of A only. It shall not mitigate
the liability of B, an accomplice.
Circumstances which are neither exempting nor mitigating.
1. Mistake in the blow or aberratio ictus, for under Art. 48, there is a complex crime
committed. The penalty is even higher.
2. Mistake in the identity of the victim, for under Art. 4, par. 1, the accused is
criminally liable even if the wrong done is different from that which is intended.
See Art. 49 as to its effect on the penalty.
3. Entrapment of the accused.
4. The accused is over 18 years of age. If the offender is over 18 years old, his age is
neither exempting nor mitigating. (People vs. Marasigan, 70 Phil. 583)
5. Performance of righteous action. The performance of righteous action, no matter
how meritorious it may be, is not justifying, exempting, or mitigating circumstance
in the commission of wrongs, and although the accused had saved the lives of a
thousand and one persons, if he caused the killing of a single human being, he is,
nonetheless, criminally liable. (People vs. Victoria, 78 Phil. 122)
Art. 14. Aggravating circumstances. — The following are aggravating circumstances
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt of or with insult to the public authorities.
3. That the act be committed with insult or in disregard of the respect due 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.
4. That the act be committed with abuse of confidence or obvious ungratefulness.
5. That the crime be committed in the palace of the Chief Executive, or in his presence, or
where public authorities are engaged in the discharge of their duties, or in a place
dedicated to religious worship.
6. That the crime be committed in the nighttime, or in an uninhabited place, or by a band,
whenever such circumstances may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted together in the
commission of an offense it shall be deemed to have been committed by a band.
7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake,
epidemic or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons who insure or afford
impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the same
title of this Code.
10. That the offender has been previously punished for an offense to which the law
attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter
penalty.
11. That the crime be committed in consideration of a price, reward, or promise.
12. That the crime be committed by means of inundation, fire, poison, explosion, stranding
of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any
other artifice involving great waste and ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.

CHAPTER IV. CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL LIABILITY

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 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
15. That advantage be taken of superior strength, or means be employed to weaken the Ex. Alevosia (treachery) or evident premeditation qualifies the killing of a
defense. person to murder. Art. 248 enumerate s the qualifying aggravating
circumstances which qualify the killing of person to murder.
16. That the act be committed with treachery (alevosia). 4. Inherent — Those that must of necessity accompany the commission of the crime.
(Art. 62, par. 2)
There is treachery when the offender commits any of the crimes against the Ex. Evident premeditation is inherent in robbery, theft, estafa, adultery and
person, employing means, methods, or forms in the execution thereof which tend concubinage.
directly and specially to insure its execution, without risk to himself arising from
the defense which the offended party might make.
Qualifying Aggravating Generic Aggravating
17. That means be employed or circumstances brought about which add ignominy to the give the crime its proper and exclusive not offset by any mitigating circumstance;
natural effects of the act. name; place the author thereof in such a increase the penalty which should be
situation as to deserve no other penalty imposed upon the accused to the
18. That the crime be committed after an unlawful entry. than that specially prescribed by law for maximum period, but without exceeding
said crime. the limit prescribed by law
There is an unlawful entry when an entrance is effected by a way not intended cannot be offset by a mitigating may be compensated by a mitigating
for the purpose. circumstance circumstance
must be alleged in the information even if not alleged in the information,
19. That as a means to the commission of a crime a wall, roof, floor, door, or window be because it is an integral part of the may be proved over the objection of the
broken. offense. If it is not alleged, it is a generic defense and may be appreciated in
aggravating circumstance only imposing the sentence.
20. That the crime be committed with the aid of persons under fifteen years of age or by
means of motor vehicles, airships, or other similar means. evidence merely forms part of the proof
of the actual commission of the offense
21. That the wrong done in the commission of the crime be deliberately augmented by and does not violate the constitutional
causing other wrong not necessary for its commission. right of the accused to be informed of the
nature and cause of accusation against
Aggravating circumstances - are those which, if attendant in the commission of the crime, him.
serve to increase the penalty without, however, exceeding the maximum of the penalty
provided by law for the offense. ● In simple theft, the qualifying circumstance of grave abuse of confidence has not been
alleged, said circumstance cannot qualify the crime committed but must be regarded
BASIS: They are based on the greater perversity of the offender manifested in the only as a generic aggravating circumstance. (People vs. Abella, C.A., 45 O.G. 1802)
commission of the felony as shown by: ● If not alleged in the information, treachery is only generic aggravating circumstance
1. the motivating power itself, ● An aggravating circumstance should be proved as fully as the crime itself in order to
2. the place of commission, increase the penalty.
3. the means and ways employed, ● Pursuant to the 2000 Revised Rules of Criminal Procedure, every Complaint or
4. the time, or Information must state not only the qualifying but also the aggravating circumstances.
5. the personal circumstances of the offender, or of the offended party.
Aggravating circumstances which do not have the effect of increasing the penalty.
Four kinds of aggravating circumstances. 1. Art. 62, par. 1
1. Generic — Those that can generally apply to all crimes. a. which in themselves constitute a crime specially punishable by law, or
Ex. Dwelling, nighttime, or recidivism. In Art. 14, the circumstances in Ex. "That the crime be committed by means of xxx fire, x x x
paragraphs Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9,10,14,18,19 , and 20, except "by explosion" (Art. 14, par. 12) is in itself a crime of arson (Art. 321) or
means of motor vehicles," are generic aggravating circumstances. crime involving destruction. (Art. 324) It is not to be considered to
2. Specific — Those that apply only to particular crimes. increase the penalty for the crime of arson or for the crime involving
Ex. Ignominy in crimes against chastity or cruelty and treachery in crimes destruction.
against persons. In Art. 14, the circumstances in paragraphs Nos. 3 (except b. which are included by the law in defining a crime and prescribing the
dwelling), 15,16,17 and 21 are specific aggravating circumstances. penalty therefor shall not be taken into account for the purpose of
3. Qualifying — Those that change the nature of the crime. increasing the penalty.

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 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
Ex. "That the act x x x be committed in the dwelling of the offended
party" (Art. 14, par. 3) or "that the crime be committed after an
unlawful entry" (Art. 14, par. 18), or "that as a means to the
commission of a crime a wall, roof, floor, door, or window be broken
(Art. 14, par. 19) is included by Art. 299 in denning robbery in an
inhabited house. It shall not be taken into account for the purpose of
increasing the penalty for that kind of robbery.
2. Art. 62, par. 2: The same rule shall apply with respect to any aggravating
circumstance inherent in the crime to such a degree that it must of necessity
accompany the commission thereof.
Ex. a. Evident premeditation is inherent in theft, robbery, estafa,
adultery and concubinage.
b. Taking advantage of public position is inherent in crimes where the
offenders, who are public officers, committed the crime in the exercise
of their functions, such as in bribery, malversation, etc.
Aggravating circumstances which are personal to the offenders.
Art. 62, par. 3: Aggravating circumstances which arise:
a. from the moral attributes of the offender, or
b. from his private relations with the offended party, or
c. from any other personal cause, shall only serve to aggravate the liability of the
principals, accomplices, and accessories as to whom such circumstances are
attendant.
EXAMPLE:
1. A, with evident premeditation, gave B P1,000 to kill C. B immediately killed C.
Evident premeditation is an aggravating circumstance which arises from the moral
attribute of A. It shall serve to aggravate only the liability of A, but not that of B.
2. A, stepson of B, killed the latter. C, knowing that A killed B without justification,
buried the dead body of B to prevent the discovery of the crime. The private
relation of A with B shall serve to aggravate only the liability of A. It shall not
serve to aggravate the liability of C, the accessory. (Art. 19, par. 2)
3. A, who was previously convicted by final judgment of theft and served sentence
therefor, and B committed robbery. Both were prosecuted and found guilty after
trial. Upon his conviction for robbery, A was a recidivist. Recidivism is an
aggravating circumstance which arises from personal cause. It shall serve to
aggravate only the liability of A, but not that of B.
Aggravating circumstances which depend for their application upon the knowledge of the
offenders.
Art. 62, par. 4: The circumstances which consist
1. in the material execution of the act, or
2. in the means employed to accomplish it, shall serve to aggravate the liability of
those persons only who had knowledge of them at the time of the execution of
the act or their cooperation therein.
● When the public officer did not take advantage of the influence of his position, this
EXAMPLE:
1. In his house, A ordered B to kill C. A and B did not talk about the manner C
would be killed. B left the house of A and looked for C. B found C and killed the
latter with treachery. (Art. 14, par. 16) The aggravating circumstance of
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treachery consists in the material execution of the act. Since A had no
knowledge of it, treachery shall only aggravate the liability of B.
2. A ordered B and C to kill D, instructing them to wait until nighttime so that the
crime could be committed with impunity. B and C killed D at nighttime.
Although A did not take direct part in the commission of the crime, the
aggravating circumstance of nighttime shall also aggravate his liability, because
he had knowledge of it at the time of the execution of the act by B and C.
Paragraph 1: ‘That advantage be taken by the offender of his public position.’
BASIS: greater perversity of the offender, as shown by the personal circumstance of the
offender and also by the means used to secure the commission of the crime.
● applies only when the person committing the crime is a public officer who takes
advantage of his public position.
● "advantage be taken by the offender of his public position.":
EXAMPLE:
1. The accused took advantage of his public position. He could not have
maltreated the victim if he was not a policeman on guard duty. Because of
his position, he had access to the cell where the victim was confined. The
prisoner was under his custody. (People vs. Ural, No. L-30801, March 27,
1974, 56 SCRA 138, 145)
2. There is abuse of public position where a police officer in the course of
investigation of a charge against him for grave threats shot the complainant
in a treacherous manner. (People vs. Reyes, No. L-33154, Feb. 27, 1976, 69
SCRA 474, 480-481)
3. Advantage of public position is present where the accused used their
authority as members of the police and constabulary to disarm the victim
before shooting him. (People vs. Asuncion, G.R. No. 83870, Nov.
14,1989,179 SCRA 396, 402)
● In the case of a Congressman who offered resistance to his captor upon being surprised
in a gambling house, this aggravating circumstance is not present. (People vs. Veloso,
48 Phil. 169,183) The reason for this ruling is that the Congressman did not take
advantage of the influence or reputation of his office.
● This aggravating circumstance is present when a councilor collects fines and
misappropriates them.
The accused, shortly after entering upon his duties as councilor of the town of
Aparri, ordered that deaths of all large animals must be reported to him as
councilman. As a result of this instruction, the owners of several such animals were
induced to pay the accused supposed fines on the belief that such were required
by a municipal ordinance. He spent the money paid to, and received by him as
fines. The crime committed by Torrida is estafa by means of deceit. (U.S. vs.
Torrida , 23 Phil. 189)
aggravating circumstance is not present.
Thirty-nine (39) persons requested the accused, then a councilor, to purchase
cedulas for them giving him P39.00. He took only 16 cedulas, and spent the rest of
the money. In this case, Dacuycuy did not avail himself of the influence, prestige
or ascendancy which his position carried with it, when he committed the crime of
 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
estafa with abuse of confidence. (Art. 315, par. 1) He received the money in his
private capacity. He was requested by the people to buy cedula certificates for
them.
● There must be proof that the accused took advantage of his public position.
● Peace officers taking advantage of their public positions.
EXAMPLE:
1. A policeman in uniform who abducted a girl by availing himself of his
position (U.S. vs. Yumul, 34 Phil. 169,175),
2. the chief of police who, during the search of a boat by means of intimidation,
obtained money from the crew (People vs. Cerdena, 51 Phil. 393, 394-395),
3. a special agent of the military police who committed robbery with homicide
with the gun which he had been authorized to carry as a peace officer
(People vs. Madrid, 88 Phil. 1,15)
● wearing uniform is immaterial in certain cases.
The mere fact that he was in fatigue uniform and had army rifle at the time is not
sufficient to establish that he misused his public position in the commission of the
crimes. (People vs. Pantoja, No. L18793, Oct. 11, 1968, 25 SCRA 468, 471-472)
● Failure in official duties is tantamount to abusing of office.
Not aggravating:
1. when it is an integral element of, or inherent in, the offense.
