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UP Revised Ortega Lecture Notes I
UP Revised Ortega Lecture Notes I
It is that branch of public substantive law Note that consuls are not diplomatic
which defines offenses and prescribes their officers. This includes consul-general, vice-
penalties. It is substantive because it consul or any consul in a foreign country,
defines the state’s right to inflict punishment who are therefore, not immune to the
and the liability of the offenders. It is public operation or application of the penal law of
law because it deals with the relation of the the country where they are assigned.
individual with the state. Consuls are subject to the penal laws of the
country where they are assigned.
3. Must not partake of the nature of a Territoriality means that the penal laws of
bill of attainder. the country have force and effect only within
its territory. It cannot penalize crimes
4. Must not impose cruel and unusual committed outside the same. This is
punishment or excessive fines. subject to certain exceptions brought about
by international agreements and practice.
The territory of the country is not limited to
Characteristics of Criminal Law the land where its sovereignty resides but
includes also its maritime and interior
1. Generality waters as well as its atmosphere.
All bodies of water comprising the maritime Three international law theories on aerial
zone and interior waters abounding different jurisdiction
islands comprising the Philippine
Archipelago are part of the Philippine (1) The atmosphere over the country is
territory regardless of their breadth, depth, free and not subject to the
width or dimension. jurisdiction of the subjacent state,
except for the protection of its
On the fluvial jurisdiction there is presently national security and public order.
a departure from the accepted International
Law Rule, because the Philippines adopted Under this theory, if a crime is
the Archipelagic Rule. In the International committed on board a foreign
Law Rule, when a strait within a country has aircraft at the atmosphere of a
a width of more than 6 miles, the center country, the law of that country does
lane in excess of the 3 miles on both sides not govern unless the crime affects
is considered international waters. the national security.
the other hand, under Article 26, a fine away with such law, and, therefore, implies
whether imposed as a single or an a condonation of the punishment. Such
alternative penalty, if it exceeds P6,000.00 legislative intention does not exist in a self-
but is not less than P 200.00, is considered terminating law because there was no
a correctional penalty. These two articles repeal at all.
appear to be inconsistent. So to harmonize
them, the Supreme Court ruled that if the
issue involves the prescription of the crime, BASIC MAXIMS IN CRIMINAL LAW
that felony will be considered a light felony
and, therefore, prescribes within two
months. But if the issue involves Doctrine of Pro Reo
prescription of the penalty, the fine of
P200.00 will be considered correctional and Whenever a penal law is to be construed or
it will prescribe within 10 years. Clearly, the applied and the law admits of two
court avoided the collision between the two interpretations – one lenient to the offender
articles. and one strict to the offender – that
interpretation which is lenient or favorable
to the offender will be adopted.
penalty prescribed by law, since it is more should direct the punishment to potential or
favorable for the accused to interpret the actual wrongdoers, since criminal law is
law. directed against acts and omissions which
the society does not approve. Consistent
with this theory, the mala prohibita principle
Nullum crimen, nulla poena sine lege which punishes an offense regardless of
malice or criminal intent, should not be
There is no crime when there is no law utilized to apply the full harshness of the
punishing the same. This is true to civil law special law.
countries, but not to common law countries.
In Magno v CA, decided on June 26,
Because of this maxim, there is no common 1992, the Supreme Court acquitted Magno
law crime in the Philippines. No matter how of violation of Batas Pambansa Blg. 22
wrongful, evil or bad the act is, if there is no when he acted without malice. The
law defining the act, the same is not wrongdoer is not Magno but the lessor who
considered a crime. deposited the checks. He should have
returned the checks to Magno when he
Common law crimes are wrongful acts pulled out the equipment. To convict the
which the community/society condemns as accused would defeat the noble objective of
contemptible, even though there is no law the law and the law would be tainted with
declaring the act criminal. materialism and opportunism.
Code of Kalantiao
Actus non facit reum, nisi mens sit rea
If you will be asked about the development
The act cannot be criminal where the mind of criminal law in the Philippines, do not
is not criminal. This is true to a felony start with the Revised Penal Code. Under
characterized by dolo, but not a felony the Code of Kalantiao, there were penal
resulting from culpa. This maxim is not an provisions. Under this code, if a man would
absolute one because it is not applied to have a relation with a married woman, she
culpable felonies, or those that result from is penalized. Adultery is a crime during
negligence. those days. Even offending religious
things, such as gods, are penalized. The
Code of Kalantiao has certain penal
Utilitarian Theory or Protective Theory provisions. The Filipinos have their own set
of penology also.
The primary purpose of the punishment
under criminal law is the protection of
society from actual and potential Spanish Codigo Penal
wrongdoers. The courts, therefore, in
exacting retribution for the wronged society,
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
When the Spanish Colonizers came, the who participated in drafting the Code of
Spanish Codigo Penal was made applicable Crimes was Judge Guellermo Guevarra.
and extended to the Philippines by Royal
Decree of 1870. This was made effective in Since that Code of Crimes was never
the Philippines in July 14, 1876. enacted as law, he enacted his own code of
crimes. But it was the Code of Crimes that
that was presented in the Batasan as
Who is Rafael Del Pan? Cabinet Bill no. 2. Because the code of
crimes prepared by Guevarra was more of
He drafted a correctional code which was a moral code than a penal code, there were
after the Spanish Codigo Penal was several oppositions against the code.
extended to the Philippines. But that
correctional code was never enacted into
law. Instead, a committee was organized Proposed Penal Code of the Philippines
headed by then Anacleto Diaz. This
committee was the one who drafted the Through Assemblyman Estelito Mendoza,
present Revised Penal Code. the UP Law Center formed a committee
which drafted the Penal Code of the
Philippines. This Penal Code of the
The present Revised Penal Code Philippines was substituted as Cabinet Bill
no. 2 and this has been discussed in the
When a committee to draft the Revised floor of the Batasang Pambansa. So the
Penal Code was formed, one of the Code of Crimes now in Congress was not
reference that they took hold of was the the Code of Crimes during the time of
correctional code of Del Pan. In fact, many President Roxas. This is a different one.
provisions of the Revised Penal Code were Cabinet Bill No. 2 is the Penal Code of the
no longer from the Spanish Penal Code; Philippines drafted by a code committee
they were lifted from the correctional code chosen by the UP Law Center, one of them
of Del Pan. So it was him who formulated was Professor Ortega. There were seven
or paraphrased this provision making it members of the code committee. It would
simpler and more understandable to have been enacted into law it not for the
Filipinos because at that time, there were dissolution of the Batasang Pambansa
only a handful who understood Spanish. dissolved. The Congress was planning to
revive it so that it can be enacted into law.
Note, however, that not all violations of In crimes punished under special
special laws are mala prohibita. While laws, the moral trait of the offender
intentional felonies are always mala in se, it is not considered; it is enough that
does not follow that prohibited acts done in the prohibited act was voluntarily
violation of special laws are always mala done.
prohibita. Even if the crime is punished
under a special law, if the act punished is 2. As to use of good faith as defense
one which is inherently wrong, the same is
malum in se, and, therefore, good faith and In crimes punished under the
the lack of criminal intent is a valid defense; Revised Penal Code, good faith or
unless it is the product of criminal lack of criminal intent is a valid
negligence or culpa. defense; unless the crime is the
result of culpa
Likewise when the special laws requires
that the punished act be committed In crimes punished under special
knowingly and willfully, criminal intent is laws, good faith is not a defense
required to be proved before criminal liability
may arise. 3. As to degree of accomplishment of
the crime
When the act penalized is not inherently
wrong, it is wrong only because a law In crimes punished under the
punishes the same. Revised Penal Code, the degree of
accomplishment of the crime is
For example, Presidential Decree No. 532 taken into account in punishing the
punishes piracy in Philippine waters and the offender; thus, there are attempted,
special law punishing brigandage in the frustrated, and consummated stages
highways. These acts are inherently wrong in the commission of the crime.
and although they are punished under
special law, the acts themselves are mala in In crimes punished under special
se; thus, good faith or lack of criminal intent laws, the act gives rise to a crime
is a defense. only when it is consummated; there
are no attempted or frustrated
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
stages, unless the special law was alerted. What was the crime
expressly penalize the mere attempt committed?
or frustration of the crime.
Grave coercion. There is no such
4. As to mitigating and aggravating thing as attempted hijacking. Under special
circumstances laws, the penalty is not imposed unless the
act is consummated. Crimes committed
In crimes punished under the against the provisions of a special law are
Revised Penal Code, mitigating and penalized only when the pernicious effects,
aggravating circumstances are taken which such law seeks to prevent, arise.
into account in imposing the penalty
since the moral trait of the offender 2. A mayor awarded a
is considered. concession to his daughter. She was also
the highest bidder. The award was even
In crimes punished under special endorsed by the municipal council as the
laws, mitigating and aggravating most advantageous to the municipality. The
circumstances are not taken into losing bidder challenged the validity of the
account in imposing the penalty. contract, but the trial court sustained its
validity. The case goes to the
5. As to degree of participation Sandiganbayan and the mayor gets
convicted for violation of Republic Act No.
In crimes punished under the 3019 (Anti-Graft and Corrupt Practices Act).
Revised Penal Code, when there is He appeals alleging his defenses raised in
more than one offender, the degree the Sandiganbayan that he did not profit
of participation of each in the from the transaction, that the contract was
commission of the crime is taken advantageous to the municipality, and that
into account in imposing the penalty; he did not act with intent to gain. Rule.
thus, offenders are classified as
principal, accomplice and accessory. Judgment affirmed. The contention
of the mayor that he did not profit anything
In crimes punished under special from the transaction, that the contract was
laws, the degree of participation of advantageous to the municipality, and that
the offenders is not considered. All he did not act with intent to gain, is not a
who perpetrated the prohibited act defense. The crime involved is malum
are penalized to the same extent. prohibitum.
There is no principal or accomplice
or accessory to consider.
In the case of People v. Sunico, an
election registrar was prosecuted for having
Questions & Answers failed to include in the voter’s register the
name of a certain voter. There is a
provision in the election law which
1. Three hijackers accosted the
proscribes any person from preventing or
pilot of an airplane. They compelled the
disenfranchising a voter from casting his
pilot to change destination, but before the
vote. In trial, the election registrar raised as
same could be accomplished, the military
good faith as a defense. The trial court
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
convicted him saying that good faith is not a A crime under the Revised Penal Code is
defense in violation of special laws. On referred to as a felony. Do not use this term
appeal, it was held by he Supreme Court in reference to a violation of special law.
that disenfranchising a voter from casting
his vote is not wrong because there is a
provision of law declaring it as a crime, but
because with or without a law, that act is
wrong. In other words, it is malum in se. Offense
Consequently, good faith is a defense.
Since the prosecution failed to prove that A crimes punished under a special law is
the accused acted with malice, he was called as statutory offense.
acquitted.
Misdemeanor
Test to determine if violation of special
law is malum prohibitum or malum in se A minor infraction of the law, such as a
violation of an ordinance, is referred to as a
Analyze the violation: Is it wrong because misdemeanor.
there is a law prohibiting it or punishing it as
such? If you remove the law, will the act
still be wrong? Crime
If the wording of the law punishing the crime Whether the wrongdoing is punished under
uses the word “willfully”, then malice must the Revised Penal Code or under a special
be proven. Where malice is a factor, good law, the generic word crime can be used.
faith is a defense.
Felony
Intraterritorial application
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In the intraterritorial application of the because war vessels are part of the
Revised Penal Code, Article 2 makes it sovereignty of the country to whose
clear that it does not refer only to Philippine naval force they belong;
archipelago but it also includes the
atmosphere, interior waters and maritime (2) When the foreign country in whose
zone. So whenever you use the word territorial waters the crime was
territory, do not limit this to land area only. committed adopts the French Rule,
which applies only to merchant
As far as jurisdiction or application of the vessels, except when the crime
Revised Penal Code over crimes committed committed affects the national
on maritime zones or interior waters, the security or public order of such
Archipelagic Rule shall be observed. So foreign country.
the three-mile limit on our shoreline has
been modified by the rule. Any crime
committed in interior waters comprising the The French Rule
Philippine archipelago shall be subject to
our laws although committed on board a The French Rule provides that the
foreign merchant vessel. nationality of the vessel follows the flag
which the vessel flies, unless the crime
A vessel is considered a Philippine ship committed endangers the national security
only when it is registered in accordance of a foreign country where the vessel is
with Philippine laws. Under international within jurisdiction in which case such
law, as long as such vessel is not within the foreign country will never lose jurisdiction
territorial waters of a foreign country, over such vessel.
Philippine laws shall govern.
prosecuted here for bigamy because this is foreign country, you cannot give territorial
a crime not connected with his official application to the Revised Penal Code,
duties. However, if the second marriage because Title I of Book 2 does not include
was celebrated within the Philippine rebellion.
embassy, he may be prosecuted here,
since it is as if he contracted the marriage Illustration:
here in the Philippines.
When a Filipino who is already married in
the Philippines, contracts another marriage
abroad, the crime committed is bigamy. But
Question & Answer the Filipino can not be prosecuted when he
comes back to the Philippines, because the
bigamy was committed in a foreign country
A consul was to take a deposition in
and the crime is not covered by paragraph
a hotel in Singapore. After the deposition,
5 of Article 2. However, if the Filipino, after
the deponent approached the consul’s
the second marriage, returns to the
daughter and requested that certain parts of
Philippines and cohabits here with his
the deposition be changed in consideration
second wife, he commits the crime of
for $10,000.00. The daughter persuaded
concubinage for which he can be
the consul and the latter agreed. Will the
prosecuted.
crime be subject to the Revised Penal
Code? If so, what crime or crimes have
The Revised Penal Code shall not apply to
been committed?
any other crime committed in a foreign
country which does not come under any of
Yes. Falsification.
the exceptions and which is not a crime
against national security.
Normally, the taking of the
deposition is not the function of the consul,
his function being the promotion of trade
HOW A FELONY MAY ARISE
and commerce with another country. Under
the Rules of Court, however, a consul can
take depositions or letters rogatory. There
Punishable by the Revised Penal Code
is, therefore, a definite provision of the law
making it the consul’s function to take
The term felony is limited only to violations
depositions. When he agreed to the
of the Revised Penal Code. When the
falsification of the deposition, he was doing
crime is punishable under a special law you
so as a public officer in the service of the
do not refer to this as a felony. So
Philippine government.
whenever you encounter the term felony, it
is to be understood as referring to crimes
Paragraph 5 of Article 2, use the phrase “as
under the Revised Penal Code
defined in Title One of Book Two of this
.
Code.”
This is important because there are certain
This is a very important part of the
provisions in the Revised Penal Code where
exception, because Title I of Book 2 (crimes
the term “felony” is used, which means that
against national security) does not include
the provision is not extended to crimes
rebellion. So if acts of rebellion were
under special laws. A specific instance is
perpetrated by Filipinos who were in a
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
found in Article 160 – Quasi-Recidivism, lady, started putting out his tongue
which reads: suggesting lewdness, that is already an act
in contemplation of criminal law. He cannot
A person who shall commit a claim that there was no crime committed. If
felony after having been A scratches something, this is already an
convicted by final judgment, act which annoys the lady he may be
before beginning to serve accused of unjust vexation, not malicious
sentence or while serving the mischief.
same, shall be punished
under the maximum period of
the penalty. Dolo or culpa
Note that the word "felony" is used. However, It does not mean that if an act or
omission is punished under the Revised
Penal Code, a felony is already committed.
To be considered a felony, it must also be
Questions & Answers done with dolo or culpa.
Criminal Intent is not deceit. Do not use On the other hand, motive implies motion.
deceit in translating dolo, because the It is the moving power which impels one to
nearest translation is deliberate intent. do an act. When there is motive in the
commission of a crime, it always comes
In criminal law, intent is categorized into before the intent. But a crime may be
two: committed without motive.
Intent is the determination to do a certain In a case where mother and son were living
thing, an aim or purpose of the mind. It is in the same house, and the son got angry
the design to resolve or determination by and strangled his mother, the son, when
which a person acts. prosecuted for parricide, raised the defense
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
that he had no intent to kill his mother. It mens rea is the taking of the property of
was held that criminal intent applies on the another with intent to gain. In falsification,
strangulation of the vital part of the body. the mens rea is the effecting of the forgery
Criminal intent is on the basis of the act, not with intent to pervert the truth. It is not
on the basis if what the offender says. merely writing something that is not true;
the intent to pervert the truth must follow the
Look into motive to determine the proper performance of the act.
crime which can be imputed to the accused.
If a judge was killed, determine if the killing In criminal law, we sometimes have to
has any relation to the official functions of consider the crime on the basis of intent.
the judge in which case the crime would be For example, attempted or frustrated
direct assault complexed with homicide is distinguished from physical
murder/homicide, not the other way around. injuries only by the intent to kill. Attempted
If it has no relation, the crime is simply rape is distinguished from acts of
homicide or murder. lasciviousness by the intent to have sexual
intercourse. In robbery, the mens rea is the
Omission is the inaction, the failure to taking of the property of another coupled
perform a positive duty which he is bound to with the employment of intimidation or
do. There must be a law requiring the violence upon persons or things; remove
doing or performing of an act. the employment of force or intimidation and
it is not robbery anymore.
Distinction between negligence and
imprudence
Mistake of fact
(1) In negligence, there is deficiency of
action; When an offender acted out of a
misapprehension of fact, it cannot be said
(2) in imprudence, there is deficiency of that he acted with criminal intent. Thus, in
perception. criminal law, there is a “mistake of fact”.
When the offender acted out of a mistake of
Mens rea fact, criminal intent is negated, so do not
presume that the act was done with criminal
The technical term mens rea is sometimes intent. This is absolutory if crime involved
referred to in common parlance as the dolo.
gravamen of the offense. To a layman, that
is what you call the “bullseye” of the crime. Mistake of fact would be relevant only when
This term is used synonymously with the felony would have been intentional or
criminal or deliberate intent, but that is not through dolo, but not when the felony is a
exactly correct. result of culpa. When the felony is a
product of culpa, do not discuss mistake of
Mens rea of the crime depends upon the fact. When the felonious act is the product
elements of the crime. You can only detect of dolo and the accused claimed to have
the mens rea of a crime by knowing the acted out of mistake of fact, there should be
particular crime committed. Without no culpa in determining the real facts,
reference to a particular crime, this term is otherwise, he is still criminally liable,
meaningless. For example, in theft, the although he acted out of a mistake of fact.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Mistake of fact is only a defense in Supreme Court pointed out that although
intentional felony but never in culpable the allegation in the information charged the
felony. accused with an intentional felony, yet the
words feloniously and unlawfully, which are
standard languages in an information,
Real concept of culpa covers not only dolo but also culpa because
culpa is just a mode of committing a felony.