- where taking advantage of official-position is made by law an integral element
of the crime,
Ex. a. malversation under Art. 217, or
b. falsification of document committed by public officers under Art. 171.
c. accessories under Art. 19, par. 3, and
d. crimes committed by public officers. (Arts. 204 to 245)
Not aggravating if accused could have perpetrated the crime without
occupying police position
2. if accused could have perpetrated the crime without occupying police position
Paragraph 2: ‘That the crime be committed in contempt of or with insult to the public
authorities.’
BASIS: greater perversity of the offender, as shown by his lack of respect for the public
authorities..
Requisites:
1. That the public authority is engaged in the exercise of his functions.
2. That he who is thus engaged in the exercise of said functions is not the person
against whom the crime is committed.
3. The offender knows him to be a public authority.
4. His presence has not prevented the offender from committing the criminal act.
EXAMPLE:
A and B are quarreling on a street and the municipal mayor, upon passing by, attempts to
separate them to stop the quarrel. Notwithstanding the intervention and the presence of
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the mayor, A and B continued to quarrel until A succeeds in killing B. In this case, A
commits the crime of homicide with the aggravating circumstance of a "in contempt of or
with insult to the public authority."
public authority
- also called a person in authority,
- is a public officer who is directly vested with jurisdiction, that is, a public officer
who has the power to govern and execute the laws.
- councilor, the mayor, the governor, barangay captain and barangay chairman
● Not applicable when crime is committed in the presence of an agent only.
agent of a person in authority - any person who, by direct provision of law or by
election or by appointment by competent authority, is charged with the maintenance of
public order and the protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any person who comes to the
aid of persons in authority.
● The crime should not be committed against the public authority while he is in the
performance of his official duty. The offender commits direct assault (Art. 148) without
this aggravating circumstance, because it is not a crime committed "in contempt of or
with insult" to him, but a crime directly committed against him.
● Knowledge that a public authority is present is essential. Lack of knowledge on the part
of the offender that a public authority is present indicates lack of intention to insult the
public authority.
EXAMPLE:
If A killed B in the presence of the town mayor, but A did not know of the presence
of the mayor, this aggravating circumstance should not be considered against A
Paragraph 3: ‘That the act be committed (1) with insult or in disregard of the respect due
the offended party on account of his (a) rank, (b) age, or (c) sex, or (2) that it be
committed in the dwelling of the offended party, if the latter has not given provocation.’’
BASIS: greater perversity of the offender, as shown by the personal circumstances of the
offended party and the place of the commission of the crime.
When all the four aggravating circumstances are present, must they be considered as one?
● can be considered single or together.
● If all the four circumstances are present, they have the weight of one
aggravating circumstance only.
● See the case of People vs. Santos, 91 Phil. 320, cited under paragraph 6, Art. 14.
The aggravating circumstances of sex and age of the injured party as well as those
of dwelling place and nighttime must also be taken into account. (People vs. Taga,
53 Phil. 273)
with insult or in disregard of the respect due to the offended party on account of his rank,
age, or sex
● This circumstance (rank, age or sex) may be taken into account only in crimes against
persons or honor.
● In the case of the robbery of a thing belonging to the President, the aggravating
circumstance of disregard of respect due the offended party cannot be taken into
account, because the mere fact that the thing belongs to the President does not make it
more valuable than the things belonging to a private person.
 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
● Robbery with homicide is primarily a crime against property and not against persons.
Homicide is a mere incident of the robbery, the latter being the main purpose and object
of the criminal. (People vs. Pagal, No. L-32040, Oct. 25, 1977, 79 SCRA 570, 576-577)
"with insult or in disregard."
● It is necessary to prove the specific fact or circumstance, other than that the victim is a
woman (or an old man or one of high rank), showing insult or disregard of sex (or age or
rank) in order that it may be considered as aggravating circumstance. (People vs.
Valencia, C.A., 43 O.G. 3740)
● There must be evidence that in the commission of the crime, the accused deliberately
intended to offend or insult the sex or age of the offended party. (People vs. Mangsant,
65 Phil. 548, 550-551)
● The circumstance of old age cannot be considered aggravating.
With insult or in disregard of the respect due the offended party on account :
1. of the rank of the offended party - there must be a difference in the social condition
of the offender and the offended party.
Rank - refers to a high social position or standing as a grade in the armed forces;
- a graded official standing or social position or station;
- the order or place in which said officers are placed in the army and navy in
relation to others;
- the designation or title of distinction conferred upon an officer in order to fix his
relative position in reference to other officers in matters of privileges,
precedence, and sometimes of command or by which to determine his pay and
emoluments as in the case of army staff officers; or to a grade or official
standing, relative position in civil or social life, or in any scale of comparison,
status, grade, including its grade, status or scale of comparison within a
position.
EXAMPLE:
1. A private citizen who attacked and injured a person in authority, or a pupil
who attacked and injured his teacher (U.S. vs. Cabiling, 7 Phil. 469, 474), the
act not constituting direct assault under Art. 148 of the Revised Penal Code
2. Killing a judge because he was strict or because of resentment which the
accused harbored against him as a judge, constitutes the aggravating
circumstance of disregard of the respect due the offended party on account
of his rank. (People vs. Valeriano, 90 Phil. 15, 34-35)
3. An attempt upon the life of a general of the Philippine Army is committed in
disregard of his rank. (People vs. Torres, G.R. No. L-4642, May 29,1953)
● Proof of fact of disregard and deliberate intent to insult required.
EXAMPLE:
Disregard of the rank of the victim who was a barangay captain cannot be
appreciated as an aggravating circumstance there being no proof of the specific
fact or circumstance that the accused disregarded the respect due to the
offended party, nor does it appear that the accused deliberately intended to insult
the rank of the victim as barrio captain. (People vs. Talay, No. L-24852, Nov. 28,
1980, 101 SCRA 332, 347)
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2. of the age of the offended party
EXAMPLE:
1. when the offended person, by reason of his age, could be the father of the
offender. (Viada, 1 Cod. Pen. 326; U.S. vs. Esmedia, 17 Phil. 260, 264-265;
U.S. vs. Reguera, 41 Phil. 506, 517- 518)
2. applies to an aggressor, 45 years old, while the victim was an octogenarian.
(People vs. Orbillo, G.R. No. L-2444, April 29, 1950)
3. where the person killed was eighty years old and very weak. (People vs.
Gummuac, 93 Phil. 657)
4. when the deceased was 65 while the offenders were 32 and 27 years of
age, respectively. (People vs. Zapata, G.R. No. L-11074, Feb. 27, 1960, 107
Phil. 103, 108)
5. The crime was committed in disregard of the respect due to the victim on
account of age and relationship. The accused being a grandson of the
deceased. (People vs. Curatchia, No. L-31771, May 16, 1980, 97 SCRA 549,
556)
6. The circumstance of lack of respect due to age applies in cases where the
victim is of tender age as well as of old age. This circumstance was applied
in a case where one of the victims in a murder case was a 12-year-old boy.
Here, the victim was only 3 years old. (People vs. Lora, No. L49430, March
30,1982,11 3 SCRA 366,375, citing U.S. vs. Butag, 38 Phil. 746.)
7. where one of the victims was only five years old, another, a minor, and the
third, a seven-month-old baby (People vs. Enot, No. L-17530, Oct. 30, 1962,
6 SCRA 325, 329-330, )
● Deliberate intent to offend or insult required.
● Disregard of old age not aggravating in robbery with homicide. Why? Robbery with
homicide is primarily a crime against property and not against persons.
3. of the sex of the offended party.
● This refers to the female sex, not to the male sex.
EXAMPLE:
1. When a person compels a woman to go to his house against her will,
the crime of coercion with the aggravating circumstance of disrespect
to sex is committed. (U.S. vs. Quevengco, 2 Phil. 412, 413)
2. The accused who, upon knowing the death of their relative, and not
being able to take revenge on the killers, because of their
imprisonment, selected and killed a female relative of the killers in
retaliation, committed the act with this aggravating circumstance.
(People vs. Dayug, 49 Phil. 423, 427)
3. Direct assault upon a lady teacher. (Sarcepuedes vs. People, 90 Phil.
230; People vs. Manapat, C.A., 51 O.G. 894)
● No disregard of respect due to sex.
EXAMPLE:
1. A and B (a woman) were sweethearts. B told A that she no longer cared for
him and that she loved another man. A stabbed B to death.
Held: It was not proved or admitted by the accused that when he committed
the crime, he had the intention to offend or disregard the sex of the victim.
(People vs. Mangsant, 65 Phil. 548, 550)
 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
2. Killing a woman is not attended by this aggravating circumstance if the
offender did not manifest any specific insult or disrespect towards her sex.
Disregard of sex is not aggravating in the absence of evidence that the
accused deliberately intended to offend or insult the sex of the victim or
showed manifest disrespect to her womanhood. (People vs. Puno, No.
L-33211, June 29, 1981, 105 SCRA 151,160, citing People vs. Mangsant, 65
Phil. 548; People vs. Mori, L-23511-2, January 31, 1974, 55 SCRA 382;
People vs. Jaula, 90 Phil. 379; U.S. vs. De Jesus, 14 Phil. 190)
● Disregard of sex absorbed in treachery.
This aggravating circumstance is not to be considered in the following cases:
a. When the offender acted with passion and obfuscation.
b. When there exists a relationship between the offended party and the offender.
c. When the condition of being a woman is indispensable in the commission of the
crime
That the crime be committed in the dwelling of the offended party.
BASIS: greater perversity of the offender, as shown by the place of the commission of the
offense.
Dwelling - a building or structure, exclusively used for rest and comfort.
- includes dependencies, the foot of the staircase and enclosure under the house
● Dwelling is considered an aggravating circumstance primarily because of the sanctity
of privacy the law accords to human abode.
● One's dwelling place is a "sanctuary worthy of respect" and that one who slanders
another in the latter's house is more guilty than he who offends him elsewhere
● Not a dwelling: A "combination house and store" or a market stall where the victim
slept.
● The evidence must show clearly that the defendant entered the house of the deceased
to attack him.
What aggravates the commission of the crime in one's dwelling:
1. The abuse of confidence which the offended party reposed in the offender by opening
the door to him; or
2. The violation of the sanctity of the home by trespassing therein with violence or
against the will of the owner.)
● Offended party must not give provocation - When it is the offended party who has
provoked the incident, he loses his right to the respect and consideration due him in his
own house.
Provocation must be:
1. Given by the owner of the dwelling,
2. Sufficient, and
3. Immediate to the commission of the crime.
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Note: 1. If all these conditions are present, the offended party is deemed to have given
provocation, and the fact that the crime is committed in the dwelling of the offended
party is not an aggravating circumstance.
2. if any of those conditions is not present, the offended party is deemed not to have
given provocation, and the fact that the crime is committed in the dwelling of the
offended party is an aggravating circumstance.
● There must be a close relation between provocation and commission of crime in the
dwelling.
○ this is true only when there exists a close relation between the provocation
and the commission of the crime in the dwelling of the person from whom the
provocation came.
● Because the provocation is not immediate, dwelling is aggravating.
EXAMPLE:
The defendant learned that the deceased and the former's wife were maintaining
illicit relations. One night, he went to the house of the deceased and killed him
then and there. During the trial of the case, the defense contended that the
deceased provoked the crime by his illicit relations with the defendant's wife.
Held: That the provocation (the illicit relations) was not given immediately prior
to the commission of the crime. Dwelling is still aggravating. (People vs. Dequina,
60 Phil. 279, 288-289)
Even if the defendant came to know of the illicit relations immediately before he
went to the house of the deceased, the aggravating circumstance of dwelling
may still be considered against the defendant because the provocation (the illicit
relations) did not take place in that house.
If the defendant surprised the deceased and the wife of the defendant in the act
of adultery in the house of the deceased, the aggravating circumstance of
dwelling would not exist. (People vs. Dequina, supra)
● Owner of dwelling gave immediate provocation — dwelling is not aggravating.