Under Article 3, it is clear that culpa is just a
modality by which a felony may be In Quezon v. Justice of the Peace, Justice
committed. A felony may be committed or J.B.L. Reyes dissented and claimed that
incurred through dolo or culpa. Culpa is criminal negligence is a quasi-offense, and
just a means by which a felony may result. the correct designation should not be
homicide through reckless imprudence, but
In Article 365, you have criminal negligence reckless imprudence resulting in homicide.
as an omission which the article definitely or The view of Justice Reyes is sound, but the
specifically penalized. The concept of problem is Article 3, which states that culpa
criminal negligence is the inexcusable lack is just a mode by which a felony may result.
of precaution on the part of the person
performing or failing to perform an act. If
the danger impending from that situation is Question & Answer
clearly manifest, you have a case of
reckless imprudence. But if the danger that
Is culpa or criminal negligence a
would result from such imprudence is not
crime?
clear, not manifest nor immediate you have
only a case of simple negligence. Because
First, point out Article 3. Under
of Article 365, one might think that criminal
Article 3, it is beyond question that culpa or
negligence is the one being punished. That
criminal negligence is just a mode by which
is why a question is created that criminal
a felony may arise; a felony may be
negligence is the crime in itself.
committed or incurred through dolo or
culpa.
In People v. Faller, it was stated indirectly
that that criminal negligence or culpa is just
However, Justice J.B.L. Reyes
a mode of incurring criminal liability. In this
pointed out that criminal negligence is a
case, the accused was charged with
quasi–offense. His reason is that if criminal
malicious mischief. Malicious mischief is an
negligence is not a quasi-offense, and only
intentional negligence under Article 327 of
a modality, then it would have been
the Revised Penal Code. The provision
absorbed in the commission of the felony
expressly requires that there be a deliberate
and there would be no need for Article 365
damaging of property of another, which
as a separate article for criminal
does not constitute destructive arson. You
negligence. Therefore, criminal negligence,
do not have malicious mischief through
according to him, is not just a modality; it is
simple negligence or reckless imprudence
a crime by itself, but only a quasi-offense.
because it requires deliberateness. Faller
was charged with malicious mischief, but
However, in Samson v. CA, where a
was convicted of damage to property
person who has been charged with
through reckless imprudence. The
falsification as an intentional felony, was
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
found guilty of falsification through simple damage to property as the felonies and not
negligence. This means that means that criminal negligence.
culpa or criminal negligence is just a
modality of committing a crime. In several cases that followed, the
Supreme Court ruled that where several
In some decisions on a complex crime consequences result from reckless
resulting from criminal negligence, the imprudence or criminal negligence, the
Supreme Court pointed out that when accused should be charged only in the
crimes result from criminal negligence, they Regional Trial Court although the reckless
should not be made the subject of a imprudence may result in slight physical
different information. For instance, the injuries. The Supreme Court argued that
offender was charged with simple since there was only one criminal
negligence resulting in slight physical negligence, it would be an error to split the
injuries, and another charge for simple same by prosecuting the accused in one
negligence resulting in damage to property. court and prosecuting him again in another
The slight physical injuries which are the for the same criminal negligence. This is
result of criminal negligence are under the tantamount to splitting a cause of action in a
jurisdiction of the inferior court. But civil case. For orderly procedure, the
damage to property, if the damage is more information should only be one. This
than P2,000.00, would be under the however, also creates some doubts. As
jurisdiction of the Regional Trial Court you know, when the information charges
because the imposable fine ranges up to the accused for more than the crime, the
three times the value of the damage. information is defective unless the crime
charged is a complex one or a special
In People v. Angeles, the prosecution filed complex crime.
an information against the accused in an
inferior court for slight physical injuries
through reckless imprudence and filed also
damage to property in the Regional Trial CRIMINAL LIABILITY
Court. The accused pleaded guilty to the
charge of slight physical injuries. When he
was arraigned before the Regional Trial Since in Article 3, a felony is an act or
Court, he invoked double jeopardy. He was omission punishable by law, particularly the
claiming that he could not be prosecuted Revised Penal Code, it follows that whoever
again for the same criminal negligence. commits a felony incurs criminal liability. In
The Supreme Court ruled that here is no paragraph 1 of Article 4, the law uses the
double jeopardy because the crimes are word “felony”, that whoever commits a
two different crimes. Slight physical injuries felony incurs criminal liability. A felony may
and damage to property are two different arise not only when it is intended, but also
crimes. when it is the product of criminal
negligence. What makes paragraph 1 of
In so ruling that there is no double jeopardy, Article 4 confusing is the addition of the
the Supreme Court did not look into the qualifier “although the wrongful act be
criminal negligence. The Supreme Court different from what he intended.”
looked into the physical injuries and the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
felony could not have resulted. He who is cut. Eventually, B died. A was prosecuted
the cause of the cause is the evil of the for manslaughter. The Supreme Court
cause. As a general rule, the offender is rationalized that what made B cut his throat,
criminally liable for all the consequences of in the absence of evidence that he wanted
his felonious act, although not intended, if to commit suicide, is the belief that sooner
the felonious act is the proximate cause of or later, he would die out of the wound
the felony or resulting felony. A proximate inflicted by A. Because of that belief, he
cause is not necessarily the immediate decided to shorten the agony by cutting his
cause. This may be a cause which is far throat. That belief would not be engendered
and remote from the consequence which in his mind were it not because of the
sets into motion other causes which profuse bleeding from his wound. Now, that
resulted in the felony. profusely bleeding would not have been
there, were it not for the wound inflicted by
Illustrations: A. As a result, A was convicted for
manslaughter.
A, B, C, D and E were driving their vehicles
along Ortigas Aveue. A's car was ahead, In criminal law, as long as the act of the
followed by those of B, C, D, and E. When accused contributed to the death of the
A's car reached the intersection of EDSA victim, even if the victim is about to die, he
and Ortigas Avenue, the traffic light turned will still be liable for the felonious act of
red so A immediately stepped on his break, putting to death that victim. In one decision,
followed by B, C, D. However, E was not the Supreme Court held that the most
aware that the traffic light had turned to red, precious moment in a man’s life is that of
so he bumped the car of D, then D hit the losing seconds when he is about to die. So
car of C, then C hit the car of B, then, when you robbed him of that, you should be
finally, B hit the car of A. In this case, the liable for his death. Even if a person is
immediate cause to the damage of the car already dying, if one suffocates him to end
of A is the car of B, but that is not the up his agony, one will be liable for murder,
proximate cause. The proximate cause is when you put him to death, in a situation
the car of E because it was the car of E where he is utterly defenseless.
which sets into motion the cars to bump into
each other. In US v. Valdez, the deceased is a member
of the crew of a vessel. Accused is in
In one case, A and B, who are brothers-in- charge of the crewmembers engaged in the
law, had a quarrel. At the height of their loading of cargo in the vessel. Because the
quarrel, A shot B with an airgun. B was hit offended party was slow in his work, the
at the stomach, which bled profusely. When accused shouted at him. The offended party
A saw this, he put B on the bed and told replied that they would be better if he would
him not to leave the bed because he will not insult them. The accused resented this,
call a doctor. While A was away, B rose and rising in rage, he moved towards the
from the bed, went into the kitchen and got victim, with a big knife in hand threatening
a kitchen knife and cut his throat. The to kill him. The victim believing himself to be
doctor arrived and said that the wound in in immediate peril, threw himself into the
the stomach is only superficial; only that it is water. The victim died of drowning. The
a bleeder, but the doctor could no longer accused was prosecuted for homicide. His
save him because B’s throat was already contention that his liability should be only
24
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
for grave threats since he did not even stab Even if the wound was called slight but
the victim, that the victim died of drowning, because of the careless treatment, it was
and this can be considered as a aggravated, the offender is liable for the
supervening cause. It was held that the death of the victim not only of the slight
deceased, in throwing himself into the river, physical injuries. Reason – without the
acted solely in obedience to the instinct of injury being inflicted, there would have been
self-preservation, and was in no sense no need for any medical treatment. That the
legally responsible for his own death. As to medical treatment proved to be careless or
him, it was but the exercise of a choice negligent, is not enough to relieve the
between two evils, and any reasonable offender of the liability for the inflicting
person under the same circumstance might injuries.
have done the same. The accused must,
therefore, be considered as the author of When a person inflicted wound upon
the death of the victim. another, and his victim upon coming home
got some leaves, pounded them and put
This case illustrates that proximate cause lime there, and applying this to the wound,
does not require that the offender needs to developed locked jaw and eventually he
actually touch the body of the offended died, it was held that the one who inflicted
party. It is enough that the offender the wound is liable for his death.
generated in the mind of the offended party
the belief that made him risk himself. In another instance, during a quarrel, the
victim was wounded. The wound was
If a person shouted fire, and because of superficial, but just the same the doctor put
that a moviegoer jumped into the fire inside some packing. When the victim went
escape and died, the person who shouted home, he could not stand the pain, so he
fire when there is no fire is criminally liable pulled out the packing. That resulted into
for the death of that person. profuse bleeding and he died because of
loss of blood. The offender who caused the
In a case where a wife had to go out to the wound, although the wound caused was
cold to escape a brutal husband and only slight, was held answerable for the
because of that she was exposed to the death of the victim, even if the victim would
element and caught pneumonia, the not have died were it not for the fact that he
husband was made criminally liable for the pulled out that packing. The principle is that
death of the wife. without the wound, the act of the physician
or the act of the offended party would not
Even though the attending physician may have anything to do with the wound, and
have been negligent and the negligence since the wound was inflicted by the
brought about the death of the offending offender, whatever happens on that wound,
party – in other words, if the treatment was he should be made punishable for that.
not negligent, the offended party would
have survived – is no defense at all, In Urbano v. IAC, A and B had a quarrel
because without the wound inflicted by the and started hacking each other. B was
offender, there would have been no wounded at the back. Cooler heads
occasion for a medical treatment. intervened and they were separated.
Somehow, their differences were patched
up. A agreed to shoulder all the expenses
25
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
for the treatment of the wound of B, and to The one who caused the proximate cause
pay him also whatever lost of income B may is the one liable. The one who caused the
have failed to receive. B, on the other immediate cause is also liable, but merely
hand, signed a forgiveness in favor of A and contributory or sometimes totally not liable.
on that condition, he withdrew the complaint
that he filed against A. After so many weeks
of treatment in a clinic, the doctor Wrongful act done be different from what
pronounced the wound already healed. was intended
Thereafter, B went back to his farm. Two
months later, B came home and he was What makes the first paragraph of Article 4
chilling. Before midnight, he died out of confusing is the qualification “although the
tetanus poisoning. The heirs of B filed a wrongful act done be different from what
case of homicide against A. The Supreme was intended”. There are three situations
Court held that A is not liable. It took into contemplated under paragraph 1 of Article
account the incubation period of tetanus 4:
toxic. Medical evidence were presented
that tetanus toxic is good only for two (1) Aberratio ictus or mistake in the
weeks. That if, indeed, the victim had blow;
incurred tetanus poisoning out of the wound
inflicted by A, he would not have lasted two (2) Error in personae or mistake in
months. What brought about tetanus to identity; and
infect the body of B was his working in his
farm using his bare hands. Because of this, (3) Praeter intentionem or where the
the Supreme Court said that the act of B of consequence exceeded the
working in his farm where the soil is filthy, intention.
using his own hands, is an efficient
supervening cause which relieves A of any
liability for the death of B. A, if at all, is only Aberration ictus
liable for physical injuries inflicted upon B.
In aberratio ictus, a person directed the
If you are confronted with this facts of the blow at an intended victim, but because of
Urbano case, where the offended party died poor aim, that blow landed on somebody
because of tetanus poisoning, reason out else. In aberratio ictus, the intended victim
according to that reasoning laid down by as well as the actual victim are both at the
the Supreme Court, meaning to say, the scene of the crime.
incubation period of the tetanus poisoning Distinguish this from error in personae,
was considered. Since tetanus toxic would where the victim actually received the blow,
affect the victim for no longer than two but he was mistaken for another who was
weeks,, the fact that the victim died two not at the scene of the crime. The
months later shows that it is no longer distinction is important because the legal
tetanus brought about by the act of the effects are not the same.
accused. The tetanus was gathered by his
working in the farm and that is already an In aberratio ictus, the offender delivers the
efficient intervening cause. blow upon the intended victim, but because
of poor aim the blow landed on somebody
else. You have a complex crime, unless
26
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
a case, the offender will be charged with a different victim, error in persona does not
parricide, but the penalty that would be affect the criminal liability of the offender.
imposed will be that of homicide. This is But if the crime committed was different
because under Article 49, the penalty for from the crime intended, Article 49 will
the lesser crime will be the one imposed, apply and the penalty for the lesser crime
whatever crime the offender is prosecuted will be applied. In a way, mistake in identity
under. In any event, the offender is is a mitigating circumstance where Article
prosecuted for the crime committed not for 49 applies. Where the crime intended is
the crime intended. more serious than the crime committed, the
error in persona is not a mitigating
Illustrations: circumstance
Praeter intentionem
A thought of killing B. He positioned himself
at one corner where B would usually pass. In People v. Gacogo, 53 Phil 524, two
When a figure resembling B was persons quarreled. They had fist blows.
approaching, A hid and when that figure The other started to run away and Gacogo
was near him, he suddenly hit him with a went after him, struck him with a fist blow at
piece of wood on the nape, killing him. But the back of the head. Because the victim
it turned out that it was his own father. The was running, he lost balance, he fell on the
crime committed is parricide, although what pavement and his head struck the cement
was intended was homicide. Article 49, pavement. He suffered cerebral
therefore, will apply because out of a hemorrhage. Although Gacogo claimed
mistake in identity, a crime was committed that he had no intention of killing the victim,
different from that which was intended. his claim is useless. Intent to kill is only
relevant when the victim did not die. This is
In another instance, A thought of killing B. so because the purpose of intent to kill is to
Instead of B, C passed. A thought that he differentiate the crime of physical injuries
was B, so he hit C on the neck, killing the from the crime of attempted homicide or
latter. Just the same, the crime intended to attempted murder or frustrated homicide or
be committed is homicide and what was frustrated murder. But once the victim is
committed is actually homicide, Article 49 dead, you do not talk of intent to kill
does not apply. Here, error in personae is anymore. The best evidence of intent to kill
of no effect. is the fact that victim was killed. Although
Gacogo was convicted for homicide for the
How does error in personae affect criminal death of the person, he was given the
liability of the offender? benefit of paragraph 3 of Article13, that is, "
that the offender did not intend to commit so
Error in personae is mitigating if the crime grave a wrong as that committed”.
committed is different from that which was
intended. If the crime committed is the This is the consequence of praeter
same as that which was intended, error in intentionem. In short, praeter intentionem is
personae does not affect the criminal mitigating, particularly covered by
liability of the offender. paragraph 3 of Article 13. In order
however, that the situation may qualify as
In mistake of identity, if the crime committed praeter intentionem, there must be a
was the same as the crime intended, but on notable disparity between the means
28
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
employed and the resulting felony. If there disclosed in the manner in which he
is no disparity between the means committed the crime.
employed by the offender and the resulting
felony, this circumstance cannot be availed In still another case, the accused entered
of. It cannot be a case of praeter the store of a Chinese couple, to commit
intentionem because the intention of a robbery. They hogtied the Chinaman and
person is determined from the means his wife. Because the wife was so talkative,
resorted to by him in committing the crime. one of the offenders got a pan de sal and
put it in her mouth. But because the
Illustrations: woman was trying to wriggle from the
bondage, the pan de sal slipped through
A stabbed his friend when they had a her throat. She died because of
drinking spree. While they were drinking, suffocation. The offender were convicted
they had some argument about a basketball for robbery with homicide because there
game and they could not agree, so he was a resulting death, although their
stabbed him eleven times. His defense is intention was only to rob. They were given
that he had no intention of killing his friend. the benefit of paragraph 3 of Article 13,
He did not intend to commit so grave a “that they did not intend to commit so grave
wrong as that committed. It was held that a wrong as that committed”. There was
the fact that 11 wounds were inflicted on A's really no intention to bring about the killing,
friend is hardly compatible with the idea that because it was the pan de sal they put into
he did not intend to commit so grave a the mouth. Had it been a piece of rag, it
wrong that committed. would be different. In that case, the
Supreme Court gave the offenders the
In another instance, the accused was a benefit of praeter intentionem as a
homosexual. The victim ridiculed or mitigating circumstance. The means
humiliated him while he was going to the employed is not capable of producing death
restroom. He was so irritated that he just if only the woman chewed the pan de sal.
stabbed the victim at the neck with a lady’s
comb with a pointed handle, killing the A man raped a young girl. The young girl
victim. His defense was that he did not was shouting so the man placed his hand
intend to kill him. He did not intend to on the mouth and nose of the victim. He
commit so grave a wrong as that of killing found out later that the victim was dead
him. That contention was rejected, already; she died of suffocation. The
because the instrument used was pointed. offender begged that he had no intention of
The part of the body wherein it was directed killing the girl and that his only intention was
was the neck which is a vital part of the to prevent her from shouting. The Supreme
body. In praeter intentionem, it is mitigating Court rejected the plea saying that one can
only if there is a notable or notorious always expect that a person who is
disparity between the means employed and suffocated may eventually die. So the
the resulting felony. In criminal law, intent offender was prosecuted for the serious
of the offender is determined on the basis crime of rape with homicide and he was not
employed by him and the manner in which given the benefit of paragraph 3, Article 13.
he committed the crime. Intention of the
offender is not what is in his mind; it is Differentiating this first case with the case of
the Chinamana nd his wife, it would seem
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
that the difference lies in the means the urge, he climbed into the ceiling, went
employed by the offender. inside the room of his master, placed
himself on top of her and abused her, not
In praeter intentionem, it is essential that knowing that she was already dead five
there is a notable disparity between the minutes earlier. Is an impossible crime
means employed or the act of the offender committed?
and the felony which resulted. This means
that the resulting felony cannot be foreseen Yes. Before, the act performed by
from the acts of the offender. If the the offender could not have been a crime
resulting felony can be foreseen or against person or property. The act
anticipated from the means employed, the performed would have been constituted a
circumstance of praeter intentionem does crime against chastity. An impossible crime
not apply. is true only if the act done by the offender
constitutes a crime against person or
For example, if A gave B a karate blow in property. However, with the new rape law
the throat, there is no praeter intentionem amending the Revised Penal Code and
because the blow to the throat can result in classifying rape as a crime against persons,
death. it is now possible that an impossible crime
was committed. Note, however, that the
So also, if A tried to intimidate B by poking crime might also fall under the Revised
a gun at the latter’s back, and B died of a Administrative Code – desecrating the
cardiac arrest, A will be prosecuted for dead.
homicide but will be given the mitigating
circumstance praeter intentionem. 2. A was driving his car around
Roxas Boulevard when a person hitched a
ride. Because this person was exquisitely
Impossible crime dressed, A readily welcomed the fellow
inside his car and he continued driving.
An impossible crime is an act which would When he reached a motel, A suddenly
be an offense against person or property swerved his car inside. A started kissing his
were it not for the inherent impossibility of passenger, but he found out that his
its accomplishment or on account of the passenger was not a woman but a man,
employment of inadequate or ineffectual and so he pushed him out of the car, and
means. gave him fist blows. Is an impossible crime
committed? If not, is there any crime
committed at all?
Question & Answer
It cannot be an impossible crime,
because the act would have been a crime
1. Accused was a houseboy in
against chastity. The crime is physical
a house where only a spinster resides. It is
injuries or acts of lasciviousness, if this was
customary for the spinster to sleep nude
done against the will of the passenger.
because her room was warm. It was also
There are two ways of committing acts of
the habit of the houseboy that whenever
lasciviousness. Under Article 336, where
she enters her room, the houseboy would
the acts of lasciviousness were committed
follow and peek into the keyhole. Finally,
under circumstances of rape, meaning to
when the houseboy could no longer resist
30
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
say, there is employment of violence or inside the vault or safe. The fact that the
intimidation or the victim is deprived of vault had turned out to be empty is not
reason. Even if the victim is a man, the really inherently impossible to commit the
crime of acts of lasciviousness is crime of robbery. There are other things
committed. This is a crime that is not that he could take. The crime committed
limited to a victim who is a woman. Acts of therefore is attempted robbery, assuming
lasciviousness require a victim to be a that he did not lay his hands on any other
woman only when it is committed under article. This could not be trespass to
circumstances of seduction. If it is dwelling because there are other things that
committed under the circumstances of rape, can be stolen.
the victim may be a man or a woman. The
essence of an impossible crime is the 4. A and B were lovers. B was
inherent impossibility of accomplishing the willing to marry A except that A is already
crime or the inherent impossibility of the married. A thought of killing his wife. He
means employed to bring about the crime. prepared her breakfast every morning, and
When we say inherent impossibility, this every morning, he placed a little dose of
means that under any and all arsenic poison into the breakfast of the wife.
circumstances, the crime could not have The wife consumed all the food prepared by
materialized. If the crime could have her husband including the poison but
materialized under a different set of facts, nothing happened to the wife. Because of
employing the same mean or the same act, the volume of the household chores that the
it is not an impossible crime; it would be an wife had to attend to daily, she developed a
attempted felony. physical condition that rendered her so
strong and resistance to any kind of
Under Article 4, paragraph 2, impossible poisoning, so the amount of poison applied
crime is true only when the crime committed to her breakfast has no effect to her. Is
would have been against person or against there an impossible crime?
property. It is, therefore, important to know
what are the crimes under Title VIII, against No impossible crime is committed
persons and those against property under because the fact itself stated that what
Title X. An impossible crime is true only to prevented the poison from taking effect is
any of those crimes. the physical condition of the woman. So it
implies that if the woman was not of such
3. A entered a department store physical condition, the poison would have
at about midnight, when it was already taken effect. Hence, it is not inherently
closed. He went directly to the room where impossible to realize the killing. The crime
the safe or vault was being kept. He committed is frustrated parricide.
succeeded in opening the safe, but the safe
was empty. Is an impossible crime If it were a case of poisoning , an
committed? If not, what crime is possibly impossible crime would be constituted if a
committed? person who was thinking that it was a
poison that he was putting into the food of
This is not an impossible crime. the intended victim but actually it was vetsin
That is only true if there is nothing more to or sugar or soda. Under any and all
steal. But in a department store, where circumstances, the crime could not have
there is plenty to steal, not only the money been realized. But if due to the quantity of
31
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
vetsin or sugar or soda, the intended victim No. It was purely accidental that the
developed LBM and was hospitalized, then firearm did not discharge because the
it would not be a case of impossible crime bullets were old. If they were new, it would
anymore. It would be a case of physical have fired. That is a cause other than the
injuries, if the act done does not amount to spontaneous desistance of the offender,
some other crime under the Revised Penal and therefore, an attempted homicide.
Code.
But if let us say, when he started squeezing
Do not confuse an impossible crime with the trigger, he did not realize that the
the attempted or frustrated stage. firearm was empty. There was no bullet at
all. There is an impossible crime, because
5. Scott and Charles are under any and all circumstances, an
roommate in a boarding house. Everyday, unloaded firearm will never fire.
Scott leaves for work but before leaving he
would lock the food cabinet where he kept Whenever you are confronted with a
his food. Charles resented this. One day, problem where the facts suggest that an
he got an electric cord tied the one end to impossible crime was committed, be careful
the door knob and plugged the other end to about the question asked. If the question
an electric outlet. The idea was that, when asked is: “Is an impossible crime
Scott comes home to open the door knob, committed?”, then you judge that question
he would be electrocuted. Unknown to on the basis of the facts. If really the facts
Charles, Scott is working in an electronic constitute an impossible crime, then you
shop where he received a daily dosage of suggest than an impossible crime is
electric shock. When Scott opened the committed, then you state the reason for
doorknob, nothing happened to him. He the inherent impossibility.
was just surprised to find out that there was
an electric cord plugged to the outlet and If the question asked is “Is he liable for an
the other hand to the door knob. Whether impossible crime?”, this is a catching
an impossible crime was committed or not? question. Even though the facts constitute
an impossible crime, if the act done by the
It is not an impossible crime. The offender constitutes some other crimes
means employed is not inherently under the Revised Penal Code, he will not
impossible to bring about the consequence be liable for an impossible crime. He will be
of his felonious act. What prevented the prosecuted for the crime constituted so far
consummation of the crime was because of by the act done by him. The reason is an
some cause independent of the will of the offender is punished for an impossible
perpetrator. crime just to teach him a lesson because of
his criminal perversity. Although objectively,
6. A and B are enemies. A, no crime is committed, but subjectively, he
upon seeing B, got the revolver of his father, is a criminal. That purpose of the law will
shot B, but the revolver did not discharge also be served if he is prosecuted for some
because the bullets were old, none of them other crime constituted by his acts which
discharged. Was an impossible crime are also punishable under the RPC.
committed?
7. A and B are neighbors. They
are jealous of each other’s social status. A
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Until the Intod case, the prevailing attitude persons or against property, the same is
was that the provision of the Revised Penal penalized to repress criminal tendencies to
Code on impossible crime would only apply curtail their frequency. Because criminal
when the wrongful act, which would have liability for impossible crime presupposes
constituted a crime against persons or that no felony resulted from the wrongful act
property, could not and did not constitute done, the penalty is fixed at arresto mayor
another felony. Otherwise, if such act or a fine from P200.00 to P500.00,
constituted any other felony although depending on the “social danger and
different from what the offender intended, degree of criminality shown by the offender”
the criminal liability should be for such other (Article 59), regardless of whether the
felony and not for an impossible crime. The wrongful act was an impossible crime
attitude was so because Article 4 of the against persons or against property.
Code provides two situations where criminal
liability shall be incurred, to wit: There is no logic in applying paragraph 2 of
Article 4 to a situation governed by
Art 4. Criminal paragraph 1 of the same Article, that is,
liability – Criminal liability where a felony resulted. Otherwise, a
shall be incurred: redundancy and duplicity would be
perpetrated.
1. By any person
committing a felony In the Intod case, the wrongful acts of the
(delito) although the culprits caused destruction to the house of
wrongful act be the intended victim; this felonious act
different from that negates the idea of an impossible crime.
which he intended. But whether we agree or not, the Supreme
Court has spoken, we have to respect its
2. By any person ruling.
performing an act
which would be an
offense against NO CRIME UNLESS THERE IS A LAW
persons or property, PUNISHING IT
were it not for the
inherent impossibility When a person is charged in court, and the
of its accomplishment court finds that there is no law applicable,
or on account of the the court will acquit the accused and the
employment of judge will give his opinion that the said act
inadequate or should be punished.
ineffectual means.
Article 5 covers two situations:
Paragraph 1 refers to a situation where the
wrongful act done constituted a felony (1) The court cannot convict the
although it may be different from what he accused because the acts do not
intended. Paragraph 2 refers to a situation constitute a crime. The proper
where the wrongful act done did not judgment is acquittal, but the court is
constitute any felony, but because the act mandated to report to the Chief
would have given rise to a crime against
34
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Executive that said act be made demand an amount bigger than or different
subject of penal legislation and why. from what the law authorizes him to collect.
Under sub-paragraph a of Article 213 on
(2) Where the court finds the penalty Illegal exaction, the law uses the word
prescribed for the crime too harsh “demanding”. Mere demanding of an
considering the conditions amount different from what the law
surrounding the commission of he authorizes him to collect will already
crime, the judge should impose the consummate a crime, whether the taxpayer
law. The most that he could do is to pays the amount being demanded or not.
recommend to the Chief Executive Payment of the amount being demanded is
to grant executive clemency. not essential to the consummation of the
crime.
B and to poison her. So, he went to the robbery. The act of entering alone is not yet
drugstore and bought arsenic poison. On indicative of robbery although that may be
the way out, he met D. D asked him who what he may have planned to commit. In
was sick in the family, A confided to D that law, the attempted stage is only that overt
he bought the poison to poison his wife in act which is directly linked to the felony
order to marry C. After that, they parted intended to be committed.
ways. D went directly to the police and
reported that A is going to kill his wife. So In US v. Namaja, the accused was arrested
the policemen went to A’s house and found while he was detaching some of the wood
A still unwrapping the arsenic poison. The panels of a store. He was already able to
policemen asked A if he was planning to detach two wood panels. To a layman, the
poison B and A said yes. Police arrested only conclusion that will come to your mind
him and charged him with attempted is that this fellow started to enter the store
parricide. Is the charge correct? to steal something. He would not be there
just to sleep there. But in criminal law, since
No. Overt act begins when the the act of removing the panel indicates only
husband mixed the poison with the food his at most the intention to enter. He can only
wife is going to take. Before this, there is be prosecuted for trespass. The removal of
no attempted stage yet. the panelling is just an attempt to trespass,
not an attempt to rob. Although, Namaja
An overt act is that act which if allowed to was prosecuted for attempted robbery, the
continue in its natural course would Supreme Court held it is only attempted
definitely result into a felony. trespass because that is the crime that can
be directly linked to his act of removing the
In the attempted stage, the definition uses wood panel.
the word “directly”. This is significant. In the There are some acts which are ingredients
attempted stage, the acts so far performed of a certain crime, but which are, by
may already be a crime or it may be just an themselves, already criminal offenses.
ingredient of another crime. The word
"directly’" emphasizes the requirement that In abduction, your desire may lead to acts
the attempted felony is that which is directly of lasciviousness. In so far the woman
linked to the overt act performed by the being carried is concerned, she may
offender, not the felony he has in his mind. already be the victim of lascivious acts. The
crime is not attempted abduction but acts of
In criminal law, you are not allowed to lasciviousness. You only hold him liable for
speculate, not to imagine what crime is an attempt, so far as could be reasonably
intended, but apply the provisions of the law linked to the overt act done by him. Do not
of the facts given. go far and imagine what you should do.
sala by cutting the screen on his window. If A fired at B and B was hit on the shoulder.
you were to prosecute this fellow, for what But B's wound was not mortal. What A then
crime are you going to prosecute him? did was to approach B, and told B, “Now
you are dead, I will kill you.” But A took pity
The act done by him of entering and kept the revolver and left. The crime
through an opening not intended for the committed is attempted homicide and not
purpose is only qualified trespass. Qualified physical injuries, because there was an
trespass because he did so by cutting intention to kill. The desistance was with
through the screen. There was force the second shot and would not affect the
applied in order to enter. Other than that, first shot because the first shot had already
under Article 304 of the Revised Penal hit B. The second attempt has nothing to
Code, illegal possession of picklocks and do with the first.
similar tools is a crime. Thus, he can be
prosecuted for two crimes: (1) qualified In another instance, A has a very seductive
trespass to dwelling, and (2) illegal neighbor in the person of B. A had always
possession of picklocks and similar tools; been looking at B and had wanted to
not complex because one is not necessary possess her but their status were not the
means to commit the other. same. One evening, after A saw B at her
house and thought that B was already
asleep, he entered the house of B through
Desistance the window to abuse her. He, however,
found out that B was nude, so he lost
Desistance on the part of the offender interest and left. Can a be accused of
negates criminal liability in the attempted attempted rape? No, because there was
stage. Desistance is true only in the desistance, which prevented the crime from
attempted stage of the felony. If under the being consummated. The attempted stage
definition of the felony, the act done is was erased because the offender desisted
already in the frustrated stage, no amount after having commenced the commission of
of desistance will negate criminal liability. the felony.
prosecuted for attempted rape aggravated a corruption only, it is possible only in the
by dwelling. attempted stage. A corruptor gives money
to a public officer for the latter not to
In deciding whether a felony is attempted or prosecute him. The public officer received
frustrated or consummated, there are three the money but just the same, arrested him.
criteria involved: He received the money to have evidence of
corruption. Do not think that because the
(1) The manner of committing the corruptor has already delivered the money,
crime; he has already performed all the acts of
execution, and, therefore, the corruption is
(2) The elements of the crime; and already beyond the attempted stage. That
thinking does away with the concept of the
(3) The nature of the crime itself. crime that it requires two to commit. The
manner of committing the crime requires
the meeting of the minds between the giver
Manner of committing a crime and the receiver.
For example, let us take the crime of When the giver delivers the money to the
bribery. Can the crime of frustrated bribery supposed receiver, but there is no meeting
be committed? No. (Incidentally, the of the minds, the only act done by the giver
common concept of bribery is that it is the is an attempt. It is not possible for him to
act of one who corrupts a public officer. perform all the acts of execution because in
Actually, bribery is the crime of the receiver the first place, the receiver has no intention
not the giver. The crime of the giver is of being corrupted.
corruption of public official. Bribery is the Similarly, when a public officer demands a
crime of the public officer who in consideration by official duty, the corruptor
consideration of an act having to do with his turns down the demand, there is no bribery.
official duties would receive something, or
accept any promise or present in If the one to whom the demand was made
consideration thereof.) pretended to give, but he had reported the
matter to higher authorities, the money was
The confusion arises from the fact that this marked and this was delivered to the public
crime requires two to commit -- the giver officer. If the public officer was arrested, do
and the receiver. The law called the crime not think that because the public officer
of the giver as corruption of public official already had the money in his possession,
and the receiver as bribery. Giving the idea the crime is already frustrated bribery, it is
that these are independent crimes, but only attempted bribery. This is because the
actually, they cannot arise without the other. supposed corruptor has no intention to
Hence, if only one side of the crime is corrupt. In short, there is no meeting of the
present, only corruption, you cannot have a minds. On the other hand, if there is a
consummated corruption without the meeting of the minds, there is
corresponding consummated bribery. There consummated bribery or consummated
cannot be a consummated bribery without corruption. This leaves out the frustrated
the corresponding consummated stage because of the manner of committing
corruption. If you have bribery only, it is only the crime.
possible in the attempted stage. If you have
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
But indirect bribery is always consummated. stage. This was the ruling in the case of
This is because the manner of People v. Orita.
consummating the crime does not admit of
attempt or frustration. In rape, it requires the connection of the
offender and the offended party. No
You will notice that under the Revised penetration at all, there is only an attempted
Penal Code, when it takes two to commit stage. Slightest penetration or slightest
the crime, there could hardly be a frustrated connection, consummated. You will notice
stage. For instance, the crime of adultery. this from the nature of the crime requiring
There is no frustrated adultery. Only two participants.
attempted or consummated. This is
because it requires the link of two This is also true in the crime of arson. It
participants. If that link is there, the crime is does not admit of the frustrated stage. In
consummated; if such link is absent, there arson, the moment any particle of the
is only an attempted adultery. There is no premises intended to be burned is
middle ground when the link is there and blackened, that is already an indication that
when the link is absent. the premises have begun to burn. It does
not require that the entire premises be
There are instances where an intended burned to consummate arson. Because of
felony could already result from the acts of that, the frustrated stage of arson has been
execution already done. Because of this, eased out. The reasoning is that one
there are felonies where the offender can cannot say that the offender, in the crime of
only be determined to have performed all arson, has already performed all the acts of
the acts of execution when the resulting execution which could produce the
felony is already accomplished. Without the destruction of the premises through the use
resulting felony, there is no way of of fire, unless a part of the premises has
determining whether the offender has begun to burn. If it has not begun to burn,
already performed all the acts or not. It is in that means that the offender has not yet
such felonies that the frustrated stage does performed all the acts of execution. On the
not exist because without the felony being other hand, the moment it begins to burn,
accomplished, there is no way of stating the crime is consummated. Actually, the
that the offender has already performed all frustrated stage is already standing on the
the acts of execution. An example of this is consummated stage except that the
the crime of rape. The essence of the outcome did not result. As far as the stage
crime is carnal knowledge. No matter what is concerned, the frustrated stage overlaps
the offender may do to accomplish a the consummated stage.
penetration, if there was no penetration yet,
it cannot be said that the offender has Because of this reasoning by the Court of
performed all the acts of execution. We can Appeals in People v. Garcia, the Supreme
only say that the offender in rape has Court followed the analysis that one cannot
performed all the acts of execution when he say that the offender in the crime of arson
has effected a penetration. Once there is has already performed all the acts of
penetration already, no matter how slight, execution which would produce the arson
the offense is consummated. For this as a consequence, unless and until a part
reason, rape admits only of the attempted of the premises had begun to burn.
and consummated stages, no frustrated
39
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In US v. Valdez, the offender had tried to The trouble is that, in the jurisprudence
burn the premises by gathering jute sacks recognizing the objective phase and the
laying these inside the room. He lighted subjective phase, the Supreme Court
these, and as soon as the jute sacks began considered not only the acts of the offender,
to burn, he ran away. The occupants of the but also his belief. That although the
room put out the fire. The court held that offender may not have done the act to bring
what was committed was frustrated arson. about the felony as a consequence, if he
could have continued committing those acts
This case was much the way before the but he himself did not proceed because he
decision in the case of People v. Garcia believed that he had done enough to
was handed down and the Court of Appeals consummate the crime, Supreme Court
ruled that there is no frustrated arson. But said the subjective phase has passed. This
even then, the analysis in the case of US v. was applied in the case of US v. Valdez,
Valdez is correct. This is because, in where the offender, having already put
determining whether the felony is kerosene on the jute sacks, lighted the
attempted, frustrated or consummated, the same, he had no reason not to believe that
court does not only consider the definition the fire would spread, so he ran away. That
under Article 6 of the Revised Penal Code, act demonstrated that in his mind, he
or the stages of execution of the felony. believed that he has performed all the acts
When the offender has already passed the of execution and that it is only a matter of
subjective stage of the felony, it is beyond time that the premises will burn. The fact
the attempted stage. It is already on the that the occupant of the other room came
consummated or frustrated stage out and put out the fire is a cause
depending on whether a felony resulted. If independent of the will of the perpetrator.
the felony did not result, frustrated.