EXAMPLE:
While in her house, the offended party began to abuse the daughter of the
accused and to call her vile names. The accused heard the insulting words and
appeared in front of the offended party's house and demanded an explanation. A
quarrel ensued, and the accused, becoming very angry and excited, entered the
house of the offended party and struck her with a bolo. In that case, the invasion
of the privacy of the offended party's home was the direct and immediate
consequence of the provocation given by her. No aggravating circumstance of
dwelling. (U.S. vs. Licarte, 23 Phil. 10, 12)
● Prosecution must prove that no provocation was given by the offended party.
● Even if the offender did not enter the dwelling, this circumstance applies.
EXAMPLE:
1. where the victim who was asleep in his house was shot as he opened the
door of his house upon being called and awakened by the accused. (People
vs. Talay, No. L-24852, Nov. 28, 1980, 101 SCRA 332, 346)
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2. even if the offender did not enter the upper part of the house where the
victim was, but shot from under the house. (People vs. Bautista, 79 Phil.
652, 653, 657)
● Even if the killing took place outside the dwelling, it is aggravating provided that the
commission of the crime was begun in the dwelling.
EXAMPLE:
where the accused began the aggression upon the person of the deceased in the
latter's dwelling by binding his hands or by dragging him from his house and
after taking him to a place near the house he killed him, dwelling is aggravating,
since the act performed cannot be divided or the unity resulting from its details
be broken up. (U.S. vs. Lastimosa, 27 Phil. 432, 438; People vs. Mendova, 100
Phil. 811, 818)
● Dwelling is aggravating in abduction or illegal detention.
● Dwelling was not aggravating in a case where the deceased was called down from
his house and he was murdered in the vicinity of the house.
● When the deceased had two houses where he used to live, the commission of the
crime in any of them is attended by the aggravating circumstance of dwelling.
Dwelling is not aggravating in the following cases:
1. When both offender and offended party are occupants of the same house (U.S. vs.
Rodriguez, 9 Phil. 136,139-140), and this is true even if offender is a servant in the
house. (People vs. Caliso, 58 Phil. 283, 294-295). Thus, dwelling is not aggravating in
rape where the accused and the offended party are domiciled in the same house.
(People vs. Morales, No. L-35413, Nov. 7,1979, 94 SCRA 191, 201)
2. When the robbery is committed by the use of force upon things, dwelling is not
aggravating because it is inherent. To commit robbery by the use of force upon things,
the offender must enter the dwelling house, or other building, of the offended party.
(U.S. vs. Cas, 14 Phil. 21, 22) But dwelling is aggravating in robbery with violence
against or intimidation of persons because this class of robbery can be committed
without the necessity of trespassing the sanctity of the offended party's house.
Entrance into the dwelling house of the offended party is not an element of the
offense. (People vs. Cabato, No. L-37400, April 15, 1988, 160 SCRA 98, 110; People
vs. Apduhan, Jr., No. L-19491, Aug. 30, 1968, 24 SCRA 798, 815; People vs. Valdez,
64 Phil. 860, 867)
Note: There are two kinds of robbery: (1) robbery with violence against or intimidation
of persons; and (2) robbery with force upon things in inhabited house. (Arts. 294 and
299)
3. In the crime of trespass to dwelling, it is inherent or included by law in defining the
crime. This crime can be committed only in the dwelling of another.
4. When the owner of the dwelling gave sufficient and immediate provocation.
5. When the dwelling where the crime was committed did not belong to the offended
party. Thus, when the accused, upon hearing that their sister was dead, went to her
house, and then and there, upon seeing their sister lying on the floor with her head
resting on the lap of her paramour, and thinking that the latter had killed her, attacked
and killed him, the aggravating circumstance of dwelling cannot be considered against
the accused. The dwelling did not belong to the paramour, the person whom they
killed. (People vs. Guhiting, 88 Phil. 672, 675)
59
6. When the rape was committed in the ground floor of a two-story structure, the lower
floor being used as a video rental store and not as a private place of abode or
residence. (People vs. Tano, G.R. No. 133872, May 5, 2000)
Dwelling was found aggravating in the following cases although the crimes were
committed not in the dwelling of the victims.
1. The victim was raped in the boarding house where she was a bedspacer. Her room
constituted a "dwelling" as the term is used in Article 14(3) of the Revised Penal Code.
(People vs. Daniel, No. L-40330, Nov. 20, 1978, 86 SCRA 511, 531)
2. The victims were raped in their paternal home where they were guests at the time and
did not reside there. (2 CAR [2s] 675)
3. The victim was killed in the house of her aunt where she was living with her niece.
Dwelling was considered aggravating because dwelling may mean temporary
dwelling. (People vs. Badilla, G.R. No. 69317, May 21, 1990, 185 SCRA 554, 570)
4. 4. The victims, while sleeping as guests in the house of another person, were shot to
death in that house. Dwelling was held aggravating. The Code speaks of "dwelling,"
not domicile. (People vs. Basa, 83 Phil. 622, 624)
Adultery is committed by a married woman who shall have sexual intercourse with a man
not her husband and by the man who has carnal knowledge of her, knowing her
to be married. (Art. 333, Revised Penal Code)
● Dwelling is aggravating when the husband killed his estranged wife in the house
solely occupied by her other than the conjugal home.
● When adultery is committed in the dwelling of the husband, even if it is also the
dwelling of the unfaithful wife, it is aggravating because besides the latter's breach of
the fidelity she owes her husband, she and her paramour violated the respect due to
the conjugal home and they both thereby injured and commited a very grave offense
against the head of the house. (U.S. vs. Ibanez, 33 Phil. 611, 613)
● if both the defendants (the wife and her paramour) and the offended party were living
in the same house because the defendants had a right to be in the house.
● Dwelling is not included in treachery.
Paragraph 4: ‘That the act be committed with (1) abuse of confidence, or (2) obvious
ungratefulness.’
BASIS: greater perversity of the offender, as shown by the means and ways employed
● Two mitigating circumstances are provided in this paragraph:
○ Abuse of confidence
○ obvious ungratefulness
1. Abuse of confidence
● exists only when the offended party has trusted the offender who later abuses
such trust by committing the crime.
● must be a means of facilitating the commission of the crime, the culprit taking
advantage of the offended party's belief that the former would not abuse said
confidence.
Requisites:
1. That the offended party had trusted the offender.
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2. That the offender abused such trust by committing a crime against the offended
party.
3. That the abuse of confidence facilitated the commission of the crime.
EXAMPLE:
A jealous lover, who had already determined to kill his sweetheart, invited her for a ride
in the country. The girl, unsuspecting of his plans, went with him. While they were in the
car, the jealous lover stabbed her. It was held that this aggravating circumstance was
present. (People vs. Marasigan, 70 Phil. 583, 594)
Confidence does not exist.
EXAMPLE:
1. After preliminary advances of the master, the female servant refused and fled. The
master followed and after catching up with her, threw her on the ground and
committed the crime of rape. When the master raped the offended party, she had
already lost her confidence in him from the moment he made an indecent proposal
and offended her with a kiss.
Held: The confidence must facilitate the commission of the crime, the culprit
taking advantage of offended party's belief that the former would not abuse
said confidence. No aggravating circumstance in this case. (People vs. Luchico,
49 Phil. 689, 697)
2. There is no abuse of confidence in attempted rape where on the day of the crime,
the accused was in the company of the offended girl, not because of her
confidence in him, but because they were partners in a certain business. (People
vs. Brocal, C.A., 46 O.G. 6163)
● Betrayal of confidence is not aggravating.
EXAMPLE:
The offended party was living in the house of the accused, her parents having
entrusted her to the care of said accused. One day, at about 6:30 in the evening,
while the offended party was standing in front of a store watching some children
who were playing, the accused approached her, took her by the arm and forcibly
led her to an isolated toilet, hidden from public view by some tall grasses, and
once in the spot, he intimidated her with a knife and through the use of force and
violence succeeded in having sexual intercourse with her. Held: There is no
showing that the accused was able to commit the crime by abusing the confidence
reposed in him by the offended party. The accused betrayed the confidence
reposed in him by the parents of the girl. But this is not an aggravating
circumstance. It must be an abuse of confidence that facilitated the commission
of the crime which is aggravating. (People vs. Arthur Crumb, C.A., 46 O.G. 6163)
● Killing of child by an amah is aggravated by abuse of confidence.
EXAMPLE:
In the Caliso case, the victim, being a nine-month-old child, could not resist the
commission of the crime. The confidence reposed by the parents of the child in the
offender facilitated the commission of the crime.
● The confidence between the offender and the offended party must be immediate and
personal.
EXAMPLE:
60
In the case of U.S. vs. Torrida, 23 Phil. 189,192, it was held that the mere fact that
the voters had reposed confidence in the defendant by electing him to a public
office does not mean that he abused their confidence when he committed estafa
against them
● Abuse of confidence inherent in some felonies: inherent in malversation (Art. 217),
qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315), and
qualified seduction. (Art. 337)
2. Obvious ungratefulness
● manifest and clear
Circumstance is present
1. the accused who killed his father-in-law in whose house he lived and who partially
supported him. (People vs. Floresca, G.R. Nos. L-8614-15, May 31, 1956, 99 Phil.
1044)
2. the accused was living in the house of the victim who employed him as an
overseer and in charge of carpentry work, and had free access to the house of the
victim who was very kind to him, his family, and who helped him solve his
problems. (People vs. Lupango, No. L-32633, Nov. 12,1981, 109 SCRA 109, 126)
3. where a security guard killed a bank officer and robbed the bank. (People vs.
Nismal, No. L-51257, June 25, 1982, 114 SCRA 487, 494-495)
4. where the victim was suddenly attacked while in the act of giving the assailants
their bread and coffee for breakfast. Instead of being grateful to the victim, at least
by doing him no harm, they took advantage of his helplessness when his two arms
were used for carrying their food, thus preventing him from defending himself from
the sudden attack. (People vs. Bautista, No. L-38624, July 25, 1975, 65 SCRA 460,
470)
5. when a visitor commits robbery or theft in the house of his host.
● that the accused and the offended party live in the same house is not in itself enough to
hold that there was present abuse of confidence where the house was not the property
of the offended party. (People vs. Alqueza, 51 Phil. 817, 819-820)
Paragraph 5: ‘That the crime be committed in the palace of the Chief Executive, or in his
presence, or where public authorities are engaged in the discharge of their duties, or in a
place dedicated to religious worship..’
BASIS: greater perversity of the offender, as shown by the place of the commission of the
crime, which must be respected
Par. 5 Par. 2
Public authorities are engaged in the contempt or insult to public authorities
discharge of their duties
the public authorities are in the performance of their duties
the public authorities who are in the the public authorities are performing their
performance of their duties must be in duties outside of their office
their office
he may be the offended party the public authority should not be the
offended party
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● The place of the commission of the felony (par. 5), if it is Malacahang palace or a church,
is aggravating, regardless of whether State or official or religious functions are being
held.
● The Chief Executive need not be in Malacanang palace. His presence alone in any place
where the crime is committed is enough to constitute the aggravating circumstance.
This aggravating circumstance is present even if he is not engaged in the discharge of
his duties in the place where the crime is committed.
● As regards the place where the public authorities are engaged in the discharge of their
duties, there must be some performance of public functions.
EXAMPLE:
where the accused and the deceased who were respectively plaintiff and
defendant in a civil case in the court of a justice of the peace, having gotten into
some trouble, left the courtroom and went into an adjoining room, where the
accused, without any warning, attacked the deceased with a knife and killed him
on the spot, it has been held that it was error to consider the aggravating
circumstance of having committed the offense in the place where the public
authority was exercising his functions. (U.S. vs. Punsalan, 3 Phil. 260, 261)
The reason for not applying the circumstance was that the court had already
adjourned when the crime was committed, and the attack was made in the
adjoining room, not in the very place where the justice of the peace was engaged
in the discharge of his duties.
● An electoral precinct during election day is a place "where public authorities are
engaged in the discharge of their duties."
● Cemeteries are not such a place, however respectable they may be, as they are not
dedicated to the worship of God. The church is a place dedicated to religious worship.
EXAMPLE:
The aggravating circumstance "that the crime be committed x x x in a place
dedicated to religious worship" was appreciated in a case where the accused shot
the victims inside the church or in a case of unjust vexation where the accused
kissed a girl inside a church when a religious service was being solemnized.
(People vs. Anonuevo, C.A., 36 O.G. 2018; People vs. Dumol, CA-G.R. No.
5164-R, April 4, 1951)
● Offender must have intention to commit a crime when he entered the place.
EXAMPLE:
Facts: At the time of the commission of the crime, both the deceased and
defendant were inside a chapel. The deceased placed his hand on the right thigh
of defendant girl, who pulled out with her right hand a fan knife and stabbed him.
Held: The aggravating circumstance that the killing was done in a place dedicated
to religious worship cannot be legally considered, where there is no evidence to
show that the defendant had murder in her heart when she entered the chapel on
the fatal night. (People vs. Jaurigue, 76 Phil. 174, 182)
This ruling seems to be applicable also in case a crime is committed in
Malacanang palace or where public authorities are engaged in the discharge of
their duties.
61
Paragraph 6: ‘that the crime be committed (1) in the nighttime, or (2) in an uninhabited
place, or (3) by a band, where such circumstance may facilitate the commission of the
offense.
Whenever more than 3 armed malefactors shall have acted together in the commission
of an offense, it shall be deemed to have been committed by a band’
Basis:
● They are based on the time and place of the commission of the crime and means and
ways employed.
The three circumstance under this paragraph may be considered separately:
● when their elements are distinctly perceived;
● can subsist independently;
● revealing a greater degree of perversity
NOTE: SC of Spain (1884): NOT ABSOLUTE AND GENERAL RULE = Constitute only one (1)
aggravating circumstance if they concur in the commission of felony.
Nighttime, uninhabited place or band is aggravating:
● When it facilitated the commission of the crime; or
EXAMPLE:
1. Nighttime may facilitate the commission of the crime, when because of the
darkness of the night the crime can be perpetrated unmolested, or
interference can be avoided, or there would be greater certainty in attaining
the ends of the offender. (People vs. Matbagon, supra)
2. Nighttime facilitated the commission of the crime to such an extent that the
defendant was able to consummate it with all its dastardly details without
anyone of the persons living in the same premises becoming aware of what
was going on. (People vs. Villas, No. L-20953, April 21, 1969, 27 SCRA 947,
952-953)
● When especially sought for by the offender to ensure the commission of the crime or
the purpose of impunity; or
EXAMPLE:
1. The offender especially sought for nighttime, when he sought for it in order
to realize the crime with more ease. (People vs. Aquino, 68 Phil. 615, 618)00
2. But where the accused waited for the night before committing robbery with
homicide, nighttime is especially sought for. (People vs. Barredo, 87 Phil.
800)
3. Nighttime was appreciated against the accused who was living only 150
meters away from the victim's house and evidently waited for nightfall to
hide his identity and facilitate his escape, knowing that most barrio folks are
already asleep, or getting ready to sleep, at 9:00 p.m. (People vs. Baring, G.R.
No. 87017, July 20, 1990, 187 SCRA 629, 636)
4. Nighttime was sought for where the accused lingered for almost three hours
in the evening at the restaurant before carrying out their plan to rob it.
(People vs. Lungbos, No. L-57293, June 21, 1988, 162 SCRA 383, 388)
5. There is sufficient proof that the offenders purposely sought nighttime to
commit the crime. Consider the facts that the accused tried to ascertain
whether the occupants of the house were asleep, thereby indicating the
desire to carry out the plot with the least detection or to insure its
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consummation with a minimum of resistance from the inmates of the house.
(People vs. Atencio, No. L-22518, January 17, 1968, 22 SCRA 88, 102-103)
6. The circumstance of nighttime was aggravating where it is self-evident that
it was sought to facilitate the commission of the offense, when all the
members of the household were asleep. (People vs. Berbal, G.R. No. 71527,
Aug. 10, 1989, 176 SCRA 202, 216)
● when the offender took advantage thereof for the purpose of impunity
○ impunity = to prevent himself from being recognized or to secure himself against
detection and punishment
EXAMPLE:
1. Thus, it was held that the commission of the crime was attended by the
aggravating circumstance of nighttime, because of the silence and darkness
of the night which enabled the offender to take away the girl with
impunity—a thing which undoubtedly the offender could not have done in
the daytime and in sight of people. (U.S. vs. Yumul, 34 Phil. 169, 175)
2. The offender took advantage of any of the circumstances of nighttime,
uninhabited place, or by a band when he availed himself thereof at the time
of the commission of the crime for the purpose of impunity or for the more
successful consummation of his plans.
● nighttime
● The commission of the crime must begin and be accomplished in the nighttime
(according to Art. 13 of the Civil Code, night time = sunset and sunrise)
● Rule: begins 30 minutes after sunset and ends 30 minutes before sunrise.
● The information must allege that nighttime was sought for or taken advantage of by the
accused or that it facilitated the commission of the crime.
● Commission of crime during daytime, no matter how dark it is outside - no aggravating
circumstance of nighttime can be availed
● The commission of the crime must begin and be accomplished in the nighttime.
NIGHTTIME NOT APPRECIATED
● Thus, although the safe was thrown into the bay at night, but the money, the
taking of which constituted the offense, was withdrawn from the treasury
during the daytime, the crime of malversation was not attended by the
aggravating circumstance of nighttime. (U.S. vs. Dowdell, 11 Phil. 4, 7)
● The offense must be actually committed in the darkness of the night.
NIGHTTIME NOT APPRECIATED
● Thus, when the defendants did not intentionally seek the cover of darkness
for the purpose of committing murder and they were carrying a light of
sufficient brilliance which made it easy for the people nearby to recognize
them (U.S. vs. Paraiso, 17 Phil. 142,146-147), or when the crime of robbery
with homicide was committed at daybreak when the defendants could be
recognized (U.S. vs. Tampacan, 19 Phil. 185, 188), nighttime is not
aggravating.
● When the place of the crime is illuminated by light, nighttime is not aggravating.
62
NIGHTTIME NOT APPRECIATED
● The fact that the scene of the incident was illuminated by the light on the
street as well as that inside the vehicle of which the victim was a passenger,
negates the notion that accused had especially sought or had taken
advantage of nighttime in order to facilitate the commission of the crime of
theft or for purposes of impunity. (People vs. Joson, C.A., 62 O.G. 4604)
● Although the offense was committed at nighttime, the record does not show
that appellant had sought it purposely or taken advantage thereof to
facilitate the perpetration of the offense. In fact, the place from which he fired
at Laguna seemed to be sufficiently lighted for him to be clearly visible to, as
well as recognized by, all of those who happened to be nearby. (People vs.
Bato, G.R. No. L-23405, Dec. 29, 1967, 21 SCRA 1445, 1448)
● Nocturnity is not aggravating where there is no evidence that the accused
had purposely sought the cover of the darkness of the night to commit the
crime; nor is there evidence that nighttime facilitated the commission of the
crime, aside from the fact that the scene of the crime was illuminated.
(People vs. Moral, No. L-31139, Oct. 12,1984, 132 SCRA 474, 487. Also,
People vs. Turing, G.R. No. 56358, Oct. 26, 1990, 191 SCRA 38, 47; People
vs. Aspili, G.R. Nos. 89418-19, Nov. 21, 1990, 191 SCRA 530, 543)
● By and of itself, this is not an aggravating circumstance.
○ Should be especially sought by the offender
○ but where the darkness of the night was merely incidental to the crime, it is not
aggravating
● The offense must actually be committed in the darkness of the night.
● When the place is well lit even though it’s night, nighttime is not aggravating.
● Nighttime may be absorbed by treachery depending on the circumstances.
● Nighttime need not be specifically sought for when:
○ The offender purposely took advantage of nighttime
○ It facilitated the commission of the crime
**Two tests:
Objective = aggravating bec. it facilitated the commission of the crime
Subjective = aggravating bec. it was sought to afford impunity
Although nocturnity should not be estimated as an aggravating circumstance, since the time
for the commission of the crime was not deliberately chosen by the accused; yet, if it appears
that the accused took advantage of the darkness for the more successful consummation of
his plans, to prevent his being recognized, and that the crime might be perpetrated
unmolested, the aggravating circumstance of nocturnity should be applied.
To take advantage of a fact or circumstance in committing a crime clearly implies an intention
to do so, and one does not avail oneself of the darkness unless one intended to do so.
NOT aggravating when
● the darkness of the night was merely incidental.
○ To be aggravating: the prosecution must show that the accused purposely sought
to commit the crime at nighttime in order to facilitate the achievement of his
objectives, prevent discovery, or evade capture.
● the crime began at daytime; commission of crime during daytime, no matter how dark it
is outside is not aggravating
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● When the place of the crime is illuminated by light
● There is no evidence that the accused had purposely sought the cover of the darkness
of the night to commit the crime; nor is there evidence that nighttime facilitated the
commission of the crime, aside from the fact that the scene of the crime was
illuminated.
● uninhabited place
● one where there are no houses at all, a place at a considerable distance from town, or
houses are scattered at a great distance from each other
● This is not purely determined by the distance of the nearest house to the scene of the
crime but whether in the place of the commission of the crime, there was a reasonable
possibility of the victim receiving some help.
● The offenders must have sought the solitude of the place to better attain his purpose or
as an aid either:
o To an easy and uninterrupted accomplishment of their criminal designs
o To ensure concealment of the offense, that he might thereby be better secured
against detection and punishment
EXAMPLE:
1. The purely accidental circumstance that on the day in question another
banca, namely, that of the witnesses for the prosecution, was also at sea, is
not an argument against the consideration of such aggravating circumstance.
It was difficult for the victim to receive any help and it was easy for the
assailants to escape punishment. (People vs. Rubia, 52 Phil. 172, 175-176;
People vs. Arpa, No. L-26789, April 25,1969, 27 SCRA 1037, 1044)
2. A place is aggravating where the felony was perpetrated in the open sea,
where no help could be expected by the victim from other persons and the
offenders could easily escape punishment. (People vs. Nulla, No. L-69346,
Aug. 31,1987,153 SCRA 471, 483)
3. The fact that persons occasionally passed in the uninhabited place and that
on the night of the murder another hunting party was not a great distance
away, does not matter. It is the nature of the place which is decisive. (People
vs. Bangug, 52 Phil. 87, 92)
4. A place about a kilometer from the nearest house or other inhabited place is
considered an uninhabited place. (People vs. Aguinaldo, 55 Phil. 610, 616;
People vs. Mendova, 100 Phil. 811, 818)
5. With the finding of the body of the victim in a solitary place off the road and
hidden among the trees and tall grasses on a hill, some 500 meters away
from the toll gate where help to the victim was difficult and the escape of the
accused seemed easy, it is correct to appreciate the aggravating circumstance
of uninhabited place. (People vs. Atitiw, C.A., 66 O.G. 4040)
6. The killing was done in Barrio Makatipo, Novaliches, Caloocan City, an
isolated place that resembled that of an abandoned subdivision. The place
was ideal not merely for burying the victim but also for killing him for it was a
place where the possibility of the victim receiving some help from third
persons was completely absent. The accused sought the solitude of the
place in order to better attain their purpose without interference, and to
secure themselves against detection and punishment. (People vs. Ong, No.
L-34497, Jan. 30, 1975, 62 SCRA 174, 212-213)
● The offender must take advantage of the calamity or misfortune.
63
● Solitude must be sought to better attain the criminal purpose.
WHEN UNINHABITED PLACE IS NOT APPRECIATED:
1. Where the crime was committed could be seen and the voice of the deceased
could be heard from a nearby house. (People vs. Laoto, 52 Phil. 401, 408)
2. Hence, this aggravating circumstance is not present even if the crime was
committed in an uninhabited place, if the offended party was casually
encountered by the accused and the latter did not take advantage of the
place or there is no showing that it facilitated the commission of the crime.
(People vs. Luneta, 79 Phil. 815, 818)
3. The aggravating circumstance of uninhabited place cannot be considered
against the defendants, although the house nearest to the dwelling of the
victim was about a kilometer away, if the defendants did not select the place
either to better attain their object without interference or to secure
themselves against detection and punishment. (People vs. Deguia, 88 Phil.
520, 526)
● by a band (cuadrilla)
● A band is whenever more than three (at least 4) armed malefactors shall have acted
together in the commission of an offense.