The ruling in the case of US v. Valdez is
The attempted stage is said to be within the still correct. But in the case of People v.
subjective phase of execution of a felony. Garcia, the situation is different. Here, the
On the subjective phase, it is that point in offender who put the torch over the house
time when the offender begins the of the offended party, the house being a
commission of an overt act until that point nipa hut, the torch which was lighted could
where he loses control of the commission of easily burn the roof of the nipa hut. But the
the crime already. If he has reached that torch burned out.
point where he can no longer control the
ensuing consequence, the crime has In that case, you cannot say that the
already passed the subjective phase and, offender believed that he had performed all
therefore, it is no longer attempted. The the acts of execution. There was not even
moment the execution of the crime has a single burn of any instrument or agency of
already gone to that point where the felony the crime.
should follow as a consequence, it is either
already frustrated or consummated. If the The analysis made by the Court of Appeals
felony does not follow as a consequence, it is still correct: that they could not
is already frustrated. If the felony follows as demonstrate a situation where the offender
a consequence, it is consummated. has performed all the acts of execution to
bring about the crime of arson and the
situation where he has not yet performed all
40
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In order that in law, a deformity can be said On the other hand, if it were a crime of theft,
to exist, three factors must concur: damage or intent to cause damage is not an
element of theft. What is necessary only is
(1) The injury should bring about the intent to gain, not even gain is important.
ugliness; The mere intent to derive some profit is
enough but the thinking must be complete
(2) The ugliness must be visible; before a crime of theft shall be
consummated. That is why we made that
(3) The ugliness would not disappear distinction between theft and estafa.
through natural healing process.
If the personal property was received by the
Along this concept of deformity in law, the offender, this is where you have to decide
plastic surgery applied to B is beside the whether what was transferred to the
point. In law, what is considered is not the offender is juridical possession or physical
artificial or the scientific treatment but the possession only. If the offender did not
natural healing of the injury. So the fact receive the personal property, but took the
that there was plastic surgery applied to B same from the possession of the owner
does not relieve the offender from the without the latter’s consent, then there is no
liability for the physical injuries inflicted. problem. That cannot be estafa; this is only
theft or none at all.
The crime committed is serious physical
injuries. It is consummated. In
In estafa, the offender receives the
determining whether a felony is attempted, property; he does not take it. But in
frustrated or consummated, you have to receiving the property, the recipient may be
consider the manner of committing the committing theft, not estafa, if what was
felony, the element of the felony and the transferred to him was only the physical or
nature of the felony itself. There is no real material possession of the object. It can
hard and fast rule. only be estafa if what was transferred to
him is not only material or physical
possession but juridical possession as well.
Elements of the crime
When you are discussing estafa, do not talk
In the crime of estafa, the element of about intent to gain. In the same manner
damage is essential before the crime could that when you are discussing the crime of
be consummated. If there is no damage, theft, do not talk of damage.
even if the offender succeeded in carting
away the personal property involved, estafa The crime of theft is the one commonly
cannot be considered as consummated. For given under Article 6. This is so because
the crime of estafa to be consummated, the concept of theft under the Revised
there must be misappropriation already Penal Code differs from the concept of
done, so that there is damage already larceny under American common law.
suffered by the offended party. If there is no Under American common law, the crime of
damage yet, the estafa can only be larceny which is equivalent to our crime of
frustrated or attempted. theft here requires that the offender must be
able to carry away or transport the thing
42
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
being stolen. Without that carrying away, because as far as the table is concern, it is
the larceny cannot be consummated. the confines of this room that is the
container. As long as he has not taken this
In our concept of theft, the offender need table out of the four walls of this room, the
not move an inch from where he was. It is taking is not complete.
not a matter of carrying away. It is a matter
of whether he has already acquired A man entered a room and found a chest
complete control of the personal property on the table. He opened it found some
involved. That complete control simply valuables inside. He took the valuables, put
means that the offender has already them in his pocket and was arrested. In this
supplanted his will from the will of the case, theft is consummated.
possessor or owner of the personal
property involved, such that he could But if he does not take the valuables but
exercise his own control on the thing. lifts the entire chest, and before he could
leave the room, he was apprehended, there
Illustration: is frustrated theft.
I placed a wallet on a table inside a room. A If the thing is stolen from a compound or
stranger comes inside the room, gets the from a room, as long as the object has not
wallet and puts it in his pocket. I suddenly been brought out of that room, or from the
started searching him and I found the wallet perimeter of the compound, the crime is
inside his pocket. The crime of theft is only frustrated. This is the confusion raised
already consummated because he already in the case of US v. Diño compared with
acquired complete control of my wallet. This People v. Adio and People v. Espiritu.
is so true when he removed the wallet from
the confines of the table. He can exercise In US v. Diño, the accused loaded boxes of
his will over the wallet already, he can drop rifle on their truck. When they were on their
this on the floor, etc. way out of the South Harbor, they were
But as long as the wallet remains on the checked at the checkpoint, so they were not
table, the theft is not yet consummated; able to leave the compound. It was held
there can only be attempted or frustrated that what was committed was frustrated
theft. If he has started lifting the wallet, it is Theft.
frustrated. If he is in the act of trying to take
the wallet or place it under, attempted. In People v. Espiritu, the accused were on
their way out of the supply house when they
“Taking” in the concept of theft, simply were apprehended by military police who
means exercising control over the thing. found them secreting some hospital linen.
It was held that what was committed was
If instead of the wallet, the man who consummated theft.
entered the room pretended to carry the
table out of the room, and the wallet is The emphasis, which was erroneously laid
there. While taking the table out of the in some commentaries, is that, in both
room, I apprehended him. It turned out that cases, the offenders were not able to pass
he is not authorized at all and is interested the checkpoint. But why is it that in one, it
only in the wallet, not the table. The crime is frustrated and in the other, it is
is not yet consummated. It is only frustrated consummated?
43
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In the case of US v. Diño, the boxes of rifle A and B are neighbors. One evening, A
were stocked file inside the compound of entered the yard of B and opened the
the South Harbor. As far as the boxes of chicken coop where B keeps his fighting
rifle are concerned, it is the perimeter of the cocks. He discovered that the fighting
compound that is the container. As long as cocks were not physically fit for cockfighting
they were not able to bring these boxes of so he returned it. The crime is
rifle out of the compound, the taking is not consummated theft. The will of the owner is
complete. On the other hand, in the case of to keep the fighting cock inside the chicken
People v. Espiritu, what were taken were coop. When the offender succeeded in
hospital linens. These were taken from a bringing the cock out of the coop, it is clear
warehouse. Hospital linens were taken that his will completely governed or
from boxes that were diffused or destroyed superseded the will of the owner to keep
and brought out of the hospital. From the such cock inside the chicken coop. Hence,
moment they took it out of the boxes where the crime was already consummated, and
the owner or the possessor had placed it, being consummated, the return of the
the control is complete. You do not have to owner’s property is not desistance
go out of the compound to complete the anymore. The offender is criminally liable
taking or the control. but he will not be civilly liable because the
object was returned.
This is very decisive in the problem
because in most problems given in the bar, When the receptacle is locked or sealed,
the offender, after having taken the object and the offender broke the same, in lieu of
out of the container changed his mind and theft, the crime is robbery with force upon
returned it. Is he criminally liable? Do not things. However, that the receptacle is
make a mistake by saying that there is a locked or sealed has nothing to do with the
desistance. If the crime is one of theft, the stage of the commission of the crime. It
moment he brought it out, it was refers only to whether it is theft or robbery
consummated. The return of the thing with force upon things.
cannot be desistance because in criminal
law, desistance is true only in the attempted
stage. You cannot talk of desistance Nature of the crime itself
anymore when it is already in the
consummated stage. If the offender has In crimes involving the taking of human life
already acquired complete control of what – parricide, homicide, and murder – in the
he intended to take, the fact that he definition of the frustrated stage, it is
changed his mind and returned the same indispensable that the victim be mortally
will no longer affect his criminal liability. It wounded. Under the definition of the
will only affect the civil liability of the crime frustrated stage, to consider the offender as
because he will no longer be required to having performed all the acts of execution,
pay the object. As far as the crime the acts already done by him must produce
committed is concerned, the offender is or be capable of producing a felony as a
criminally liable and the crime is consequence. The general rule is that there
consummated theft. must be a fatal injury inflicted, because it is
only then that death will follow.
Illustration:
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the wound is not mortal, the crime is only liability. The mere conspiracy is the crime
attempted. The reason is that the wound itself. This is only true when the law
inflicted is not capable of bringing about the expressly punishes the mere conspiracy;
desired felony of parricide, murder or otherwise, the conspiracy does not bring
homicide as a consequence; it cannot be about the commission of the crime because
said that the offender has performed all the conspiracy is not an overt act but a mere
acts of execution which would produce preparatory act. Treason, rebellion,
parricide, homicide or murder as a result. sedition, and coup d’etat are the only
crimes where the conspiracy and proposal
An exception to the general rule is the so- to commit to them are punishable.
called subjective phase. The Supreme
Court has decided cases which applied the
subjective standard that when the offender Question & Answer
himself believed that he had performed all
the acts of execution, even though no
mortal wound was inflicted, the act is Union A proposed acts of sedition to
already in the frustrated stage. Union B. Is there a crime committed?
Assuming Union B accepts the proposal,
will your answer be different?
CONSPIRACY AND PROPOSAL TO
COMMITE A FELONY There is no crime committed.
Proposal to commit sedition is not a crime.
Two ways for conspiracy to exist: But if Union B accepts the proposal, there
will be conspiracy to commit sedition which
(1) There is an agreement. is a crime under the Revised Penal Code.
(2) The participants acted in concert or When the conspiracy is only a basis of
simultaneously which is indicative of incurring criminal liability, there must be an
a meeting of the minds towards a overt act done before the co-conspirators
common criminal goal or criminal become criminally liable.
objective. When several offenders
act in a synchronized, coordinated When the conspiracy itself is a crime, this
manner, the fact that their acts cannot be inferred or deduced because
complimented each other is there is no overt act. All that there is the
indicative of the meeting of the agreement. On the other hand, if the co-
minds. There is an implied conspirator or any of them would execute
agreement. an overt act, the crime would no longer be
the conspiracy but the overt act itself.
Two kinds of conspiracy:
Illustration:
(1) Conspiracy as a crime; and
(2) Conspiracy as a manner of incurring A, B, C and D came to an agreement to
criminal liability commit rebellion. Their agreement was to
bring about the rebellion on a certain date.
When conspiracy itself is a crime, no overt Even if none of them has performed the act
act is necessary to bring about the criminal of rebellion, there is already criminal liability
45
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
arising from the conspiracy to commit the same may be deduced or inferred from the
rebellion. But if anyone of them has acts of several offenders in carrying out the
committed the overt act of rebellion, the commission of the crime. The existence of
crime of all is no longer conspiracy to a conspiracy may be reasonably inferred
commit rebellion but rebellion itself. This from the acts of the offenders when such
subsists even though the other co- acts disclose or show a common pursuit of
conspirator does not know that one of them the criminal objective. This was the ruling in
had already done the act of rebellion. People v. Pinto, 204 SCRA 9.
This legal consequence is not true if the Although conspiracy is defined as two or
conspiracy is not a crime. If the conspiracy more person coming to an agreement
is only a basis of criminal liability, none of regarding the commission of a felony and
the co-conspirators would be liable, unless deciding to commit it, the word “person”
there is an overt act. So, for as long as here should not be understood to require a
anyone shall desist before an overt act in meeting of the co-conspirator regarding the
furtherance of the crime was committed, commission of the felony. A conspiracy of
such a desistance would negate criminal the second kind can be inferred or deduced
liability. even though they have not met as long as
they acted in concert or simultaneously,
Illustration: indicative of a meeting of the minds toward
a common goal or objective.
Three persons plan to rob a bank. For as
long as none of the conspirators has Conspiracy is a matter of substance which
committed an overt act, there is no crime must be alleged in the information,
yet. But when one of them commits any otherwise, the court will not consider the
overt act, all of them shall be held liable, same.
unless a co-conspirator was absent from
the scene of the crime or he showed up, but In People v. Laurio, 200 SCRA 489, it was
he tried to prevent the commission of the held that it must be established by positive
crime and conclusive evidence, not by
conjectures or speculations.
As a general rule, if there has been a
conspiracy to commit a crime in a particular In Taer v. CA, 186 SCRA 5980, it was held
place, anyone who did not appear shall be that mere knowledge, acquiescence to, or
presumed to have desisted. The exception approval of the act, without cooperation or
to this is if such person who did not appear at least, agreement to cooperate, is not
was the mastermind. enough to constitute a conspiracy. There
must be an intentional participation in the
We have to observe the distinction between crime with a view to further the common
the two because conspiracy as a crime, felonious objective.
must have a clear and convincing evidence
of its existence. Every crime must be When several persons who do not know
proved beyond reasonable doubt. each other simultaneously attack the victim,
the act of one is the act of all, regardless of
When the conspiracy is just a basis of the degree of injury inflicted by any one of
incurring criminal liability, however, the them. All will be liable for the
46
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Composite crimes
48
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Composite crimes are crimes which, in As a general rule, when there is conspiracy,
substance, consist of more than one crime the rule is that the act of one is the act of
but in the eyes of the law, there is only one all. This principle applies only to the crime
crime. For example, the crimes of robbery agreed upon.
with homicide, robbery with rape, robbery
with physical injuries. The exception is if any of the co-conspirator
would commit a crime not agreed upon.
In case the crime committed is a composite This happens when the crime agreed upon
crime, the conspirator will be liable for all and the crime committed by one of the co-
the acts committed during the commission conspirators are distinct crimes.
of the crime agreed upon. This is because,
in the eyes of the law, all those acts done in Exception to the exception: In acts
pursuance of the crime agreed upon are constituting a single indivisible offense,
acts which constitute a single crime. even though the co-conspirator performed
different acts bringing about the composite
Illustrations: crime, all will be liable for such crime. They
can only evade responsibility for any other
A, B, and C decided to commit robbery in crime outside of that agreed upon if it is
the house of D. Pursuant to their proved that the particular conspirator had
agreement, A would ransack the second tried to prevent the commission of such
floor, B was to wait outside, and C would other act.
stay on the first floor. Unknown to B and C,
A raped the girl upstairs. All of them will be The rule would be different if the crime
liable for robbery with rape. The crime committed was not a composite crime.
committed is robbery with rape, which is not
a complex crime, but an indivisible felony Illustration:
under the Article 294 of the Revised Penal
Code. Even if B and C did not know that A, B and C agreed to kill D. When they saw
rape was being committed and they agreed the opportunity, A, B and C killed D and
only and conspired to rob, yet rape was part after that, A and B ran into different
of robbery. Rape can not be separated directions. C inspected the pocket of the
from robbery. victim and found that the victim was
wearing a ring – a diamond ring – and he
A, B and C agreed to rob the house of D. It took it. The crimes committed are homicide
was agreed that A would go the second and theft. As far as the homicide is
floor, B would stay in the first floor, and C concerned, A, B and C are liable because
stands guard outside. All went to their that was agreed upon and theft was not an
designated areas in pursuit of the plan. integral part of homicide. This is a distinct
While A was ransacking the second floor, crime so the rule will not apply because it
the owner was awakened. A killed him. A, was not the crime agreed upon. Insofar as
B and C will be liable for robbery with the crime of theft is concerned, C will be the
homicide. This is because, it is well settled only one liable. So C will be liable for
that any killing taking place while robbery is homicide and theft.
being committed shall be treated as a single
indivisible offense.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
What the examiner had in mind was Articles (3) According to their gravity
3, 6 and 9. Do not write the classification of
felonies under Book 2 of the Revised Penal Under Article 9, felonies are
Code. That was not what the examiner had classified as grave felonies or those
in mind because the question does not to which attaches the capital
require the candidate to classify but also to punishment or penalties which in
define. Therefore, the examiner was after any of their periods are afflictive;
the classifications under Articles 3, 6 and 9. less grave felonies or those to which
the law punishes with penalties
Felonies are classified as follows: which in their maximum period was
correccional; and light felonies or
(1) According to the manner of their those infractions of law for the
commission commission of which the penalty is
arresto menor.