○ even if there are 20 persons, but only 3 are armed, “by a band” cannot be
considered.
○ “Stone” is included in the term “arms”.
● Presupposes the presence of a conspiracy
● If one of the four armed men is a principal by inducement, they do not form a band
(Gamara v Valero); may be considered as with the aid of armed men.
Requisites
1. There are at least four persons
2. At least four of them should be armed
3. All four are principals by direct participation
● Aggravating in crimes against persons (robbery with homicide), property, illegal
detention, or treason but NOT chastity (Rape)
● Abuse of superior strength is absorbed in Band
● This aggravating circumstance is absorbed in the circumstance of abuse or superior
strength.
● This is inherent in brigandage.
● Aggravating in robbery with homicide
● The armed men must have acted together in the commission of the crime.
Paragraph 7: ‘That the crime be committed on the occasion of a conflagration, shipwreck,
earthquake, epidemic, or other calamity or misfortune.’
Basis
● to the time of the commission of the crime
● The rationale for this aggravating circumstance is the debased form of criminality of one
who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their
suffering by taking advantage of their misfortune and despoiling them.
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○ If the accused was provoked by the offended party to commit the crime during the
calamity of misfortune, this AC may not be taken into consideration for the purpose
of increasing the penalty because the accused did not take advantage of it.
● “Or other calamity or misfortune” refers to other conditions of distress similar to
“conflagration, shipwreck, earthquake, or epidemic.”
● “Chaotic condition” (resulting from war or the liberation of the PH during the last WW)
may be included in this paragraph.
● Theft during calamity will not be aggravated by par. 7, but be aggravated by a
qualifying aggravating circumstance which is Qualified Theft
**as per Judge Boom, Theft during calamity will not be aggravated by par. 7, but be
aggravated by a qualifying aggravating circumstance which is Qualified Theft
Paragraph 8: ‘That the crime be committed with the aid of armed men or persons who
insure or afford impunity.’
Basis
● means and ways of committing the crime
Requisites
1. That the armed men or persons took indirect part in the commission of the crime
2. That the accused availed himself of their aid or relied upon them when the crime
was committed
3. There must be at least two armed men
4. The armed men are mere accomplices
5. When at least one of the offenders merely relied on their aid for actual aid is not
necessary
Application
● GENERAL RULE: The casual presence of armed men near the place where the crime
was committed does not constitute an aggravating circumstance when it appears that
the accused did not avail himself of their aid and rely upon them to commit the crime.
● The armed men took part in the commission of the crime in a minor capacity, directly or
indirectly, as mere accomplices.
EXAMPLE: In the house near the place where the crime was committed, there were 10
men armed with daggers, and five without arms, but these men took no part, directly or
indirectly in the commission of the crime, and it does not appear that they heard the
conversation which caused the sudden determination on the part of the accused to kill
the deceased. The accused did not avail himself of their aid or rely upon them to commit
the crime. (US vs. Abaigar)
● Must not appear that the offender and those armed men acted under the same plan and
for the same purpose, otherwise there will be conspiracy.
● Armed men must not constitute a cuadrilla, otherwise it will be “by a band”
This is not applicable:
● When both the attacking party and the offended party were equally armed
● When the accused as well as those who cooperated with him in the commission of the
crime acted under the same plan and for the same purpose
● Casual presence, or when the offender did not avail himself of their aid nor knowingly
count upon their assistance in the commission of the crime
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By a Band With the Aid of Armed Men
Requires more than three (3) armed Must be at least two (2) armed persons
malefactors (4 = cuadrilla)
Must be at least two (2) armed persons Present even if one of the offenders merely
relied on their aid, for actual aid is not
necessary.
Band members are all principals Armed men are mere accomplices
EXAMPLE:
1. A, in order to get rid of her husband, secured the services of other Moros by
promising them rewards and had them kill her husband. In accordance with the
plan, they armed themselves with clubs, went to the house of the victim and
clubbed him to death while A held a lighted lamp. A also supplied them with rope
with which to tie her husband. A committed parricide with the aid of armed men.
2. O and L were prosecuted for robbery with rape. It appeared from their written
confessions that they had companions who were armed when they committed the
crime.
Paragraph 9: ‘That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall have been previously
convicted by final judgment of another crime embraced in the same title or this Code.’
Basis
● greater perversity of the offender, as shown by his inclination to crime.
Requisites for recidivist (Reincidencia)
1. That the offender is on trial for an offense
2. That he was previously convicted by final judgment of another crime
3. That both the first and second offenses are embraced in the same title of the RPC
4. That the offender is convicted of the new offense
● In recidivism, the crimes committed should be felonies.
○ There is no recidivism if the crime committed is a violation of a special law.
○ What is controlling is the time of the trial, not the time of the commission of the
crime in that there was already a conviction by final judgment of at the time of the
trial for the second crime
● What is required is previous conviction at the time of the trial.
○ The best evidence of a prior conviction is a certified copy of the original judgment
of conviction.
○ Such evidence is always admissible and conclusive unless the accused denies his
identity with the person convicted at the former trial.
● At the time of the trial means from the arraignment until after the sentence is
announced by the judge in open court.
● Recidivism does not prescribe.
● Pardon does not erase recidivism, even if it is absolute because it only excuses the
service of the penalty, not the effects of the offense (conviction).
● The rationale of recidivism as an aggravating circumstance is the proven tendency to
commit a similar offense.
● If the offender has already served his sentence and he was given amnesty:
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○ The amnesty shall erase the conviction including recidivism because there is no ● Requirement: a certified true copy of the sentence of the accused be attached and
more conviction and penalty submitted to the court for the proper appreciation of habituality.
○ Recidivism is erased as long as amnesty was given
● Probation extinguishes the criminal liability of the accused. Will the accused be ILLUSTRATION:
considered as a recidivist? YES. Extinction of criminal liability does not include the - The accused was convicted of homicide, less serious physical injuries, and slight
obliteration of the fact of prior conviction. physical injuries all committed on January 14, 1979
● Recidivism does not prescribe. There is recidivism even if the lapse of time between two - He was found by the trial court to have committed offenses prior and after that
felonies is more than 10 years. date, as follows:
● NO RECIDIVISM: if the subsequent conviction is for an offense committed before the ▪ Prior to January 1979: arrested and accused of crime of theft
offense involved in the prior conviction. ▪ May 15, 1973: charged for physical injuries (amicably settled)
○ Ex. The accused was convicted of robbery with homicide committed on Dec. 23, ▪ January 15, 1973: charged and convicted with the crime of theft
1947. He was previously convicted of theft committed on Dec. 30, 1947. ▪ Charged and convicted with another criminal case
● “previously convicted by final judgement”: ▪ Charged with theft but was amicably settled
○ Rule 120, Sec 7 Revised Rules of Crim Pro: except where the death penalty is ▪ October 30, 1982: charged and convicted for theft
imposed, a judgement in criminal case becomes final: - Habituality or reiteracion is not attendant in this case. Why? It is essential that
● After the lapse of the period for perfecting an appeal, or the offender be previously punished (has served the sentence) for an equal or
● When the sentence has been partially or totally satisfied or served, or greater penalty than that attached to the 2nd offense, or for two or more offenses in
● The accused has waived in writing his right to appeal, or which the law attaches a lighter penalty. The records did not disclose that the
● The accused has applied for probation. accused has been previously punished.
● Rule 120, Sec 6, provides that an appeal must be taken within 15 days from
promulgation or notice of the judgement or order appealed from.
● The conviction for the offense must already be final at the time of the trial for the
subsequent crime embraced in the same title for recidivism to be properly appreciated.
● If the case is on appeal, it is not proper for the trial court to consider reincidencia as AC
● The present crime and the previous crime must be “embraced in the same title of RPC.
● Except: In a usury case where the accused was previously convicted of the same
offense. Under its Art. 10, RPC should be deemed as supplementing special laws of a
penal character.
● There is no recidivism if the crime committed is a violation of a special law.

EXAMPLES OF CRIMES EMBRACED IN THE SAME TITLE OF RPC

Title 10 – Crimes against property = robbery and theft
Title 8 – Crimes against persons = homicide and physical injuries

Paragraph 10: ‘That the offender has been previously punished for an offense to which Four Forms of Repetition:
the law attaches an equal or greater penalty or for two or more crimes to which it ● Recidivism under Article 14(9)
attaches a lighter penalty.’ ● Repetition (Reiteracion) under Article 14(10) – the offender has been previously
Basis (same with recidivism) punished for an offense to which the law attaches an equal or greater penalty or for two
● greater perversity of the offender, as shown by his inclination to crime. or more crimes to which it attaches a lighter penalty.
● Habitual delinquency under Article 62(5) – the offender within a period of 10 years
Requisites of habituality (reiteracion) from the date of his last release or conviction of the crimes of serious or less serious
1. That the accused is on trial for an offense physical injuries, robbery, theft, estafa, or falsification, is found guilty of any of the said
2. That he previously served sentence for crimes a third time or oftener.
a. Another crime to which the law attaches an equal or greater penalty; OR ● Quasi-recidivism under Article 160 – any person who shall commit a felony after
b. for two or more crimes to which it attaches lighter penalty than that for the having been convicted by final judgment before beginning to serve such sentence or
new offense while serving such sentence shall be punished by the maximum period prescribed by
3. That he is convicted of the new offense law for the new felony.

● The previous and subsequent offenses do not have to be embraced in the same title of RECIDIVISM REITERACION
the Code.

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Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
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necessary that the offender shall have it is enough that a final judgement has
served out his sentence for the first offense been rendered in the first offense
previous and subsequent offenses must requires that the offenses be included in
not be embraced in the same title of the the same title of the Code
Code
not always aggravating circumstance always to be taken into consideration in
fixing the penalty to be imposed upon the
accused
RECIDIVISM AND HABITUAL DELINQUENCY CANNOT BE APPRECIATED TOGETHER
● In recidivism or habituality, it is essential that the offender be previously punished and
that he has served his sentence.
● It is not always an aggravating circumstance.
● The rationale behind this is the proven resistance to rehabilitation.
● This paragraph speaks of a penalty attached to the offense, not the penalty actually
imposed.
○ Even if the accused served the penalty of prision mayor in its minimum period and
is now convicted of an offense for which the penalty of prision mayor maximum is
imposed, there is still habituality, provided that the penalty attached to the two
offenses is prision mayor in its full extent.
Paragraph 11: ‘That the crime be committed in consideration of a price, reward, or
promise.’
Basis
● greater perversity of the offender, as shown by the motivating power itself.
● In this aggravating circumstance, there must be two or more principals.
○ The one who offers the price or promise as he directly induces the latter to commit
the crime
○ The one who accepts it as he commits the crime
● Affects (equally) not only the person who received the price or the reward but also the
person who gave it.
● If the price, reward or promise is alleged in the information as a qualifying aggravating
circumstance, it shall be considered against all the accused.
● Evidence must show that one of the accused used the money or valuable consideration
for the purpose of inducing another to perform the deed.
● If without previous promise it was given voluntarily after a crime was committed as an
expression of his appreciation for the sympathy and aid shown by the other accused, it
should not be taken into consideration for the purpose of increasing the penalty.
● The price, reward, or promise need not consist of material things or that the same be
actually delivered.
● It is sufficient that the offer made by the principal by inducement was accepted by the
principal by direct participation before the commission of the crime.
● Only applies to the principal by direct participation
EXAMPLE: P procured an ignorant man to kill the brother and grandniece of P for a
reward of P60. The ignorant man, following the instruction of P, killed them. HELD:
Murder by inducement of a price is committed
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Paragraph 12: ‘That the crime be committed by means of inundation, fire, poison,
explosion, stranding of a vessel or intentional damage thereto, derailment of a
locomotive, or by use of any other artifice involving great waste and ruin.’
Basis
● means and ways employed
● Unless used by the offender as a means to accomplish a criminal purpose, any of the
circumstances under this paragraph cannot be considered to increase the penalty or to
change the nature of the crime.
EXAMPLE: A killed his wife by means of fire, as when he set their house on fire to kill
her, or by means of poison, which he mixed with the food of his wife. In any of these
cases, there is only a generic aggravating circumstance, because they cannot qualify the
crime.
● When another aggravating circumstance already qualifies the crime, any of these shall
be considered a generic aggravating circumstance only.
● There is no such crime as murder with arson or arson with homicide. The crime is only
murder.
○ If the intent is to destroy property, the crime is arson even if someone dies as a
consequence.
○ If the intent is to kill, there is murder even if the house is burned in the process.
● By means of fire:
o No actual design to kill: it is plain arson, even if a person is killed; not even
homicide, it being absorbed.
o Purpose is to kill: burned the house where the latter was, and the victim died as
a consequence, the crime is murder, qualified by the circumstance that the crime
was committed “by means of fire”
o House was set on fire after the killing of the victim, there would be two
separate crimes: arson and murder/homicide, with AC of by means of fire.
● By means of explosion:
o Hand grenade is thrown into the house where a family of seven persons live,
and as a result of the explosion, the wall of the house is damaged, endangering
the lives of the people there. The offense is a crime involving destruction.
o If one died but no intent to kill: crime involving destruction with max penalty
o IF with intent to kill: murder
● By means of derailment of locomotive:
o Art 330: defines and penalizes the crime of damage to means of communication,
derailment of cars, collision or accident must result from damage to a railway,
telegraph or telephone lines.
o Derailment of cars, only property was damaged: Art. 330 crime of damage to
means of communication
o Death with NO intent to kill – complex crime of damage to means of
communication with homicide
o Death with intent to kill – murder
● Art. 62 (1): when the AC is included by the law in defining the crime, it shall not be
taken into consideration for the purpose of increasing the penalty.
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Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
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● If the circumstances are already a part of a particular crime, they do not serve to
increase the penalty, because they are already included by the law in defining the
crimes.
Par. 12 Par. 5
The crime is committed by means of any of The crime is committed on the occasion of
such acts involving great waste or ruin. a calamity or misfortune
Paragraph 13: ‘That the act be committed with evident premeditation.’
Basis
● reference to the ways and means of committing the crime because evident
premeditation implies a deliberate planning of the act before executing it.
Requisites
1. The time when the offender determined to commit the crime
a. lapse is computed from the time when the offender determined to commit
the crime
2. An act manifestly indicating that the culprit has clung to his determination
a. must be based on external acts
b. the criminal intent evident from outward acts must be notorious and
manifest
c. determination must be plain and have been adopted after mature
consideration on the part of the persons who conceived and resolved
upon the perpetration of the crime, as a result of
i. deliberation
ii. meditation, and
iii. reflection sometime before its commission
3. A sufficient lapse of time between the determination and execution to allow him to
reflect upon the consequences of his act and to allow his conscience to overcome
the resolution of his will
● Evident premeditation implies deliberate planning of the act before executing it.
● The criminal act must be preceded by cool thought and reflection of the resolution to
carry out the criminal intent during the space of time sufficient to arrive at a calm
judgment.
● The premeditation must be based on external facts and must be evident, not merely
suspected indicating deliberate planning.
● GENERAL RULE: Conspiracy generally presupposes premeditation. Where conspiracy is
directly established with proof of attendant deliberation and selection of the method,
time, and means of executing the crime, the existence of evident premeditation may be
taken for granted.
● EXCEPTION: If conspiracy is only implied, it may not be appreciated in the absence of
proof as to how and when the plan to kill the victim was hatched or what time had
elapsed before it was carried out.
● It may only be presumed only where conspiracy is directly established, not when the
conspiracy is only implied
● Evident premeditation is inherent in robbery, adultery, estafa, and falsification.
● It may be aggravating in robbery with homicide if the premeditation included the killing
of the victim.
● Evident premeditation is not appreciated when:
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○ Inherent element of the crime
○ Attack was made in the heat of anger
○ Meeting of the accused and victim was a chance encounter and not sought on
purpose
● Must have direct evidence, otherwise it cannot be considered.
● Proof of alleged resentment does not constitute conclusive proof of EP
An act manifestly indicating that the culprit has clung to his determination
● Indicia of determination
○ when the crime was carefully planned by the offenders
○ when the offenders previously prepared the means which they considered
adequate to carry it out
○ when a grave was prepared at an isolated place in the field for the reception of the
body of the person whom the criminals intended to kill
○ when the defendants made repeated statements that the hour of reckoning of the
victim would arrive and armed themselves with deadly weapons
○ when the defendant commence to sharpen his bolo on the afternoon preceding the
night of the crime
○ when the defendant, according to his own confession, three times attempted to
take the life of the deceased in order to be able to marry his widow, with whom he
was in love
○ where the accused repeatedly plotted the commission of the murder over a period
of several weeks and, on at least two occassions, made preliminary efforts to carry
it out.
● Mere threats without the second element does not show evident premeditation
● Existence of ill-feeling or grudge alone is not proof of evident premeditation
A sufficient lapse of time between the determination and execution to allow him to
reflect upon the consequences of his act and to allow his conscience to overcome the
resolution of his will
● Offender must have an opportunity to coolly and serenely think and deliberate on the
meaning and consequences of what he planned to do, an interval long enough for his
conscience and better judgement to overcome his evil desire and scheme
● There must be sufficient time between the outward acts and the actual commission of
the crime
Paragraph 14: ‘That craft, fraud, or disguise be employed.’
Basis
● means employed in the commission of the crime.
● Characterized by the intellectual or entail rather than the physical means to which the
criminal resorts to carry out his design
● It is employed as a scheme in the execution of the crime.
● Craft
● This involves intellectual trickery and cunning on the part of the accused.
● The act of the accused done in order not to arouse suspicion
● Fraud and craft may be absorbed in treachery if they have been deliberately
adopted as the means, methods, or forms of treacherous strategy.
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Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
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● They may co-exist independently where they are adopted for a different purpose
in the commission of the crime.
● Craft is NOT attendant where the unlawful scheme could have been carried out
just the same even without the pretense.
● Fraud
● Insidious words or machinations used to induce the victim to act in a manner which
would enable the offender to carry out his design
● Such as where defendants induced their victims to give up their arms upon a
promise that no harm should be done to them.
● Disguise (Disfraz)
● The purpose of the offender in using any device must be to conceal his identity.
● Resorting to any device to conceal identity
● Offender was intended to or did make identification more difficult.
● Use of an assumed name in publication of libel constitutes disguise
DISGUISE IS APPRECIATED IN THE FOLLOWING INSTANCES
1. The fact that the defendant had his face blackened in order that he should not be
recognized at the time he committed the crime constitutes the aggravating
circumstance of disguise. (U.S. vs. Cofrada, 4 Phil. 154, 157)
2. When the defendant covered his face with handkerchief before committing the
crime, the aggravating circumstance of disguise is present. (People vs. Piring, 63
Phil. 546, 553)
3. But if in spite of the use of handkerchief to cover their faces, the culprits were
recognized by the victim, disguise was not considered aggravating. (People vs.
Sonsona, G.R. No. L-8966, May 25,1956)
4. The accused with two others wore masks to cover their faces. There could have
been no other purpose for this but to conceal their identities particularly for the one
who was very much known to the offended parties. The fact that the mask
subsequently fell down thus paving the way for this one's identification does not
render the aggravating circumstance of disguise inapplicable. (People vs. Cabato,
No. L-37400, April 15,1988, 160 SCRA 98, 110)
5. In a case where the defendant illegally wore a Constabulary uniform, it was held
that the aggravating circumstance of disguise was present. (People vs. Gonzalez,
56 Phil. 842 [unrep.])
6. The use of an assumed name in the publication of a libel constitutes disguise.
(People vs. Adamos, C.A., G.R. No. 43808, Aug. 20,1936)
INSTANCES WHEN DISGUISE IS NOT CONSIDERED
1. It is also worth mentioning that while appellant reportedly had a sort of a mask
and was using sunglasses, these clumsy accouterments could not constitute the
aggravating circumstance of disguise. Legally, disfraz contemplates a superficial
but somewhat effective dissembling to avoid identification. Here, even if it is true
that he assumed that masquerade, appellant was readily recognizable because his
face could easily be seen together with the identifying feature of his mustache.
(People vs. Reyes, G.R. No. 118649, March 9, 1998)
68
2. While it appears that some of the offenders had cloths wrapped about their heads,
it does not appear that this was done as a disguise, but was following rather the
custom of the country in which they had been reared. (U.S. vs. Rodriguez, 19 Phil.
150, 156)
3. The act of the accused in disguising herself by using her husband's clothes and a
hat given to her by her companion before they continued on their way to the place
where she killed the deceased, was not considered aggravating circumstance of
disguise, because she did it for fear of being attacked on the way. (U.S. vs.
Guysayco, 13 Phil. 292, 293, Examples 296)
4. The malefactors resorted to a disguise. That circumstance did not facilitate the
consummation of the killing. Nor was it taken advantage of by the malefactors in
the course of the assault. According to the prosecution's version, at the incipiency
of the attack, the accused and his companions did not camouflage their hostile
intentions. They announced their presence at the scene of the crime with shouts
and gunshots. That mode of attack counteracted whatever deception might have
arisen from their disguise. (People vs. Cunanan, No. L-30103, Jan. 20, 1977, 75
SCRA 15, 23)
Fraud Craft
Direct inducement by insidious words or Act of the accused in order not to arouse
machinations suspicion of the victim
Paragraph 15: ‘That advantage be taken of superior strength, or means be employed to
weaken the defense.’
● To take advantage of superior strength means to use purposely excessive force out of
proportion to the means of defense available to the persons attacked.
● Superiority may arise from the aggressor’s sex, build, weapon, or number as compared
to that of the victim.
● There is no advantage of superior strength:
○ When one who attacks is overcome with passion or obfuscation
○ When quarrel arose unexpectedly and the fatal blow was stuck while the victim
and the accused were struggling
● Abuse of superior strength does not take into account the number of aggressors nor the
fact that they are armed but their relative physical might vis-à-vis the offended party.
● Mere number is not enough, they must act in such a way as to weaken the defense
● Superior strength: there must be a notorious inequality
● “Means employed to weaken defense” applies only to crimes against persons and
sometimes against persons and property such as robbery with physical injuries or
homicide.
● The means must not totally eliminate possible defense of the victim, otherwise it will
fall under treachery.
Paragraph 16: ‘That the act be committed with treachery (alevosia)’
Definition; Treachery
● Treachery: When the offender commits any of the crimes against person, employing
means, methods, or forms of 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.
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Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
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○ In short, treachery means that the offender party was not given an opportunity to
make a defense.
○ When the attack was sudden, unexpected, and without warning, and without
giving the victim the chance to defend himself, there is treachery.
Requisites
1. That at the time of the attack, there was an employment of means, methods,
and forms of execution where the victim was not in a position to defend
himself; and
2. That the offender consciously adopted the particular means, methods, and
forms of attack employed by him.
Rules Regarding Treachery
● It is only applicable to CRIMES AGAINST PERSONS
● Means, methods and forms need not insure the accomplishment of the crime.
○ It is sufficient that it insures its EXECUTION
● The mode of the attack must be consciously adopted
Treachery cannot be presumed
● Mere suddenness of the attack by itself does not support the finding of treachery.
● Treachery must be proven by clear and convincing evidence (People v. Santos)
○ EXCEPTIONS:
■ When the victim is tied elbow-to-elbow (US v. Santos)
■ Adult killing a child even if the manner of the attack was not shown (People
v. Retubado)
INSTANCES WHERE TREACHERY IS NOT PRESENT
1. The assailant was alone and the victim had 4 companions nearby who could
instinctively respond upon seeing their injured companion (People v. Velaga Jr.)
2. Where no witness would have seen how the deceased was shot was presented
(People v. Tiozon)
3. Where the witnesses to the attack did not see how it all began, and could not
provide details on how the initial attack commenced, and how it developed until
the victim fell to the ground, at which time he saw the fallen victim being beaten
(People v. Narit)
4. Where the attack is not frontal, indicating that the victim was not totally without
opportunity to defend himself (People v. Tugbo, Jr.)