Under Article 3, they are classified
as, intentional felonies or those Why is it necessary to determine whether
committed with deliberate intent; the crime is grave, less grave or light?
and culpable felonies or those
resulting from negligence, reckless To determine whether these felonies can be
imprudence, lack of foresight or lack complexed or not, and to determine the
of skill. prescription of the crime and the
prescription of the penalty. In other words,
(2) According to the stages of their these are felonies classified according to
execution their gravity, stages and the penalty
attached to them. Take note that when the
Under Article 6., felonies are Revised Penal Code speaks of grave and
classified as attempted felony when less grave felonies, the definition makes a
the offender commences the reference specifically to Article 25 of the
commission of a felony directly by Revised Penal Code. Do not omit the
overt acts, and does not perform all phrase “In accordance with Article 25”
the acts of execution which should because there is also a classification of
produce the felony by reason of penalties under Article 26 that was not
some cause or accident other than applied.
his own spontaneous desistance;
frustrated felony when the offender If the penalty is fine and exactly P200.00, it
commences the commission of a is only considered a light felony under
felony as a consequence but which Article 9.
would produce the felony as a
consequence but which If the fine is imposed as an alternative
nevertheless do not produce the penalty or as a single penalty, the fine of
50
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the penalty is exactly P200.00, apply For example, a special law punishes a
Article 26. It is considered as correctional certain act as a crime. The special law is
penalty and it prescribes in 10 years. If the silent as to the civil liability of one who
offender is apprehended at any time within violates the same. Here is a person who
ten years, he can be made to suffer the violated the special law and he was
fine. prosecuted. His violation caused damage
or injury to a private party. May the court
This classification of felony according to pronounce that he is civilly liable to the
gravity is important with respect to the offended party, considering that the special
question of prescription of crimes. law is silent on this point? Yes, because
Article 100 of the Revised Penal Code may
In the case of light felonies, crimes be given suppletory application to prevent
prescribe in two months. After two months, an injustice from being done to the offended
the state loses the right to prosecute unless party. Article 100 states that every person
the running period is suspended. If the criminally liable for a felony is also civilly
offender escapes while in detention after he liable. That article shall be applied
has been loose, if there was already suppletory to avoid an injustice that would
judgment that was passed, it can be be caused to the private offended party, if
promulgated even if absent under the New he would not be indemnified for the
Rules on Criminal Procedure. If the crime damages or injuries sustained by him.
is correctional, it prescribes in ten years,
except arresto mayor, which prescribes in In People v. Rodriguez, it was held that
five years. the use of arms is an element of rebellion,
so a rebel cannot be further prosecuted for
possession of firearms. A violation of a
SUPPLETORY APPLICATION OF THE special law can never absorb a crime
REVISED PENAL CODE punishable under the Revised Penal Code,
because violations of the Revised Penal
Article 10 is the consequence of the legal Code are more serious than a violation of a
requirement that you have to distinguish special law. But a crime in the Revised
those punished under special laws and Penal Code can absorb a crime punishable
those under the Revised Penal Code. With by a special law if it is a necessary
regard to Article 10, observe the distinction. ingredient of the crime in the Revised Penal
Code.
In Article 10, there is a reservation In the crime of sedition, the use of firearms
“provision of the Revised Penal Code may is not an ingredient of the crime. Hence,
be applied suppletorily to special laws”. two prosecutions can be had: (1) sedition;
You will only apply the provisions of the and (2) illegal possession of firearms.
Revised Penal Code as a supplement to the
special law, or simply correlate the violated But do not think that when a crime is
special law, if needed to avoid an injustice. punished outside of the Revised Penal
If no justice would result, do not give Code, it is already a special law. For
example, the crime of cattle-rustling is not a
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
There are two others which are found Then, Article 89 provides how criminal
elsewhere in the provisions of the Revised liability is extinguished:
Penal Code:
Death of the convict as to the personal
(1) Absolutory cause; and penalties, and as to pecuniary penalties,
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Under Article 219, discovering secrets In instigation, the criminal plan or design
through seizure of correspondence of the exists in the mind of the law enforcer with
ward by their guardian is not penalized. whom the person instigated cooperated so
it is said that the person instigated is acting
Under Article 332, in the case of theft, only as a mere instrument or tool of the law
swindling and malicious mischief, there is enforcer in the performance of his duties.
no criminal liability but only civil liability,
when the offender and the offended party On the other hand, in entrapment, a
are related as spouse, ascendant, criminal design is already in the mind of the
descendant, brother and sister-in-law living person entrapped. It did not emanate from
together or where in case the widowed the mind of the law enforcer entrapping him.
spouse and the property involved is that of Entrapment involves only ways and means
the deceased spouse, before such property which are laid down or resorted to facilitate
had passed on to the possession of third the apprehension of the culprit.
parties.
Illustrations:
Under Article 344, in cases of seduction,
abduction, acts of lasciviousness, and rape, An agent of the narcotics command had
the marriage of the offended party shall been tipped off that a certain house is being
extinguish the criminal action. used as an opium den by prominent
members of the society. The law enforcers
cannot themselves penetrate the house
Absolutory cause has the effect of an because they do not belong to that circle so
exempting circumstance and they are what they did was to convince a prominent
predicated on lack of voluntariness like member of society to visit such house to
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
find out what is really happening inside and sell him two kilos of dried marijuana leaves
that so many cars were congregating there. and this fellow gave him and delivered
The law enforcers told the undercover man them. He apprehended the fellow.
that if he is offered a cigarette, then he Defense is instigation, because he would
should try it to find out whether it is loaded not have come out for the marijuana leaves
with dangerous drugs or not. This fellow if the law enforcer had not instigated him. It
went to the place and mingled there. The is a case of entrapment because the fellow
time came when he was offered a stick of is already committing the crime from the
cigarette and he tried it to see if the mere fact that he is possessing marijuana.
cigarette would affect him. Unfortunately, Even without selling, there is a crime
the raid was conducted and he was among committed by him: illegal possession of
those prosecuted for violation of the dangerous drugs. How can one sell
Dangerous Drugs Act. Is he criminally marijuana if he is not in possession thereof.
liable? No. He was only there upon The law enforcer is only ascertaining if this
instigation of the law enforcers. On his own, fellow is selling marijuana leaves, so this is
he would not be there. The reason he is entrapment, not instigation. Selling is not
there is because he cooperated with the law necessary to commit the crime, mere
enforcers. There is absence of criminal possession is already a crime.
intent.
A fellow wants to make money. He was
If the law enforcer were able to enter the approached by a law enforcer and was
house and mingle there, nobody would offer asked if he wanted to deliver a package to a
him a cigarette because he is unknown. certain person. When that fellow was
When he saw somebody, he pleaded to delivering the package, he was
spare him a smoke so this fellow handed to apprehended. Is he criminally liable? This
him the cigarette he was smoking and is a case of instigation; he is not committing
found out that it was loaded with a a crime.
dangerous drug. He arrested the fellow.
Defense was that he would not give a A policeman suspected a fellow selling
cigarette if he was not asked. Is he marijuana. The law enforcer asked him,
criminally liable? Yes. This is a case of “Are you selling that? How much? Could
entrapment and not instigation. Even if the you bring that to the other fellow there?”
law enforcer did not ask for a cigarette, the When he brought it there, the person, who
offender was already committing a crime. happens to be a law enforcer, to whom the
The law enforcer ascertained if it is a package was brought to found it to be
violation of the Dangerous Drugs Act. The marijuana. Even without bringing, he is
means employed by the law enforcer did already possessing the marijuana. The fact
not make the accused commit a crime. that he was appointed to another person to
Entrapment is not an absolutory cause find out its contents, is to discover whether
because in entrapment, the offender is the crime is committed. This is entrapment.
already committing a crime.
The element which makes instigation an
In another instance, a law enforcer absolutory cause is the lack of criminal
pretended to be a buyer of marijuana. He intent as an element of voluntariness.
approached a person suspected to be a
pusher and prevailed upon this person to
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the instigator is a law enforcer, the person In case of somnambulism or one who acts
instigated cannot be criminally liable, while sleeping, the person involved is
because it is the law enforcer who planted definitely acting without freedom and
that criminal mind in him to commit the without sufficient intelligence, because he is
crime, without which he would not have asleep. He is moving like a robot, unaware
been a criminal. If the instigator is not a law of what he is doing. So the element of
enforcer, both will be criminally liable, you voluntariness which is necessary in dolo
cannot have a case of instigation. In and culpa is not present. Somnambulism is
instigation, the private citizen only an absolutory cause. If element of
cooperates with the law enforcer to a point voluntariness is absent, there is no criminal
when the private citizen upon instigation of liability, although there is civil liability, and if
the law enforcer incriminates himself. It the circumstance is not among those
would be contrary to public policy to enumerated in Article 12, refer to the
prosecute a citizen who only cooperated circumstance as an absolutory cause.
with the law enforcer. The private citizen
believes that he is a law enforcer and that is Mistake of fact is not absolutory cause. The
why when the law enforcer tells him, he offender is acting without criminal intent.
believes that it is a civil duty to cooperate. So in mistake of fact, it is necessary that
had the facts been true as the accused
If the person instigated does not know that believed them to be, this act is justified. If
the person is instigating him is a law not, there is criminal liability, because there
enforcer or he knows him to be not a law is no mistake of fact anymore. The offender
enforcer, this is not a case of instigation. must believe he is performing a lawful act.
This is a case of inducement, both will be
criminally liable. Extenuating circumstances
In entrapment, the person entrapped should The effect of this is to mitigate the criminal
not know that the person trying to entrap liability of the offender. In other words, this
him was a law enforcer. The idea is has the same effect as mitigating
incompatible with each other because in circumstances, only you do not call it
entrapment, the person entrapped is mitigating because this is not found in
actually committing a crime. The officer Article 13.
who entrapped him only lays down ways
and means to have evidence of the Illustrations:
commission of the crime, but even without
those ways and means, the person An unwed mother killed her child in order to
entrapped is actually engaged in a violation conceal a dishonor. The concealment of
of the law. dishonor is an extenuating circumstance
insofar as the unwed mother or the
Instigation absolves the person instigated maternal grandparents is concerned, but
from criminal liability. This is based on the not insofar as the father of the child is
rule that a person cannot be a criminal if his concerned. Mother killing her new born
mind is not criminal. On the other hand, child to conceal her dishonor, penalty is
entrapment is not an absolutory cause. It is lowered by two degrees. Since there is a
not even mitigating. material lowering of the penalty or
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
mitigating the penalty, this is an extenuating (2) The act complained of is considered
circumstance. to have been done within the
bounds of law; hence, it is legitimate
The concealment of honor by mother in the and lawful in the eyes of the law;
crime of infanticide is an extenuating
circumstance but not in the case of (3) Since the act is considered lawful,
parricide when the age of the victim is three there is no crime, and because there
days old and above. is no crime, there is no criminal;
In the crime of adultery on the part of a (4) Since there is no crime or criminal,
married woman abandoned by her there is no criminal liability as well
husband, at the time she was abandoned as civil liability.
by her husband, is it necessary for her to
seek the company of another man. In exempting circumstances –
Abandonment by the husband does not
justify the act of the woman. It only (1) The circumstances affect the actor,
extenuates or reduces criminal liability. not the act;
When the effect of the circumstance is to
lower the penalty there is an extenuating (2) The act complained of is actually
circumstance. wrongful, but the actor acted without
voluntariness. He is a mere tool or
A kleptomaniac is one who cannot resist the instrument of the crime;
temptation of stealing things which appeal
to his desire. This is not exempting. One (3) Since the act complained of is
who is a kleptomaniac and who would steal actually wrongful, there is a crime.
objects of his desire is criminally liable. But But because the actor acted without
he would be given the benefit of a mitigating voluntariness, there is absence of
circumstance analogous to paragraph 9 of dolo or culpa. There is no criminal;
Article 13, that of suffering from an illness
which diminishes the exercise of his will (4) Since there is a crime committed but
power without, however, depriving him of there is no criminal, there is civil
the consciousness of his act. So this is an liability for the wrong done. But
extenuating circumstance. The effect is to there is no criminal liability.
mitigate the criminal liability. However, in paragraphs 4 and 7 of
Article 12, there is neither criminal
nor civil liability.
Distinctions between justifying
circumstances and exempting When you apply for justifying or exempting
circumstances circumstances, it is confession and
avoidance and burden of proof shifts to the
In justifying circumstances – accused and he can no longer rely on
weakness of prosecution’s evidence
(1) The circumstance affects the act,
not the actor;
Justifying circumstances
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Since the justifying circumstances are in the holding the bolo, there is no imminent
nature of defensive acts, there must be danger to the life or limb of B. Therefore,
always unlawful aggression. The the act of B in shooting A is not justified.
reasonableness of the means employed
depends on the gravity of the aggression. If Defense of rights is included in the
the unlawful aggressor was killed, this can circumstances of defense and so is defense
only be justified if it was done to save the of honor.
life of the person defending or the person
being defended. The equation is “life was In US v. Mateo, while a woman was
taken to save life.” sleeping, her sister and brother-in-law went
to see a movie and came home late that
evening. The accused was already asleep.
Self Defense The brother-in-law came up first while his
wife was still in the staircase. He started
In justifying circumstances, the most feeling through the dark, and in the process,
important is self-defense. When this is he awakened the accused. Believing that
given in the bar, it is the element of unlawful her honor was at stake, she got a pair of
aggression that is in issue. Never confuse scissors and stabbed the man. When the
unlawful aggression with provocation. Mere lights were turned on, she realized that she
provocation is not enough. had stabbed her brother-in-law. The
accused claimed as having acted in
Illustration: defense of her honor and mistake of fact.
She said that she believed that her own
A and B are long standing enemies. honor was at stake. It was held that the
Because of their continuous quarrel over whole matter is purely her imagination.
the boundaries of their adjoining properties, Touching the arm could not produce such
when A saw B one afternoon, he danger as would really be imminent to the
approached the latter in a menacing honor of the woman.
manner with a bolo in his hand. When he
was about five feet away from B, B pulled Apparently, under the Revised Penal Code,
out a revolver and shot A on the chest, the honor of a woman in respect of her
killing him. Is B criminally liable? What defense is equated with her virginity.
crime was committed, if any?
In US v. Jaurigue, it was held that it was
The act of A is nothing but a provocation. It not possible to rape the accused because
cannot be characterized as an unlawful the whole thing transpired in the church,
aggression because in criminal law, an where there were so many people.
unlawful aggression is an attack or a Therefore, her availing of defense of honor
threatened attack which produces an is not tenable. She could not possibly be
imminent danger to the life and limb of the raped in that place. Defense of honor here
one resorting to self-defense. In the facts of is being equated with one of abuse of
the problem given above, what was said chastity of a woman. In this case, the
was that A was holding a bolo. That bolo offended party placed his hand on the thigh
does not produce any real or imminent of the woman who was then praying. There
danger unless a raises his arm with the was already some sort of aggression but it
bolo. As long as that arm of A was down was not enough to warrant the act resorted
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
to by the accused in getting a small knife was held that the hacking was not justified.
from her bag and thrusting it on the chest of Actually, when she killed the supposed
the offended party. unlawful aggressor, her life and limb were
no longer in imminent danger. That is the
Do not confuse unlawful aggression with focal point.
provocation. What justifies the killing of a
supposed unlawful aggressor is that if the At the time the accused killed the supposed
offender did not kill the aggressor, it will be unlawful aggressor, was her life in danger?
his own life that will be lost. That will be the If the answer is no, there is no self-defense.
situation. If that is not the situation, even if But while there may be no justifying
there was an unlawful aggression that has circumstance, do not forget the incomplete
already begun, you cannot invoke self- self-defense. This is a mitigating
defense. circumstance under paragraph 1 of Article
13. This mitigating circumstance is either
Illustration: privileged or ordinary. If ordinary, it has the
effect of reducing the imposable penalty to
Two policemen quarreled inside a police the minimum period. But if it is privileged, it
precinct. One shot the other. The other has the effect of lowering the penalty by
was wounded on his thigh. The policeman one to two degrees, depending on how the
who was wounded on the thigh jumped on court will regard the absence or presence of
the arm of the fellow who shot him. In the conditions to justify the act.
process, they wrestled for possession of the
gun. The policeman who shot the other guy
fell on the floor. On that point, this Defense of property rights
policeman who was shot at the thigh was
already able to get hold of the revolver. In This can only be invoked if the life and limb
that position, he started emptying the of the person making the defense is also
revolver of the other policeman who was the subject of unlawful aggression. Life
lying on the floor. In this case, it was held cannot be equal to property.
that the defense of self-defense is no
available. The shooting was not justified. Defense of stranger
the relative defended, and that the person Second, if only the element of unlawful
defending did not contribute to the unlawful aggression is present, the other requisites
aggression. being absent, the offender shall be given
only the benefit of an ordinary mitigating
circumstance.
Question & Answer
Third, if aside from the element of unlawful
aggression another requisite, but not all, are
The person being defended was a present, the offender shall be given the
relative – a first cousin. But the fellow who benefit of a privileged mitigating
killed the aggressor had some score to circumstance. In such a case, the
settle with the aggressor. Is he entitled to a imposable penalty shall be reduced by one
justifying circumstance? or two degrees depending upon how the
court regards the importance of the
Yes. In law, the condition that a requisites present. Or absent.
person making the defense did not act out
of revenge, resentment or evil motive is not If the question refers generally to justifying
a requirement in defense of relative. This is or exempting circumstances, the question
only required in defense of strangers. should be, “how may incomplete justifying
circumstance affect criminal liability of the
offender, if at all?”
Incomplete self-defense or incomplete
justifying circumstance or incomplete Make a separate answer with respect to
exempting circumstances self-defense, defense of relative or defense
of stranger because in these cases, you
When you say incomplete justifying always have to specify the element of
circumstance, it means that not all the unlawful aggression; otherwise, there would
requisites to justify the act are present or be no incomplete self-defense, defense of
not the requisites to exempt from criminal relative or defense of stranger. In general,
liability are present. with respect to other circumstances, you
need only to say this:
How, if at all, may incomplete self-defense If less than a majority of the requisites
affect the criminal liability of the offender? necessary to justify the act or exempt from
criminal liability are present, the offender
If the question specifically refers to shall only be entitled to an ordinary
incomplete self-defense, defense of relative mitigating circumstance.
or defense of stranger, you have to qualify
your answer. If a majority of the requisites needed to
justify the act or exempt from criminal
First, to have incomplete self-defense, the liability are present, the offender shall be
offended party must be guilty of unlawful given the benefit of a privileged mitigating
aggression. Without this, there can be no circumstance. The penalty shall be lowered
incomplete self-defense, defense of by one or two degrees. When there are
relative, or defense of stranger. only two conditions to justify the act or to
exempt from criminal liability, the presence
of one shall be regarded as the majority.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Civil liability is based on the benefit derived Invariably, when you are given a problem
and not on the act, damage or injury on this premise, and the first condition is
caused. It is wrong to treat this as an present, but the second is not because the
exception to the rule that in justifying offender acted with culpa, the offender will
circumstances, there is no criminal nor civil be entitled to a privelege mitigating
liability, on the principle that “no one should circumstance. This is what you call
enrich himself at the expense of another”. incomplete justification of fulfillment of duty
or incomplete justification of exercise of a
Illustration: right. In that case, the penalty would be
reduced by one or two degrees.
A and B are owners of adjoining lands. A
owns the land for planting certain crops. B In People v. Oanis and Callanta, the
owns the land for raising certain goats. C accused Chief of Police and the
used another land for a vegetable garden. constabulary soldier were sent out to arrest
There was heavy rain and floods. Dam was a certain Balagtas, supposedly a notorious
opened. C drove all the goats of B to the bandit. There was an order to kill Balagtas
land of A. The goats rushed to the land of if he would resist. The accused arrived at
A to be saved, but the land of A was the house of a dancer who was supposedly
destroyed. The author of the act is C, but C the girlfriend of Balagtas. When they were
is not civilly liable because he did not there, they saw a certain person who
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Do not confuse fulfillment of a duty with In exempting circumstances, the reason for
self-defense. the exemption lies on the involuntariness of
the act – one or some of the ingredients of
Illustration: voluntariness such as criminal intent,
intelligence, or freedom of action on the part
A, a policeman, while waiting for his wife to of the offender is missing. In case it is a
go home, was suddenly stabbed at the back culpable felony, there is absence of
by B, a hoodlum, who mistook him for freedom of action or intelligence, or
someone else. When A saw B, he drew his absence of negligence, imprudence, lack of
revolver and went after B. After firing a shot foresight or lack of skill.
in the air, B did not stop so A shot B who
was hit at a vital part of the body. B died.
Is the act of A justified? Imbecility and insanity
In exempting circumstances, the most (1) If the offender is within the bracket
important issue is how the minority of the of nine years old exactly or less, he
offender affected his criminal liability. It is exempt from criminal liability but
seems that the view of many is that when not from civil liability. This type of
the offender is a youthful offender, he must offenders are absolutely exempt.
necessarily be confined in a reformatory. Even if the offender nine years or
This is wrong. A youthful offender can only below acted with discernment, this
be confined in a reformatory upon order of should not be taken against him
the court. Under the amendment to because in this age bracket, the
Presidential Decree No. 603, Presidential exemption is absolute.
Decree No. 1179 requires that before a
youthful offender may be given the benefit if (2) If over nine but below 15, a
a suspension of sentence, there must be an distinction has to be made whether
application filed with the court which should the offender acted with or without
pronounce sentence. Note that the discernment. The burden is upon
commitment of the offender in a reformatory the prosecution to prove that the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
A person who is driving his car within the punished under the second paragraph of
speed limit, while considering the condition Article 275.
of the traffic and the pedestrians at that
time, tripped on a stone with one of his car
tires. The stone flew hitting a pedestrian on Compulsion of irresistible force and
the head. The pedestrian suffered profuse under the impulse of an uncontrollable
bleeding. What is the liability of the driver? fear
There is no civil liability under paragraph 4 The offender must be totally deprived of
of Article 12. Although, this is just an freedom. If the offender has still freedom of
exempting circumstance, where generally choice, whether to act or not, even if force
there is civil liability, yet, in paragraph 4 of was employed on him or even if he is
Article 12, there is no civil liability as well as suffering from uncontrollable fear, he is not
criminal liability. The driver is not under exempt from criminal liability because he is
obligation to defray the medical expenses. still possessed with voluntariness. In
exempting circumstances, the offender
However, correlate paragraph 4 of Article must act without voluntariness.
12 with the second paragraph of Article
275. Article 275 gives you the crime of In a situation where the offender would
abandoning the victim of one’s own otherwise be exempt, but the requisites for
accident. It is a crime. Here, the accident exemption are not all present, the offender
referred to in paragraph 2 of Article 275 is in is still entitled to a mitigating circumstance
the concept of paragraph 4 of Article 12. of incomplete exemption under paragraph
This means that the offender must be 1 of Article 13. Apply the rule if majority of
performing a lawful act, that he was doing it the requisites to exempt from criminal
with due care but somehow, injury resulted liability are present. The offender shall be
by mere accident without fault or intention given the benefit of privelege mitigating
of causing it. circumstances. That means that the penalty
prescribed of the crime committed shall be
If at the very beginning, the offender was reduced by one or two degrees in
negligent, you do not apply Article 275, accordance with Article 69 of the Revised
paragraph 2. Instead, it will be Article 365 Penal Code. If less than a majority of the
on criminal negligence. Notice that in the requisites for exemption are present, the
last paragraph of Article 365, in the case of offender shall be given only the benefit of
the so-called hit and run drivers who have ordinary mitigating circumstances. That
injured somebody and would abandon the means the penalty shall be reduced to the
victim of the accident, the penalty is minimum period of the prescribed penalty,
qualified to a higher degree. Here, under unless the mitigating circumstance is offset
paragraph 4 of Article 12, the infliction of by an aggravating circumstance.
the injury by mere accident does not give
rise to a criminal or civil liability, but the
person who caused the injury is duty bound Mitigating circumstances
to attend to the person who was injured. If
he would abandon him, it is in that Distinctions between ordinary mitigating
abandonment that the crime arises which is circumstances and privileged mitigating
circumstances
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
imprisonment. But then in the problem For purposes of lowering the penalty by one
given, the offender is a 17-year old boy. or two degrees, the age of the offender at
That circumstance is privileged. So before the time of the commission of the crime
you go in the Indeterminate Sentence Law, shall be the basis, not the age of the
you have to apply that circumstance first. offender at the time the sentence is to be
Being a 17-year old boy, therefore, the imposed. But for purposes of suspension of
penalty would go one degree lower and the the sentence, the age of the offender at the
penalty for parricide which now stands at time the crime was committed is not
reclusion perpetua will go down to reclusion considered, it is the age of the offender at
temporal. Reclusion temporal is already the time the sentence is to be promulgated.
governed by the Indeterminate Sentence
Law.
Praeter intentionem
The answer, therefore, is yes. He
shall be given the benefit of the The common circumstance given in the bar
Indeterminate Sentence Law. Although the of praeter intentionem, under paragraph 3,
penalty prescribed for the crime committed means that there must be a notable
is reclusion perpetua, that is not the disproportion between the means employed
imposable penalty, since being 17 years old by the offender compared to that of the
is a privilege mitigating circumstance. That resulting felony. If the resulting felony could
privilege lowers the penalty by one degree. be expected from the means employed, this
The imposable penalty, therefore, is circumstance does not avail. This
reclusion temporal. The Indeterminate circumstance does not apply when the
Sentence Law applies to this and so the crime results from criminal negligence or
offender will be given its benefit. culpa. When the crime is the product of
reckless imprudence or simple negligence,
Criminal laws are to be construed mitigating circumstances does not apply.
always in a manner liberal or lenient to the This is one of the three instances where the
offender. Between giving the offender the offender has performed a felony different
benefit of the Indeterminate Sentence Law from that which he intended. Therefore,
and withholding it away from him, there is this is the product of intentional felony, not a
more reason to give him its benefit. It is culpable one.
wrong for you to determine whether the
Indeterminate Sentence Law will apply or
not on the basis of reclusion perpetua Sufficient threat or provocation
because that is not the imposable penalty.
The moment you do that, you disregard the This is mitigating only if the crime was
privileged character of minority. You are committed on the very person who made
only treating it as an ordinary mitigating the threat or provocation. The common set-
circumstance. Privilege mitigating up given in a bar problem is that of
circumstance will apply over and above all provocation was given by somebody. The
other considerations. When you arrive at person provoked cannot retaliate against
the correct penalty, that is the time when him; thus, the person provoked retaliated on
you find out whether the Indeterminate a younger brother or on an elder father.
Sentence Law will apply or not. Although in fact, there is sufficient
provocation, it is not mitigating because the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
one who gives the provocation is not the However, the recent rulings of the Supreme
one against whom the crime was Court, as well as the Court of Appeals, has
committed. stretched this criterion – it is not only a
matter of time anymore. Before, there was a
ruling that if a period of one hour had
Question & Answer lapsed between the provocation and the
commission of the felony, this mitigating
circumstance is no longer applicable.
A was walking in front of the house
of B. B at that time was with his brother C. C Illustration:
told B that sometime in the past, A boxed
him, and because he was small, he did not The accused went to a barrio dance. In that
fight back. B approached A and boxed him, gathering, there was a bully and he told the
but A cannot hit back at B because B is accused that he is not allowed to go inside.
bigger, so A boxed C. Can A invoke The accused tried to reason out but the
sufficient provocation to mitigate criminal bully slapped him several times in front of
liability? so many people, some of whom were ladies
who were being courted by the accused, so
No. Sufficient provocation must he was humiliated and embarrassed.
come from the offended party. There may However, he cannot fight the bully at that
actually be sufficient provocation which time because the latter was much bigger
immediately preceded the act, but if and heavier. Accused had no choice but to
provocation did not come from the person go home. When he saw the bully again, this
offended, paragraph 4, Article 13 will not time, he was armed with a knife and he
apply. stabbed the bully to death. The evidence
for the accused showed that when he went
home, he was not able to sleep throughout
The commission of the felony must be the night, thinking of the humiliation and
immediate to the threat or provocation in outrage done to him, despite the lapse of
order that this circumstance be mitigating. about 22 hours. The Supreme Court gave
If there is sufficient break of time before the him the benefit of this mitigating
provocation or threat and the consequent circumstance. The reason stated by the
commission of the crime, the law Supreme Court for allowing the accused to
presupposes that during that interval, be benefited by this mitigating circumstance
whatever anger or diminished self control is that the effect of the humiliation and
may have emerged from the offender had outrage emitted by the offended party as a
already vanished or disappeared. In provocation upon the accused was still
applying this mitigating circumstance, the present when he committed the crime and,
courts are generally considering that there therefore, the reason for paragraph 4 still
must be no break between the provocation applies. The accused was still acting under
or threat and the commission of the felony. a diminished self control because he was
In other words, the felony was committed thinking of the humiliation he suffered in the
precisely because he was then and there hands of the offended party. The outrage
provoked. was so serious unless vindicated.
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another set of facts. Since they are However, that requisite which in the first
predicated on different set of facts, they place, the offender must have surprised
may be appreciated together, although they his/her spouse actually committing sexual
arose from one and the same case. Hence, intercourse should be present. If the
the prohibition against considering all these surprising was done not in the actual act of
mitigating circumstances together and not sexual intercourse but before or after it,
as one applies only if they would be taken then Article 247 does not apply.
on the basis of the same set of facts.
Although this is the ruling, still, the accused
If the case involves a series of facts, then will be given the benefit of sufficient
you can predicate any one of these provocation if the intercourse was done in
circumstances on one fact and the other on his dwelling. If this act was done
another fact and so on. somewhere else and the accused kills the
paramour or the spouse, this may be
The passion must be legitimate. As a rule, considered as mitigation of a grave offense
it cannot be based on common law to him or otherwise as a situation sufficient
relationship because common law to create passion or obfuscation.
relationships are illicit. However, consider Therefore, when a married man upon
whether passion or obfuscation is coming home, surprises his wife who was
generated by common law relationship or nude and lying with another man who was
by some other human consideration. also nude, Article 247 does not apply. If he
kills them, vindication of a grave offense will
In a case where the relationship between be mitigating in favor of the offender.
the accused and the woman he was living
with was one of common law, he came Illustrations:
home and surprised his common law wife
having sexual intercourse with a friend. This A is courting B, a receptionist in a
infuriated him. He killed the friend and he beerhouse. C danced with B. A saw this
claimed passion or obfuscation. The trial and stabbed C. It was held that jealousy is
court denied his claim because the an acknowledged basis of passion.
relationship was a common law one.
A, a male classmate is escorting B, a
On review, the accused was given the female classmate. On the way out, some
benefit of the circumstances and the basis men whistled lustfully. The male classmate
of considering passion or obfuscation in stabbed said men. This was held to be
favor of the accused was the act of the obfuscation.
common law wife in committing adultery
right from the conjugal bed. Whether or not When a man saw a woman bathing, almost
they are married, any man who discovers naked, for which reason he raped her, such
that infidelity was committed on the very man cannot claim passion as a mitigating
bed provided by him to the woman would circumstance.
naturally be subjected to obfuscation.
A man and a woman were living together
When a married person surprised his better for 15 years. The man left the village where
half in the act of sexual intercourse with they were living and never returned home.
another, he gets the benefit of Article 247. The common law wife learned that he was
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
accused was to insure his safety, his arrest authorities to the place where he disposed
by policemen pursuing him being inevitable, of the loot has been considered as
the surrender is not spontaneous. analogous or equivalent to voluntary
surrender.
Do not confuse this with mere betrayal of Dwelling need not be owned by the
trust. This is aggravating only when the offended party. It is enough that he used
very offended party is the one who reposed the place for his peace of mind, rest,
the confidence. If the confidence is comfort and privacy. The rule that dwelling,
reposed by another, the offended party is in order to be aggravating must be owned
different from the fellow who reposed the by the offended party is no longer absolute.
confidence and abuse of confidence in this Dwelling can be aggravating even if it is not
case is not aggravating. owned by the offended party, provided that
the offended party is considered a member
Illustrations: of the family who owns the dwelling and
equally enjoys peace of mind, privacy and
A mother left her young daughter with the comfort.
accused because she had nobody to leave
the child with while she had to go on an Illustration:
errand. The accused abused the child. It
was held that the abuse of confidence is not Husband and wife quarreled. Husband
aggravating. What is present is betrayal of inflicted physical violence upon the wife.
trust and that is not aggravating. The wife left the conjugal home and went to
the house of her sister bringing her
In a case where the offender is a servant, personal belongings with her. The sister
the offended party is one of the members of accommodated the wife in the formers
the family. The servant poisoned the child. home. The husband went to the house of
It was held that abuse of confidence is the sister-in-law and tried to persuade the
aggravating. This is only true however, if wife to come back to the conjugal home but
the servant was still in the service of the the wife refused because she is more at
family when he did the killing. If he was peace in her sister's house than in the
driven by the master already out of the conjugal abode. Due to the wife's refusal to
house for some time and he came back and go back to the conjugal home and live with
poisoned the child, abuse of confidence is the husband, the husband pulled out a knife
no longer aggravating. The reason is and stabbed the wife which caused her
because that confidence has already been death. It was held that dwelling was
terminated when the offender was driven aggravating although it is not owned by the
out of the house. offended party because the offended party
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
is considered as a member of the family stairs which are used to reach the second
who owns the dwelling and that dwelling is floor is considered a dwelling because the
where she enjoyed privacy. Peace of mind second floor cannot be enjoyed without the
and comfort. stairs. If the offended party was assaulted
while on the stairs, dwelling is already
Even a room in a hotel if rented as a aggravating. For this reason, considering
dwelling, like what the salesmen do when that any dependency necessary for the
they are assigned in the provinces and they enjoyment of a place of abode is
rent rooms, is considered a dwelling. A considered a dwelling.
room in a hotel or motel will be considered
dwelling if it is used with a certain degree of Illustrations:
permanence, where the offended party
seeks privacy, rest, peace of mind and A and B are living in one house. A occupies
comfort. the ground floor while B the upper floor. The
stairs here would form part only of B's
If a young man brought a woman in a motel dwelling, the same being necessary and an
for a short time and there he was killed, integral part of his house or dwelling.
dwelling is not aggravating. Hence, when an attack is made while A is
on the stairs, the aggravating circumstance
A man was killed in the house of his of dwelling is not present. If the attack is
common law wife. Dwelling is aggravating made while B was on the stairs, then the
in this case because the house was aggravating circumstance of dwelling is
provided by the man. present.
Dwelling should not be understood in the Whenever one is in his dwelling, the law is
concept of a domicile. A person has more presuming that he is not intending to
than one dwelling. So, if a man has so commit a wrong so one who attacks him
many wives and he gave them a places of while in the tranquility of his home shows a
their own, each one is his own dwelling. If degree of perversity in him. Hence, this
he is killed there, dwelling will be aggravating circumstance.
aggravating, provided that he also stays
there once in a while. When he is only a Dwelling is not limited to the house proper.
visitor there, dwelling is not aggravating. All the appurtenances necessary for the
peace and comfort, rest and peace of mind
The crime of adultery was committed. in the abode of the offended party is
Dwelling was considered aggravating on considered a dwelling.
the part of the paramour. The paramour is
not a resident of the same dwelling. Illustrations:
However, if the paramour was also residing
on the same dwelling, dwelling is not A man was fixing something on the roof of
considered aggravating. his house when he was shot. It was held
that dwelling is aggravating. Roof still part
The term “dwelling” includes all the of the house.
dependencies necessary for a house or for
rest or for comfort or a place of privacy. If In the provinces where the comfort rooms
the place used is on the second floor, the are usually far from the house proper, if the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
offended party while answering the call of Balcony is part of the dwelling because it is
nature is killed, then dwelling is aggravating appurtenant to the house
because the comfort room is a necessary
dependency of the house proper. Dwelling is aggravating in robbery with
homicide because the crime can be
A person while in the room of his house, committed without necessarily
maintaining the room, was shot. Dwelling is transgressing the sanctity of the home
aggravating. (People v. De Los Reyes, decided
October 22, 1992).
If the offender entered the house and the
offended party jumped out of the house, Dwelling is aggravating where the place is,
even if the offender caught up with him even for a brief moment, a “home”, although
already out of the house, dwelling is still he is not the owner thereof as when victim
aggravating. The reason is because he was shot in the house of his parents.
could not have left his dwelling were it not
for the fact that the attacker entered the
house. Band
If the offended party was inside the house In band, there should at least be four
and the offender was outside and the latter persons. All of them should be armed. Even
shot the former inside the house while he if there are four, but only three or less are
was still outside. Dwelling is still armed, it is not a band. Whenever you talk
aggravating even if the offender did not of band, always have in mind four at least.
enter the house. Do not say three or more because it is four
or more. The way the law defines a band is
A garage is part of the dwelling when somewhat confusing because it refers
connected with an interior passage to the simply to more than 3, when actually it
house proper. If not connected, it is not should be 4 or more.
considered part of the dwelling.
Correlate this with Article 306 - Brigandage.
One-half of the house is used as a store The crime is the band itself. The mere
and the other half is used for dwelling but forming of a band even without the
there is only one entrance. If the dwelling commission of a crime is already a crime so
portion is attacked, dwelling is not that band is not aggravating in brigandage
aggravating because whenever a store is because the band itself is the way to
open for business, it is a public place and commit brigandage.
as such is not capable of being the subject
of trespass. If the dwelling portion is However, where brigandage is actually
attacked where even if the store is open, committed, band becomes aggravating.
there is another separate entrance to the
portion used for dwelling, the circumstance
is aggravating. However, in case the store Uninhabited place
is closed, dwelling is aggravating since
here, the store is not a public place as in It is determined not by the distance of the
the first case. nearest house to the scene of the crime but
whether or not in the place of the
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any of said crimes a third time or (2) The crimes are limited and specified
oftener. to: (a) serious physical injuries, (b)
less serious physical injuries, (c)
(4) Quasi-recidivism under Article 160 – robbery, (d) theft, (e) estafa or
Any person who shall commit a swindling and (f) falsification.
felony after having been convicted
by final judgment before beginning (3) There is a time limit of not more than
to serve such sentence or while 10 years between every convictions
serving such sentence shall be computed from the first conviction or
punished by the maximum period release from punishment thereof to
prescribed by law for the new felony. conviction computed from the
second conviction or release
Distinctions between recidivism and therefrom to the third conviction and
habitual delinquency so on . . .