5. Where the court held that the initial assault on the victim was not made in a
sudden, and unexpected manner (People v. Manzano)
6. Where the offender did not camouflage his hostile intention. He announced their
presence at the scene of the crime with shouts and gunshots. (People v. Cunanan)
THE MODE OF ATTACK MUST BE CONSCIOUSLY ADOPTED
1. The accused made some preparations to kill the deceased in a manner as to insure
the execution of the crime or to make it impossible or hard for the person attacked
to defend himself or retaliate (People v. Tumaob)
2. Mode of attack must not spring from an unexpected turn of events (People v. Dauz)
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TREACHERY IS PRESENT IN THE FOLLOWING INSTANCES
1. The act of shooting the victim at a distance, without the least expectation on his
part that he would be assaulted is characterized by treachery (People v. Tamani)
2. Where there is a deliberate surprise attack perpetrated in a manner that there was
no risk on the offender arising from any defense that the victim might make (People
v. Mori)
3. Victim’s hands were already pleading for mercy, when the accused killed the victim
(People v. Recohermoso)
4. Assailant strategically placed himself in a forested area of the highway to kill the
victim (People v. Zapatero)
5. The victim, a woman, was reduced to helplessness before she was shot (People v.
Clementer)
6. Where the victim is unarmed and defenseless, and was not giving any immediate
provocation, was deliberately, and unexpectedly attacked by the offenders (People
v. Sangalang)
7. Shooting the victim while he was urinating on the porch at night (People v.
Manangan)
8. Where the victim was tied and gagged (People v, Ong)
9. Where the attack was committed deliberately, suddenly, and unexpectedly from
behind, and all of the victim’s fatal wounds were on his back (People v. Palencia)
10. Where the victim is on the top of a coconut tree, and the offender started to shoot
at him as if he were a sitting duck (People v. Toribio)
11. The deceased was stabbed without warning, and the victim did not have a chance
to defend himself (People v. Lacao)
12. Where the offenders while riding a motorcycle suddenly shot the victim without
warning and fled the scene of the crime (People v. Clamor)
13. Where the victim was sleeping/resting, and the accused attacked the victim
suddenly, without warning (People v. Las Pinas)
14. Flashing a beam of light to blind the accused in order to facilitate the stabbing
(People v. Paras)
Other reasons as to why Treachery is not considered
● Where there is nothing in the record showing that the accused had pondered upon the
mode or method to insure the killing of the deceased or remove or diminish any risk to
himself that might arise from the defense that the deceased might make (People v.
Macaso)
● Where the victim and the accused met casually, and the attack was impulsively done
● Where the accused gave the victim time to prepare
● Attack is preceded by a warning
○ Calling the attention of the victim is not considered as a warning (People v.
Magdueno)
○ In this case, the offender called the victim “Fiscal,” before shooting him. Court held
that the calling of the victim’s attention was merely done to insure the identity of
the victim.
● No treachery when it was preceded by a heated discussion.
○ This is because the victim had an opportunity to insure their safety immediately
before the attack by merely backing off.
Treachery is appreciated, when the attack shows an intention to eliminate the risk:
● The following attacks indicate this intention
 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
○ Attacking while the victim is asleep; ● In treachery, it makes no difference whether or not the victim was the same person the
○ Attacking while the victim was half-awake, or just awakened offender intended to kill.
○ While the victim is grappling with another person ○ Reason for this rule is that there is treachery so long as the victim is unable to
○ Attacking while the victim is having lunch defend himself, and the means of attack is deliberately chosen by the offender.
○ Being attacked from behind by: ● In conspiracy, treachery is considered against all offenders.
■ a Firearm ● If the intervention of the third person did not directly or indirectly insure the execution of
■ a bladed weapon the crime without the risk to the accused, there is no treachery.
■ Other modes of attack ● Treachery cannot exist with passion and obfuscation. This is because the offender acted
out of impulse, and did not deliberately choose his mode of attack.
Treachery does not connote the element of surprise alone
● In the case of People v. Casalme, the victim had been receiving death threats prior to his Treachery and Abuse of Superior Strength Distinguished
death, so he was not surprised of any attack against him. However, Treachery was TREACHERY ABUSE OF SUPERIOR STRENGTH
appreciated, because the element of surprise is not necessary in treachery. It is sufficient Means, methods, and forms of attack are Offender does not employ means,
that the mode of attack was done to insure the execution of the crime, without risk to employed by the offender to make it methods, and forms of attack, he only
the offender that may arise from the defense that the victim might make. impossible or hard for the offended part to takes advantage of his superior strength
○ The fact that the victim was shot 5 times without warning is therefore sufficient to put up any sort of resistance
attach treachery as an aggravating circumstance.
Treachery and Means Employed to Weaken the Defense Distinguished
Intent to kill is not necessary in murder with treachery
● In the case of People v. Cogco, the court held that the accused who struck another with TREACHERY MEANS TO WEAKEN THE DEFENSE
his fist from behind, and the latter died as a result of the fall is guilty of murder
Means employed prevents the victim to Means employed merely materially
although he did not intend to kill the deceased. This is because the elements of
mount a defense from the attack of the weakens the defense of the victim.
treachery exist: (1) first element is present because the striking of the fists from behind
offender
would insure the execution; and (2) second element is present because the victim
deliberately struck the victim. Since the unlawful killing of another was attended with
treachery, murder was appreciated. Treachery absorbs the following aggravating circumstances (CAAN-ACE)
● Craft
Treachery may exist even if the attack was done face to face ● Abuse of Superior Strength
● Treachery was appreciated even if the attack was made in front of the victim, so long as ● Age and Sex
the attack was sudden, and unexpected, and the attack was consciously adopted by the ● Nighttime
offender to insure the execution of the criem, there is treachery (People v. Noble). ● Aid of Armed Men
● Cuadrilla/Band
Likewise, the mere fact that the attack was done from behind does not always equate to ● Employing means to weaken the defense
treachery
● The mere fact that the attack was inflicted on the back does not constitute treachery, Paragraph 17: ‘That the means be employed or circumstances brought about which add
where there is no proof that the attack was made consciously (People v. Baldos) ignominy to the natural effects of the act’
● The mere fact that wounds were found on the back is not sufficient to support Ignominy; Definition
treachery, when the victim sustained two wounds in the front, and the evidence clearly ● Ignominy is a circumstance pertaining to the moral order, which adds disgrace and
shows that the wounds in the back were the last injuries sustained (People v. Bacho) obloquy to the material injury caused by the crime

It is not always necessary that treacher happen at the beginning of the crime Basis of the Aggravating Circumstance
● When the aggression is continuous, treachery must be at the beginning of the assault ● Basis in on the means employed
● When the assault was not continuous, in that there was an interruption, it is sufficient
that treachery was present at the final moment that the final blow was given. Par 17 is applicable to the following crimes…
● Crimes against chastity
Notes: ● Less serious physical injuries
● Treachery is still applicable even if there is a mistake in identity. (People v. Trinidad) ● Light or grave coercion
● Treachery is not appreciated as to the principal by induction. This is because he did not ● Murder
consciously adopted the means used to kill the victim (US v. Gamao)
○ In this case, treachery is only appreciated to the principal by direct participation.

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 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
EXAMPLES of means employed
1. Ignominy was considered in the crime of Light Coercion, when the offender
embraced and kissed the victim under the impulse of anger, rather than of a desire
to satisfy his lust, and the act was committed in the presence of many persons
(People v. Cantong)
2. The act of “plastering,” mud on the woman’s vagina right after she was raped is
properly described as ignominy (People v. Fernandez)
3. Where the accused wrap cogon grass in his genitals to make the carnal act more
painful in the crime of rape (People v. Torrefiel)
4. Where the victim was forced to kneel in front of his servants before the accused
shot him (US v. De Leon)
Phrase “that … circumstances be brought about”
● Where the victim was raped in front of her husband, or her betrothed (US v. Iglesia)
○ No ignominy if the rape was not perpetrated in the presence or knowledge of the
husband (People v. Mongado)
● There is ignominy when in compelling an old woman to confess to the theft of clothes,
the accused maltreated the old woman and took off her drawers, because the removing
of her drawers could have no other purpose but to put her to shame (People v.
Fernando)
○ Crime committed here is grave coercion
Phrase “which add ignominy to the natural effects of the act”
● Phrase means that the means employed or the circumstances brought about must tend
to make the effect of the crime being more humiliating or to put the offended party to
shame.
EXAMPLES
1. The fact that the offender ordered that victim to exhibit to him her complete
nakedness before raping her, bought about a circumstance which tended to make
the effects of the crime more humiliating (People v. Jose)
2. Where the offender used a flashlight to examine the genitals of the victim before
raping her caused further humiliation to the victim (People v. Bumidang)
3. Where the victim was held by her hair, and the offender inserted the muzzle of his
pistol into her mouth before firing (People v. Nierra)
4. Accused took parts of the victim’s body before killing her (People v. Balondo)
a. It is incorrect to appreciate ignominy when the victim was dismembered
when he is already dead. This is because a dead person can no longer suffer
any humiliation or moral suffering. (People v. Carmina)
No ignominy when the husband was killed in the presence of his wife
● This is because the means employed did not make the crime more humiliating (US v.
Abaigar)
Rape as ignominy in robberry with homicide
● Rape committed on the occasion of robbery with homicide increases the moral evil of
the crime, and it is incorrect to say that there is no law which considers rape as an
aggravating circumstance simply because it is not specifically enumerated in Article 14
of the RPC.
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● In the case of People v. Racaza, the court held that rape, wanton robbery for personal
gain, and other forms of cruelties are condemned and their perpetration will be
regarded as aggravating circumstances of ignominy.
Paragraph 18: ‘That the crime be committed after an unlawful entry’
Basis of Aggravating Circumstance
● Means and ways employed to commit the crime
● One who acts, not respecting the walls erected by men to guard their property and
provide for their personal safety, shows a greater perversity, a greater audacity; hence,
the law punished him with more severity.
Unlawful Entry; definition
● There is an unlawful entry when an entrance is affected by a way not intended for the
purpose.
To effect entrance, not escape
● Unlawful entry must be a means to effect entrance, and not for escape (People v.
Sunga)
ILLUSTRATION
1. The act of entering through the window, which is not the proper place for entrance
into the house, constitutes unlawful entry.
● Q: Is there an unlawful entry when the door is broken, and an entry was
made through the broken door?
● A: No, it will be covered under Article 14(19), instead of 14(18)
INSTANCES WHERE THE AGGRAVATING CIRCUMSTANCE APPLIES
1. Where in order to commit the crime of rape, murder, or robbery with violence
against or intimidation of persons, the accused entered the victim’s house throught
the window
2. Where the information charged was only theft, and the prosecution proved
unlawful entry, it is a generic aggravating circumstance which may raise the
penalty of theft in the maximum period (People v. Sunga)
Dwelling and unlawful entry are taken separately in murders committed in a dwelling
● When the accused gained access to the dwelling by climbing through the window and
once inside, murdered certain persons in the dwelling, two aggravating circumstances
attended the commission of the crime - dwelling and unlawful entry (People v. Barruga)
Unlawful entry is not aggravating in trespass to dwelling
● Trespass to dwelling is committed when a private individual shall enter the dwelling of
another against the latter’s will and may be committed by means of violence (Art. 280,
RPC)
● If the offender entered the dwelling of another through an opening not intended for the
purpose, like the window, the unlawful entry was an integral part to the crime of
trespass (US v Barberan)
Paragraph 19: ‘That as a means to the commission of a crime, a wall , roof, floor, door, or
window be broken’
 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
● Use of motor vehicles is aggravating where the accused used the motor vehicle in going
Basis of the Aggravating Circumstance
● Reference to means and ways employed to commit the crime.
Phrase “As a means to the commission of a crime”
● To be considered as an aggravating circumstance, breaking the wall, roof, floor, door, or
window must be utilized as a means to the commission of the crime.
EXAMPLE
1. Offender broke a window to enable himself to reach a purse with money on the
table near that window;
2. Cutting the canvas of the tent where soldiers are sleeping, and killing the persons
inside. (US v. Matanug)
Aggravating circumstance is only applicable when the wall, roof, door, floor, or window be
broken to effect and entrance
● Because the breaking of the following is necessary to facilitate the commission of the
crime.