(4) Habitual delinquency is a special
In recidivism – aggravating circumstance, hence it
cannot be offset by any mitigating
(1) Two convictions are enough. circumstance. Aside from the
penalty prescribed by law for the
(2) The crimes are not specified; it is crime committed, an additional
enough that they may be embraced penalty shall be imposed depending
under the same title of the Revised upon whether it is already the third
Penal Code. conviction, the fourth, the fifth and
so on . . .
(3) There is no time limit between the
first conviction and the subsequent (5) The circumstance must be alleged
conviction. Recidivism is in the information; otherwise the
imprescriptible. court cannot acquire jurisdiction to
impose additional penalty.
(4) It is a generic aggravating
circumstance which can be offset by
an ordinary mitigating circumstance. Recidivism
If not offset, it would only increase
the penalty prescribed by law for the In recidivism, the emphasis is on the fact
crime committed to its maximum that the offender was previously convicted
period. by final judgement of a felony and
subsequently found guilty of another felony
(5) The circumstance need not be embraced in the same title of the Revised
alleged in the information. Penal Code. The law considers this
aggravating when a person has been
In habitual delinquency – committing felonies embraced in the same
title because the implication is that he is
(1) At least three convictions are specializing on such kind of crime and the
required. law wants to prevent any specialization.
Hence, ordinarily, when a person commits a
crime under different titles, no aggravating
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the offender had committed and was On the other hand, recidivism is a generic
convicted of each of the crimes under each aggravating circumstance. It need not be
category so that no two crimes fall under alleged in the information. Thus, even if
the same title of the Revised Penal Code, recidivism is not alleged in the information,
you have a situation where the offender is a if proven during trial, the court can
habitual delinquent but not a recidivist appreciate the same. If the prosecution tried
because no two crimes fall under the same to prove recidivism and the defense
title of the Code. objected, the objection should be overruled.
The reason is recidivism is a generic
If the first conviction is for serious physical aggravating circumstance only. As such, it
injuries or less serious physical injuries and does not have to be alleged in the
the second conviction is for robbery, theft or information because even if not alleged, if
estafa and the third is for falsification, then proven during trial, the trial court can
the moment the habitual delinquent is on appreciate it.
his fourth conviction already, you cannot
avoid that he is a habitual delinquent and at Right now, the present rule is that it can be
the same time a recidivist because at least, appreciated even if not alleged in the
the fourth time will have to fall under any of information. This is the correct view
the three categories. because recidivism is a generic aggravating
circumstance. The reason why habitual
When the offender is a recidivist and at the delinquency cannot be appreciated unless
same time a habitual delinquent, the alleged in the information is because
penalty for the crime for which he will be recidivism has nothing to do with the crime
convicted will be increased to the maximum committed. Habitual delinquency refers to
period unless offset by a mitigating prior conviction and therefore this must be
circumstance. After determining the correct brought in the information before the court
penalty for the last crime committed, an can acquire jurisdiction over this matter.
added penalty will be imposed in
accordance with Article 62. Generally, the procedure you know that
when the prosecutor alleges habitual
Habitual delinquency, being a special or delinquency, it must specify the crimes
specific aggravating circumstance must be committed, the dates when they were
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
committed, the court which tried the case, than what he had served, reiteracion is not
the date when the accused was convicted aggravating because the law considers that
or discharged. If these are not alleged, the somehow, this fellow was corrected
information is defective. because instead of committing a serious
crime, he committed a lesser one. If he
However, in a relatively recent ruling of the committed another lesser one, then he
Supreme Court, it was held that even becomes a repeater.
though the details of habitual delinquency
was not set forth in the information, as long So, in reiteracion, the penalty attached to
as there is an allegation there that the the crime subsequently committed should
accused is a habitual delinquent, that is be higher or at least equal to the penalty
enough to confer jurisdiction upon the court that he has already served. If that is the
to consider habitual delinquency. In the situation, that means that the offender was
absence of the details set forth in the never reformed by the fact that he already
information, the accused has the right to served the penalty imposed on him on the
avail of the so-called bill of particulars. Even first conviction. However, if he commits a
in a criminal case, the accused may file a felony carrying a lighter penalty;
motion for bill of particulars. If the accused subsequently, the law considers that
fails to file such, he is deemed to have somehow he has been reformed but if he,
waived the required particulars and so the again commits another felony which carries
court can admit evidence of the habitual a lighter penalty, then he becomes a
delinquency, even though over and above repeater because that means he has not
the objection of the defense. yet reformed.
This is found in Article 160. The offender The emphasis is on the nature of the crime
must already be convicted by final committed while serving sentence or before
judgement and therefore to have served the serving sentence. It should not be a
penalty already, but even at this stage, he violation of a special law.
committed a felony before beginning to
serve sentence or while serving sentence. Quasi-recidivism is a special aggravating
circumstance. This cannot be offset by any
Illustration: mitigating circumstance and the imposition
of the penalty in the maximum period
Offender had already been convicted by cannot be lowered by any ordinary
final judgement. Sentence was promulgated mitigating circumstance. When there is a
and he was under custody in Muntinlupa. privileged mitigating circumstance, the
While he was in Muntinlupa, he escaped penalty prescribed by law for the crime
from his guard and in the course of his committed shall be lowered by 1 or 2
escape, he killed someone. The killing was degrees, as the case may be, but then it
committed before serving sentence but shall be imposed in the maximum period if
convicted by final judgement. He becomes the offender is a quasi-recidivist.
a quasi-recidivist because the crime
committed was a felony.
the receiver of the price, reward or promise arson since he intended to burn the house
but also the criminal liability of the one only.
giving the offer.
No such crime as arson with homicide. Law
enforcers only use this to indicate that a
By means of inundation or fire killing occurred while arson was being
committed. At the most, you could
Fire is not aggravating in the crime of arson. designate it as “death as a consequence of
arson.”
Whenever a killing is done with the use of
fire, as when to kill someone, you burn
down his house while the latter is inside, Evident premeditation
this is murder.
For evident premeditation to be
There is no such crime as murder with aggravating, the following conditions must
arson or arson with homicide. The crime concur:
committed is only murder.
(1) The time when the accused
If the victim is already dead and the house determined to commit the crime;
is burned, the crime is arson. It is either
arson or murder. (2) An act manifestly indicating that the
accused has clung to his
If the intent is to destroy property, the crime determination;
is arson even if someone dies as a
consequence. If the intent is to kill, there is (3) Sufficient lapse of time between
murder even if the house is burned in the such determination and execution,
process. to allow him to reflect upon the
consequences of his act.
Illustration:
necessary to show and to bring about It is only treachery because the evident
evident premeditation aside from showing premeditation is the very conscious act of
that as some prior time, the offender has the offender to ensure the execution.
manifested the intention to kill the victim,
and subsequently killed the victim. But there may be evident premeditation and
there is treachery also when the attack was
Illustrations: so sudden.
A and B fought. A told B that someday he A and B are enemies. They fought on
will kill B. On Friday, A killed B. A and B Monday and parted ways. A decided to
fought on Monday but since A already seek revenge. He bought a firearm and
suffered so many blows, he told B, "This practiced shooting and then sought B.
week shall not pass, I will kill you." On When A saw B in the restaurant with so
Friday, A killed B. Is there evident many people, A did not dare fire at B for
premeditation in both cases? None in both fear that he might hit a stranger but instead,
cases. What condition is missing to bring A saw a knife and used it to stab B with all
about evident premeditation? Evidence to suddenness. Evident premeditation was
show that between Monday and Friday, the not absorbed in treachery because
offender clung to his determination to kill treachery refers to the manner of
the victim, acts indicative of his having committing the crime. Evident
clung to his determination to kill B. premeditation is always absorbed in
treachery.
A and B had a quarrel. A boxed B. A told B,
"I will kill you this week." A bought firearms. This is one aggravating circumstance where
On Friday, he waited for B but killed C the offender who premeditated, the law
instead. Is there evident premeditation? says evident. It is not enough that there is
There is aberratio ictus. So, qualify. Insofar some premeditation. Premeditation must be
as B is concerned, the crime is attempted clear. It is required that there be evidence
murder because there is evident showing meditation between the time when
premeditation. However, that murder cannot the offender determined to commit the
be considered for C. Insofar as C is crime and the time when the offender
concerned, the crime is homicide because executed the act. It must appear that the
there was no evident premeditation. offender clung to his determination to
commit the crime. The fact that the offender
Evident premeditation shall not be premeditated is not prima facie indicative of
considered when the crime refers to a evident premeditation as the meeting or
different person other than the person encounter between the offender and the
premeditated against. offended party was only by chance or
accident.
While it is true that evident premeditation
may be absorbed in treachery because the In order for evident premeditation to be
means, method and form of attack may be considered, the very person/offended party
premeditated and would be resorted to by premeditated against must be the one who
the offender. Do not consider both is the victim of the crime. It is not necessary
aggravating circumstances of treachery and that the victim is identified. It is enough that
evident premeditation against the offender. the victim is determined so he or she
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this was the very means employed, the cover of darkness, B was not able to put up
circumstance may be treachery and not a defense and A was able to flee while B
abuse of superior strength or means to died, the crime is murder because there is
weaken the defense. already treachery. In the first situation, the
crime was homicide only, the nighttime is
What is the essence of treachery? generic aggravating circumstance.
wound. Example: A had a gunshot wound the victim is dead or alive. Cruelty pertains
at the back of his head. The SC ruled this to physical suffering of the victim so the
is only homicide because treachery must be victim has to be alive. In plain language,
proven. It must be shown that the victim ignominy is adding insult to injury. A clear
was totally defenseless. example is a married woman being raped
before the eyes of her husband.
Suddenness of the attack does not by itself
constitute treachery in the absence of In a case where the crime committed is
evidence that the manner of the attack was rape and the accused abused the victims
consciously adopted by the offender to from behind, the Supreme Court considered
render the offended party defenseless the crime as aggravated by ignominy.
(People v. Ilagan, 191 SCRA 643). Hence, raping a woman from behind is
ignominous because this is not the usual
But where children of tender years were intercourse, it is something which offends
killed, being one year old and 12 years old, the moral of the offended woman. This is
the killing is murder even if the manner of how animals do it.
attack was not shown (People v. Gahon,
decided on April 30, 1991). In a case of homicide, while the victim after
having been killed by the offender, the
In People v. Lapan, decided on July 6, offender shoved the body inside a canal,
1992, the accused was prosecuted for ignominy is held aggravating.
robbery with homicide. Robbery was not
proven beyond reasonable doubt. Accused After having been killed, the body was
held liable only for the killings. Although thrown into pile of garbage, ignominy is
one of the victims was barely six years old, aggravating. The Supreme Court held that it
the accused was convicted only for added shame to the natural effects of the
homicide, aggravated by dwelling and in crime.
disregard of age.
Cruelty and ignominy are circumstances
Treachery not appreciated where quarrel brought about which are not necessary in
and heated discussion preceded a killing, the commission of the crime.
because the victim would be put on guard
(People v. Gupo). But although a quarrel Illustration:
preceded the killing where the victim was
atop a coconut tree, treachery was A and B are enemies. A upon seeing B
considered as the victim was not in a pulled out a knife and stabbed B 60 times.
position to defend himself (People v. Will that fact be considered as an
Toribio). aggravating circumstance of cruelty? No,
there is cruelty only when there are
evidence that the offender inflicted the stab
Distinction between ignominy and cruelty wounds while enjoying or delighted to see
the victim in pain. For cruelty to exist as an
Ignominy shocks the moral conscience of aggravating circumstance, there must be
man while cruelty is physical. Ignominy evidence showing that the accused inflicted
refers to the moral effect of a crime and it the alleged cruel wounds slowly and
pertains to the moral order, whether or not gradually and that he is delighted seeing
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(1) Relationship;
Relationship
(2) Intoxication;
Relationship is not simply mitigating or
(3) Degree of instruction; and aggravating. There are specific
circumstances where relationship is
(4) Education. exempting. Among such circumstances
are:
Use only the term alternative circumstance
for as long as the particular circumstance is (1) In the case of an accessory who is
not involved in any case or problem. The related to the principal within the
moment it is given in a problem, do not use relationship prescribed in Article 20;
alternative circumstance, refer to it as
aggravating or mitigating depending on (2) Also in Article 247, a spouse does
whether the same is considered as such or not incur criminal liability for a crime
the other. If relationship is aggravating, of less serious physical injuries or
refer to it as aggravating. If mitigating, then serious physical injuries if this was
refer to it as such. inflicted after having surprised the
offended spouse or paramour or
Except for the circumstance of intoxication, mistress committing actual sexual
the other circumstances in Article 15 may intercourse.
not be taken into account at all when the
circumstance has no bearing on the crime (3) Those commonly given in Article
committed. So the court will not consider 332 when the crime of theft,
this as aggravating or mitigating simply malicious mischief and swindling or
because the circumstance has no relevance estafa. There is no criminal liability
to the crime that was committed. but only civil liability if the offender is
related to the offended party as
Do not think that because the article says spouse, ascendant, or descendant
that these circumstances are mitigating or or if the offender is a brother or
aggravating, that if the circumstance is sister or brother in law or sister in
present, the court will have to take it as law of the offended party and they
mitigating, if not mitigating, aggravating. are living together. Exempting
That is wrong. It is only the circumstance of circumstance is the relationship.
intoxication which if not mitigating, is This is an absolutory cause.
automatically aggravating. But the other
circumstances, even if they are present, but Sometimes, relationship is a qualifying and
if they do not influence the crime, the court not only a generic aggravating
will not consider it at all. Relationship may circumstance. In the crime of qualified
not be considered at all, especially if it is not seduction, the offended woman must be a
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
virgin and less than 18 yrs old. But if the In a case, there were two laborers who
offender is a brother of the offended woman were the best of friends. Since it was
or an ascendant of the offended woman, payday, they decided to have some good
regardless of whether the woman is of bad time and ordered beer. When they drank
reputation, even if the woman is 60 years two cases of beer they became more
old or more, crime is qualified seduction. In talkative until they engaged in an argument.
such a case, relationship is qualifying. One pulled out a knife and stabbed the
other. When arraigned he invoked
intoxication as a mitigating circumstance.
Intoxication Intoxication does not simply mean that the
offender has partaken of so much alcoholic
This circumstance is ipso facto mitigating, beverages. The intoxication in law requires
so that if the prosecution wants to deny the that because of the quality of the alcoholic
offender the benefit of this mitigation, they drink taken, the offender had practically lost
should prove that it is habitual and that it is self control. So although the offender may
intentional. The moment it is shown to be have partaken of two cases of beer, but
habitual or intentional to the commission of after stabbing the victim he hailed a tricycle
the crime, the same will immediately and even instructed the driver to the place
aggravate, regardless of the crime where he is sleeping and the tricycle could
committed. not reach his house and so he has to alight
and walk to his house, then there is no
Intoxication to be considered mitigating, diminished self control. The Supreme Court
requires that the offender has reached that did not give the mitigating circumstance
degree of intoxication where he has no because of the number of wounds inflicted
control of himself anymore. The idea is the upon the victim. There were 11 stab
offender, because of the intoxication is wounds and this, the Supreme Court said,
already acting under diminished self control. is incompatible with the idea that the
This is the rational why intoxication is offender is already suffering from
mitigating. So if this reason is not present, diminished self control. On the contrary,
intoxication will not be considered the indication is that the offender gained
mitigating. So the mere fact that the strength out of the drinks he had taken. It is
offender has taken one or more cases of not the quantity of drink that will determine
beer of itself does not warrant a conclusion whether the offender can legally invoke
that intoxication is mitigating. There must intoxication. The conduct of the offender,
be indication that because of the alcoholic the manner of committing the crime, his
intake of the offender, he is suffering from behavior after committing the crime must
diminished self control. There is diminished show the behavior of a man who has
voluntariness insofar as his intelligence or already lost control of himself. Otherwise
freedom of action is concerned. It is not the intoxication cannot legally be considered.
quantity of alcoholic drink. Rather it is the
effect of the alcohol upon the offender
which shall be the basis of the mitigating Degree of instruction and education
circumstance.
These are two distinct circumstances. One
Illustration: may not have any degree of instruction but
is nevertheless educated. Example: A has
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
been living with professionals for sometime. commission of the crime, the law looks into
He may just be a maid in the house with no their participation because in punishing
degree of instruction but he may still be offenders, the Revised Penal Code
educated. classifies them as:
If the offender did not go higher than Grade This classification is true only under the
3 and he was involved in a felony, he was Revised Penal Code and is not used under
invoking lack of degree of education. The special laws, because the penalties under
Supreme Court held that although he did the latter are never graduated. Do not use
not receive schooling, yet it cannot be said the term principal when the crime
that he lacks education because he came committed is a violation of special law.
from a family where brothers are all Only use the term “offender.” Also only
professionals. So he understands what is classify offenders when more than one took
right and wrong. part in the commission of the crime to
determine the proper penalty to be
The fact that the offender did not have imposed. So, if only one person committed
schooling and is illiterate does not mitigate a crime, do not use principal. Use the
his liability if the crime committed is one “offenders,” “culprits,” or the “accused.”
which he inherently understands as wrong
such as parricide. If a child or son or When a problem is encountered where
daughter would kill a parent, illiteracy will there are several participants in the crime,
not mitigate because the low degree of the first thing to find out is if there is a
instruction has no bearing on the crime. conspiracy. If there is, as a general rule,
the criminal liability of all will be the same,
In the same manner, the offender may be a because the act of one is the act of all.
lawyer who committed rape. The fact that
he has knowledge of the law will not However, if the participation of one is so
aggravate his liability, because his insignificant, such that even without his
knowledge has nothing to do with the cooperation, the crime would be committed
commission of the crime. But if he just as well, then notwithstanding the
committed falsification, that will aggravate existence of a conspiracy, such offender will
his criminal liability, where he used his be regarded only as an accomplice. The
special knowledge as a lawyer. reason for this ruling is that the law favors a
milder form of criminal liability if the act of
the participant does not demonstrate a clear
PERSONS WHO ARE CRIMINALLY perversity.
LIABLE
As to the liability of the participants in a
Under the Revised Penal Code, when more felony, the Code takes into consideration
than one person participated in the
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whether the felony committed is grave, less The accused are father and son. The father
grave, or light. told his son that the only way to convince
the victim to marry him is to resort to rape.