Where breaking the door is considered lawful
● Under Rule 113, Section 11, of the Rules of Criminal Procedure, an officer in order to
make an arrest, either in the virtue of a warrant, or without a warrant, may break into
any building or enclosure where the person to be arrested is or is reasonably believed
to be.
● Under Rule 126, Section 7 of the Rules of Criminal Procedure, if the officer is refused
admittance to the place of directed search, after giving notice of his purpose and
authority, may break open any outer or inner door, or window of a house or any part of a
house to execute the warrant.
Paragraph 20: ‘That the crime be committed (1) with the aid of persons under 15 years of
age, or (2) by means of motor vehicles, airships , or other similar means
Basis of the Aggravating Circumstance
● The basis is the means and ways employed to commit the crime.
Two different types of aggravating circumstances are contemplated under paragraph 20
● First one tends to repress as far as possible the frequent practice of criminals to avail
themselves of minors taking advantage of their irresponsibility
● Second one is intended to counteract the great facilities found by modern criminals to
commit crime and flee and abscond once the same is committed.
With aid of persons under 15 years of age
ILLUSTRATION:
A caused B, a 14 year old boy to climb the wall of the house of C to enter through its
window, and steal the valuables of C. The aggravating circumstance in this situation
was with the aid of a person under 15 years of age.
By means of a motor vehicle
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to the place of the crime, in carrying away the effects thereof, and in facilitating their
escape. (People v. Espejo)
Q: May this aggravating circumstance apply if the motor vehicle was used, not as a
means to commit the crime, but only as a means for the flight or concealment of the
offender?
A: According to Judge Guevvara, the use of the motor vehicle is aggravating because the
same furnish a quick means for the flight and concealment of the offender.
Judge P Notes: Case law provides that if the motor vehicle was used only in facilitating
the escape, it should not be an aggravating circumstance. Because if this were the case,
the use of the motor vehicle was merely incidental. (People v. Mil)
Estafa which is committed by means of deceit or abuse of confidence cannot be committed
by means of a motor vehicle
● While it is true that a jeep was used in carting away Vick Vaporub, the court felt that
estafa was not committed through the means of said vehicle. Furthermore, Article
14(20) can only exist if the crime be committed by means of motor vehicles (People v.
Bagtas)
On theft of personal property
● Theft, which is committed by merely taking personal property which need not be carried
away, cannot be committed by means of motor vehicle (People v. Real)
EXAMPLES OF CRIMES COMMITTED BY MEANS OF MOTOR VEHICLES
1. A with the help of B, and with lewd designs, forcibly took and carried away a
woman by means of an automobile to another town. In this case, the crime of
forcible abduction was committed with the aggravating circumstance of motor
vehicle.
2. Use of a motor vehicle was aggravating in theft where a truck was used in carrying
away the stolen rails and iron from the scene of the theft. (People v. Arabia)
3. In robbery with homicide, where a motor vehicle was used in transporting the
accused (People v. Valeriano)
4. Even if the victims voluntarily entered a jeepney, the aggravating circumstance is
appreciated, if the jeep was used to lure the victims and took them to the place
where they were killed (People v. De la Cruz)
5. Where the accused killed the victim while in a taxicab hired by him, the
aggravating circumstance is present (People v. Marasigan)
Phrase or other similar means
● The phrase should be understood as referring to motorized vehicles or other efficient
means of transportation similar to automobiles or airplanes.
○ Therefore, an aggravating circumstance will attach if the crime was committed by
means of a motorcycle, but not that of a bicycle.
Paragraph 21: ‘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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Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
Basis of the aggravating circumstance
● Basis is on the ways employed in committing the crime.
Cruelty; Definition
● There is cruelty when the culprit enjoys and delights in making his victim suffer slowly
and gradually, causing him unnecessary physical pain in the consummation of the
criminal act.
Requisites
1. That the injury caused be deliberately increased by causing another wrong;
2. That the other wrong be unnecessary for the execution of the purpose of the
offender.
Be deliberately augmented by causing other wrong…
● Means that the accused at the time of the commission of the crime had a deliberate
intention to prolong the suffering of the victim.
● Cruelty was not present in a case where the assailant stoned twice the victim, not for
the purpose of increasing his sufferings, but to kill him. (US v. Gasal).
○ Plurality of wounds does not show cruelty. It is necessary to show that the
accused deliberately increased the suffering of the victim (People v. Aguinaldo)
Other wrongs not necessary for its commission
● A and B, who had tied C in the latter’s house, struck him with their guns to make him
point at the place where he was keeping his money. Striking him with their guns, is the
other wrong contemplated by the law, but is necessary for the commission of the crime.
Therefore, there is no aggravating circumstance of cruelty.
● It would be a different story, if A, and B decided to sling their feces in the face of C to
warn and remind the latter of what transpired. In this case, the aggravating
circumstance applies.
Cruelty refers to physical suffering of victim purposely intended by the offender
● Cruelty requires deliberate prolongation of the physical suffering of the victim (People v.
Dayug)
● Cruelty cannot be presumed. Should there be no showing that the wounds found in the
victim were inflicted to prolong his suffering, the aggravating circumstance cannot apply
(People v. Artieda)
Cruelty is considered in murder by burning the mouth of a child
● This is because if the desire of the defendant is to kill the child, he could have carried
out this purpose without compelling the victim to undergo such great suffering and for
so long a time (US v. Oro)
● Cruelty is likewise considered when the accused extracted the eye of the victim and
stuffed mud in his mouth (People v. Mariquina)
There is no cruelty when the victim was already dead when the other wrong was done
● Cutting the extremity of the deceased is not cruelty (People v. Bersabal)
● Where the victim is already dead, when he was set on fire. (People v. Priring)
Ignominy distinguished from cruelty
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IGNOMINY CRUELTY
Involves moral suffering Involves physical suffering
● Rapes, wanton robbery for personal gain, and other forms of cruelties are condemned
and their perpetration will be regarded as aggravating circumstances of ignominy and
cruelty under Article 14(17)(21) of the RPC (People v. Racaza)
Rape as aggravating in robbery with homicide
● Where rape attends the commission of robbery with homicide, the rape should be
deemed to aggravate the robbery with homicide (People v. Basca)
Rape as aggravating in murder
● Since the victim was already at the threshold of death when she was ravished, that
bestiality may be ragarded as a form og ignominy or cruelty because it was unnecessary
to the commission of the crime (People v. Laspardas)
Aggravating circumstances peculiar to certain felonies
EXAMPLES:
1. That the offense of violation of domicile be committed in the nighttime, or if any
papers or effects not constituting to evidence of a crime not be returned
immediately after the search made by the offender;
2. The crime interruption of religious worship shall have been committed with
violence or threats
3. That the crime of direct assault be committed with a weapon, or when the
offender is a public officer or employee, or when the offender lays hands upon a
person in authority
4. If the crime of slavery be committed for the purpose of assigning the offended
party to some immoral traffic, the penalty shall be imposed in the maximum period
5. That the crime of grave threat be made in writing or through a middleman, the
penalty imposed shall be in its maximum period
6. That the crime of robbery with violence or intimidation of persons is committed in
an uninhabited place, or by a band, or on a street, road, highway, or alley, and the
intimidation is made with the use of a firearm, the offender shall be punished by
the maximum period of the proper penalties
7. If the robbery with force upon things is committed in an uninhabited place, and by
a band, it shall be punished by the maximum period of the penalty provided
therefor.
Alternative Circumstances
Definition
● 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.
Basis of alternating circumstances
● Basis is the nature and the effects of the crime and the other conditions attending its
commission.
 CRIMINAL LAW I
Judge Mendinueto – CLASS DISCUSSION AND REYES BOOK
1st Semester S.Y. 2021-2022
Circumstances of justification or exemption which may give place to mitigation.
● Self-defense (Art. 11, par. 1);
● Defense of relatives (Art. 11, par. 2);
● Defense of stranger (Art. 11, par. 3);
● State of necessity (Art. 11, par. 4);
● Performance of duty (Art. 11, par. 5);
● Obedience to order of superior (Art. 11, par. 6);
● Minority over 15 and under 18 years of age (Art. 12, par. 3);
● Causing injury by mere accident (Art. 12, par. 4); and
● Uncontrollable fear. (Art. 12, par. 6)
NOTE: Imbecility, insanity, and minority under the age of 15 cannot give place to mitigation,
because, as stated by the Supreme Court of Spain, the mental condition of a person is
indivisible; that is, there is no middle ground between sanity and insanity, between presence
and absence of intelligence.
BUT if the offender is suffering from some illness which would diminish the exercise of his
will-power, without however depriving him of consciousness of his acts, such circumstance is
considered a mitigation under paragraph 9 of Article 13. It would seem that one who is
suffering from mental disease without however depriving one of consciousness of one's act
may be given the benefit of that mitigating circumstance (ex. Schizophrenia)
CHAPTER V. ALTERNATIVE CIRCUMSTANCES
Article 15. Their concept. — Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature and effects of the crime
and the other conditions attending its commission. They are the relationship, intoxication,
and the degree of instruction and education of the offender.
The alternative circumstance of relationship shall be taken into consideration when the
offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted
brother or sister, or relative by affinity in the same degree of the offender.
The intoxication of the offender shall be taken into consideration as a mitigating
circumstance when the offender has committed a felony in a state of intoxication, if the
same is not habitual or subsequent to the plan to commit said felony; but when the
intoxication is habitual or intentional, it shall be considered as an aggravating
circumstance.
● BASIS: nature and effects of the crime and the other conditions attending its
commission.
THE ALTERNATIVE CIRCUMSTANCES ARE:
1. Relationship
2. Intoxication; and
3. Degree of instruction and education of the offender.
I. RELATIONSHIP
● shall be taken into consideration when the offended party is the:
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○ spouse
○ ascendant
○ descendant
○ legitimate, natural, or adopted brother or sister, or
○ relative by affinity in the same degree of the offender
● The relationship of stepfather or stepmother and stepson or stepdaughter is included
by analogy as similar to that of ascendant and descendant.
- Reason: it is the duty of the stepmother to bestow upon her stepdaughter a
mother's affection, care and protection.
- the effect of the crime of murder committed by the stepmother against her
stepdaughter makes the relationship aggravating.
● The relationship of adopted parent and adopted child may also be included, as similar
to that of ascendant and descendant.
● But the relationship between uncle and niece is not covered by any of the relationships
mentioned
● An element in the crime of parricide.
● Relationship is neither mitigating nor aggravating, when relationship is an element of
the offense
○ When the qualification given to the crime is derived from the relationship
between the offender and offended party, it is neither mitigating nor
aggravating, because it is inseparable from and inherent in the offense.
Examples: Parricide, adultery and concubinage.
RELATIONSHIP IS MITIGATING:
● in crimes against property, by analogy to the provisions of Art. 332.
● crimes of robbery (Arts. 294-302), usurpation (Art. 312), fraudulent insolvency (Art.
314), and arson. (Arts. 321-322, 325-326)
● when the offense committed is less serious physical injuries (Art. 265); or slight
physical injuries (Art. 266), relationship is a mitigating circumstance, if the offended
party is a relative of a lower degree of the offender; Art. 265 and Art. 266 do not
have provisions to the contrary, as in Art. 263.
● Relationship is mitigating in trespass to dwelling.
○ Where a son-in-law, believing his wife to be in her father's house, attempted
to force an entry therein, the relationship is to be considered in mitigation.
(U.S. vs. Ostrea, 2 Phil. 93, 95)
● While the relationship of brothers-in-law is aggravating when one commits a crime
against the other, such relationship is mitigating when the accused killed his
brother-in-law in view of the conduct pursued by the latter in contracting adulterous
relations with the wife of the accused. (U.S. vs. Ancheta, 1 Phil. 30, 32)
- Reason: the conduct of the deceased in having adulterous relations with the
wife of the accused
● in a case where the deceased was suffering from an attack of insanity and the
accused, his brother-in-law, in his desire to place the deceased under control, struck
him with a club, exceeding the limits of his discretion in the heat of the struggle, it
was held that relationship was mitigating because the cause of the maltreatment
was the desire to render service to a relative. (U.S. vs. Velarde, 36 Phil. 991,
992-993)
- Reason: the desire of the accused to render service to a relative