When the felony is grave, or less grave, all So when they saw the opportunity the
participants are criminally liable. young man grabbed the woman, threw her
on the ground and placed himself on top of
But where the felony is only light only the her while the father held both legs of the
principal and the accomplice are liable. The woman and spread them. The Supreme
accessory is not. Court ruled that the father is liable only as
an accomplice.
But even the principal and the accomplice
will not be liable if the felony committed is The point is not just on participation but on
only light and the same is not consummated the importance of participation in
unless such felony is against persons or committing the crime.
property. If they are not and the same is
not consummated, even the principal and In the first situation, the facts indicate that if
the accomplice are not liable. the fellow who held the legs of the victim
and spread them did not do so, the offender
Therefore it is only when the light felony is on top could hardly penetrate because the
against person or property that criminal woman was strong enough to move or
liability attaches to the principal or resist. In the second situation, the son was
accomplice, even though the felony is only much bigger than the woman so
attempted or frustrated, but accessories are considering the strength of the son and the
not liable for liable for light felonies. victim, penetration is possible even without
the assistance of the father. The son was a
robust farm boy and the victim
Principal by indispensable cooperation undernourished. The act of the father in
distinguished from an accomplice holding the legs of the victim merely
facilitated the penetration but even without it
It is not just a matter of cooperation, it is the son would have penetrated.
more than if the crime could hardly be
committed. It is not that the crime would The basis is the importance of the
not be committed because if that is what cooperation to the consummation of the
you would imply it becomes an ingredient of crime. If the crime could hardly be
the crime and that is not what the law committed without such cooperation, then
contemplates. such cooperation would bring about a
principal. But if the cooperation merely
In the case of rape, where three men were facilitated or hastened the consummation of
accused, one was on top of the woman, the crime, this would make the cooperator
one held the hands, one held the legs, the merely an accomplice.
Supreme Court ruled that all participants
are principals. Those who held the legs In a case where the offender was running
and arms are principals by indispensable after the victim with a knife. Another fellow
cooperation. came and blocked the way of the victim
and because of this, the one chasing the
victim caught up and stabbed the latter at
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the back. It was held that the fellow who “I will not marry you if you do not kill B”(let
blocked the victim is a principal by us say he really loves the inducer).
indispensable cooperation because if he did
not block the way of the victim, the offender They practically become co-conspirators.
could not have caught up with the latter. Therefore you do not look into the degree of
inducement anymore.
In another case, A was mauling B. C, a
friend of B tried to approach but D stopped In People v. Balderrama, Ernesto shouted
C so that A was able to continuously maul to his younger brother Oscar, “Birahin mo
B. The liability of the fellow who stopped na, birahin mo na.” Oscar stabbed the
the friend from approaching is as an victim. It was held that there was no
accomplice. Understandably he did not conspiracy. Joint or simultaneous action
cooperate in the mauling, he only stopped per se is not indicia of conspiracy without
to other fellow from stopping the mauling. showing of common design. Oscar has no
rancor with the victim for him to kill the
In case of doubt, favor the lesser penalty or latter. Considering that Ernesto had great
liability. Apply the doctrine of pro reo. moral ascendancy and influence over Oscar
being much older, 35 years old, than the
latter, who was 18 yrs old, and it was
Principal by inducement Ernesto who provided his allowance,
clothing as well as food and shelter,
Concept of the inducement – one strong Ernesto is principal by inducement.
enough that the person induced could
hardly resist. This is tantamount to an In People v. Agapinay, 186 SCRA 812, the
irresistible force compelling the person one who uttered “Kill him, we will bury him,”
induced to carry out the execution of the while the felonious aggression was taking
crime. Ill advised language is not enough place cannot be held liable as principal by
unless he who made such remark or advice inducement. Utterance was said in the
is a co-conspirator in the crime committed. excitement of the hour, not a command to
While in the course of a quarrel, a person be obeyed.
shouted to A, “Kill him! Kill him.” A killed
the other fellow. Is the person who shouted In People v. Madali, 188 SCRA 69, the son
criminally liable. Is that inducement? No. was mauled. The family was not in good
It must be strong as irresistible force. graces of the neighborhood. Father
challenged everybody and when neighbors
There was a quarrel between two families. approached, he went home to get a rifle.
One of the sons of family A came out with a The shouts of his wife “Here comes
shotgun. His mother then shouted, another, shoot him” cannot make the wife
“Shoot!”. He shot and killed someone. Is the principal by inducement. It is not the
the mother liable? No. determining cause of the crime in the
absence of proof that the words had great
Examples of inducement: dominance and influence over the husband.
Neither is the wife’s act of beaming the
“I will give you a large amount of money.” victim with a flashlight indispensable to the
commission of the killing. She assisted her
husband in taking good aim, but such
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
When an offender has already involved Presidential Decree No. 1612 has,
himself as a principal or accomplice, he therefore, modified Article 19 of the Revised
cannot be an accessory any further even Penal Code.
though he performs acts pertaining to an
accessory.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
someone who destroys the corpus delicti to Crime committed is kidnapping for ransom.
prevent discovery, he becomes an Principal was being chased by soldiers. His
accessory. aunt hid him in the ceiling of her house and
aunt denied to soldiers that her nephew had
ever gone there. When the soldiers left, the
Harboring or concealing an offender aunt even gave money to her nephew to go
to the province. Is aunt criminally liable?
In the third form or manner of becoming an No. Article 20 does not include an auntie.
accessory, take note that the law However, this is not the reason. The
distinguishes between a public officer reason is because one who is not a public
harboring, concealing or assisting the officer and who assists an offender to
principal to escape and a private citizen or escape or otherwise harbors, or conceals
civilian harboring concealing or assisting such offender, the crime committed by the
the principal to escape. principal must be either treason, parricide
murder or attempt on the life of the Chief
In the case of a public officer, the crime executive or the principal is known to be
committed by the principal is immaterial. habitually guilty of some other crime.
Such officer becomes an accessory by the
mere fact that he helped the principal to The crime committed by the principal is
escape by harboring or concealing, making determinative of the liability of the
use of his public function and thus abusing accessory who harbors, conceals knowing
the same. that the crime is committed. If the person is
a public officer, the nature of the crime is
On the other hand, in case of a civilian, the immaterial. What is material is that he used
mere fact that he harbored concealed or his public function in assisting escape.
assisted the principal to escape does not
ipso facto make him an accessory. The law However, although under paragraph 3 of
requires that the principal must have Article 19 when it comes to a civilian, the
committed the crime of treason, parricide, law specifies the crimes that should be
murder or attempt on the life of the Chief committed, yet there is a special law which
Executive. If this is not the crime, the punishes the same act and it does not
civilian does not become an accessory specify a particular crime. Presidential
unless the principal is known to be Decree No. 1829, which penalizes
habitually guilty of some other crime. Even obstruction of apprehension and
if the crime committed by the principal is prosecution of criminal offenders, effective
treason, or murder or parricide or attempt January 16, 1981, punishes acts commonly
on the life of the Chief Executive, the referred to as “obstructions of justice”. This
accessory cannot be held criminally liable Decree penalizes under Section 1(c)
without the principal being found guilty of thereof, the act, inter alia, of
any such crime. Otherwise the effect would “(c) Harboring or concealing, or facilitating
be that the accessory merely harbored or the escape of any person he knows or has
assisted in the escape of an innocent man, reasonable ground to believe or suspect,
if the principal is acquitted of the charges. has committed any offense under existing
penal laws in order to prevent his arrest,
Illustration: prosecution and conviction.”
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
19. That is as far as the Revised Penal 80 for the purposes specified
Code is concerned. But not Presidential therein.
Decree No. 1829. This special law does
not require that there be prior conviction. It (3) Suspension from the employment or
is a malum prohibitum, no need for guilt, or public office during the trial or in
knowledge of the crime. order to institute proceedings.
In Taer v. CA, accused received from his
co-accused two stolen male carabaos. (4) Fines and other corrective measures
Conspiracy was not proven. Taer was held which, in the exercise of their
liable as an accessory in the crime of cattle administrative disciplinary powers,
rustling under Presidential Decree No. 533. superior officials may impose upon
[Taer should have been liable for violation their subordinates.
of the Anti-fencing law since cattle rustling
is a form of theft or robbery of large cattle, (5) Deprivation of rights and reparations
except that he was not charged with which the civil laws may establish in
fencing.] penal form.
In Enrile v. Amin, a person charged with Why does the Revised Penal Code specify
rebellion should not be separately charged that such detention shall not be a penalty
under Presidential Decree No. 1829. The but merely a preventive measure?
theory of absorption must not confine itself
to common crimes but also to offenses This article gives justification for detaining
punished under special laws which are the accused. Otherwise, the detention
perpetrated in furtherance of the political would violate the constitutional provision
offense. that no person shall be deprived of life,
liberty and property without due process of
law. And also, the constitutional right of an
PENALTIES accused to be presumed innocent until the
contrary is proved.
Correlating Article 24 with Article 29 But if the offender did not sign an
undertaking, then he will only be subjected
Although under Article 24, the detention of a to the rules and regulations governing
person accused of a crime while the case detention prisoners. As such, he will only
against him is being tried does not amount be given 80% or 4/5 of the period of his
to a penalty, yet the law considers this as preventive detention.
part of the imprisonment and generally
deductible from the sentence. From this provision, one can see that the
detention of the offender may subject him
When will this credit apply? If the penalty only to the treatment applicable to a
imposed consists of a deprivation of liberty. detention prisoner or to the treatment
Not all who have undergone preventive applicable to convicts, but since he is not
imprisonment shall be given a credit convicted yet, while he is under preventive
imprisonment, he cannot be subjected to
Under Article 24, preventive imprisonment the treatment applicable to convicts unless
of an accused who is not yet convicted, but he signs and agrees to be subjected to
by express provision of Article24 is not a such disciplinary measures applicable to
penalty. Yet Article 29, if ultimately the convicts.
accused is convicted and the penalty
imposed involves deprivation of liberty, Detention prisoner has more freedom within
provides that the period during which he the detention institution rather than those
had undergone preventive detention will be already convicted. The convicted prisoner
deducted from the sentence, unless he is suffers more restraints and hardship than
one of those disqualified under the law. detention prisoners.
So, if the accused has actually undergone Under what circumstances may a detention
preventive imprisonment, but if he has been prisoner be released, even though the
convicted for two or more crimes whether proceedings against him are not yet
he is a recidivist or not, or when he has terminated?
been previously summoned but failed to
surrender and so the court has to issue a Article 29 of the Revised Penal Code has
warrant for his arrest, whatever credit he is been amended by a Batas Pambansa
entitled to shall be forfeited. effective that tool effect on September 20,
1980. This amendment is found in the
If the offender is not disqualified from the Rules of Court, under the rules on bail in
credit or deduction provided for in Article 29 Rule 114 of the Rules on Criminal
of the Revised Penal Code, then the next Procedure, the same treatment exactly is
thing to determine is whether he signed an applied there.
undertaking to abide by the same rules and
regulations governing convicts. If he signed In the amendment, the law does not speak
an undertaking to abide by the same rules of credit. Whether the person is entitled to
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Understand the amendment made to Article Under Article 70, which is the Three-Fold
29. This amendment has been Rule, the maximum period shall in no case
incorporated under Rule 114 precisely to do exceed 40 years. If a convict who is to
away with arbitrary detention. serve several sentences could only be
made to serve 40 years, with more reason,
Proper petition for habeas corpus must be one who is sentenced to a singly penalty of
filed to challenge the legality of the reclusion perpetua should not be held for
detention of the prisoner. more than 40 years.
prohibited form entering or coming near that destierro. Thus, it shall be the one
place designated in the sentence, not less imposed.
than 25 Kms.. However, the court cannot
extend beyond 250 Kms. If the convict
should enter the prohibited places, he Civil Interdiction
commits the crime of evasion of service of
sentence under Article 157. But if the Civil interdiction is an accessory penalty.
convict himself would go further from which Civil interdiction shall deprive the offender
he is vanished by the court, there is no during the time of his sentence:
evasion of sentence because the 240-Km.
limit is upon the authority of the court in (1) The rights of parental authority, or
vanishing the convict. guardianship either as to the person
or property of any ward;
Under the Revised Penal Code, destierro is
the penalty imposed in the following (2) Marital authority;
situations:
(3) The right to manage his property;
(1) When a legally married person who and
had surprised his or her spouse in
the act of sexual intercourse with (4) The right to dispose of such property
another and while in that act or by any act or any conveyance inter
immediately thereafter should kill or vivos.
inflict serious physical injuries upon
the other spouse, and/or the Can a convict execute a last will and
paramour or mistress. This is found testament? Yes.
in Article 247.
The duration is six years and one (1) Article 40. Death - perpetual
day to 12 years. absolute disqualification, and civil
interdiction during 30 years following
3. What do we refer to if it is date of sentence;
perpetual or temporary disqualification?
(2) Article 41. Reclusion perpetua and
We refer to the duration of the reclusion temporal - civil interdiction
disqualification. for life or during the period of the
sentence as the case may be, and
4. What do we refer to if it is perpetual absolute disqualification;
special or absolute disqualification?
(3) Article 42. Prision mayor - temporary
We refer to the nature of the absolute disqualification perpetual
disqualification. special disqualification from the right
of suffrage;
The classification of principal and accessory (4) Article 43. Prision correccional -
is found in Article 25. suspension from public office, from
the right to follow a profession or
In classifying the penalties as principal and calling, and perpetual special
accessory, what is meant by this is that disqualification from the rights of
those penalties classified as accessory suffrage if the duration of said
penalties need not be stated in the imprisonment shall exceed 18
sentence. The accessory penalties follow months.
the principal penalty imposed for the crime
as a matter of course. So in the imposition (5) Article 44. Arresto - suspension of
of the sentence, the court will specify only the right to hold office and the right
the principal penalty but that is not the only of suffrage during the term of the
penalty which the offender will suffer. sentence.
Penalties which the law considers as
accessory to the prescribed penalty are There are accessory penalties which are
automatically imposed even though they true to other principal penalties. An
are not stated in the judgment. As to the example is the penalty of civil interdiction.
particular penalties that follow a particular This is an accessory penalty and, as
provided in Article 34, a convict sentenced
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
to civil interdiction suffers certain You cannot find this penalty in Article 25
disqualification during the term of the because Article 25 only provides for bond to
sentence. One of the disqualifications is keep the peace. Remember that no felony
that of making a conveyance of his property shall be punished by any penalty not
inter vivos. prescribed by law prior to its commission
pursuant to Article 21.
Illustration:
instead, limits such suspension to penalty. It will then be the prison authority
last while the woman was pregnant who will compute this.
and within one year after delivery.
So even if subsidiary penalty is proper in a
case, if the judge failed to state in the
Subsidiary penalty sentence that the convict shall be required
to suffer subsidiary penalty in case of
Is subsidiary penalty an accessory penalty? insolvency to pay the fine, that convict
No. cannot be required to suffer the accessory
penalty. This particular legal point is a bar
If the convict does not want to pay fine and problem. Therefore, the judgment of the
has so many friends and wants to prolong court must state this. If the judgment is
his stay in jail, can he stay there and not silent, he cannot suffer any subsidiary
pay fine? No. penalty.
After undergoing subsidiary penalty and the The subsidiary penalty is not an accessory
convict is already released from jail and his penalty that follows the principal penalty as
financial circumstances improve, can he be a matter of course. It is not within the
made to pay? Yes, for the full amount with control of the convict to pay the fine or not
deduction. and once the sentence becomes final and
executory and a writ of execution is issued
Article 39 deals with subsidiary penalty. to collect the fine, if convict has property to
There are two situations there: levy upon, the same shall answer for the
fine, whether he likes it or not. It must be
(1) When there is a principal penalty of that the convict is insolvent to pay the fine.
imprisonment or any other principal That means that the writ of execution
penalty and it carries with it a fine; issued against the property of the convict, if
and any, is returned unsatisfied.
(2) When penalty is only a fine. In People v. Subido, it was held that the
convict cannot choose not to serve, or not
Therefore, there shall be no subsidiary to pay the fine and instead serve the
penalty for the non-payment of damages to subsidiary penalty. A subsidiary penalty will
the offended party. only be served if the sheriff should return
the execution for the fine on the property of
This subsidiary penalty is one of important the convict and he does not have the
matter under the title of penalty. A properties to satisfy the writ.
subsidiary penalty is not an accessory
penalty. Since it is not an accessory
penalty, it must be expressly stated in the Questions & Answers
sentence, but the sentence does not specify
the period of subsidiary penalty because it
will only be known if the convict cannot pay The penalty imposed by the judge is
the fine. The sentence will merely provide fine only. The sheriff then tried to levy the
that in case of non-payment of the fine, the property of the defendant after it has
convict shall be required to save subsidiary become final and executory, but it was
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
duration does not exceed six years. Since estafa, the penalty imposed was arresto
it is a penalty with a fixed duration under mayor and a fine of P200.00. Arresto
Article 39, when there is a subsidiary mayor + P200.00 x 50. Arresto Mayor is six
penalty, such shall be 1/3 of the period of months x 50 = 25 years. P200.00 x 50 =
suspension which in no case beyond one P10,000.00. Thus, I would impose a
year. But the subsidiary penalty will be penalty of arresto mayor and a fine of
served not by imprisonment but by P200.00 multiplied by 50 counts and state
continued suspension. further that “as a judge, I am not in the
position to apply the Three-Fold Rule
If the penalty is public censure and fine because the Three-Fold Rule is to be given
even if the public censure is a light penalty, effect when the convict is already serving
the convict cannot be required to pay the sentence in the penitentiiary. It is the prison
fine for subsidiary penalty for the non- authority who will apply the Three-Fold
payment of the fine because public censure Rule. As far as the court is concerned, that
is a penalty that has no fixed duration. will be the penalty to be imposed.”
Do not consider the totality of the For the purposes of subsidiary penalty,
imprisonment the convict is sentenced to apply the Three-Fold Rule if the penalty is
but consider the totality or the duration of arresto mayor and a fine of P200.00
the imprisonment that the convict will be multiplied by 3. This means one year and
required to serve under the Three-Fold six months only. So, applying the Three-
Rule. If the totality of the imprisonment Fold Rule, the penalty does not go beyond
under this rule does not exceed six years, six years. Hence, for the non- payment of
then, even if the totality of all the sentences the fine of P10,000.00, the convict shall be
without applying the Three-Fold Rule will go required to undergo subsidiary penalty.
beyond six years, the convict shall be This is because the imprisonment that will
required to undergo subsidiary penalty if he be served will not go beyond six years. It
could not pay the fine. will only be one year and six months, since
in the service of the sentence, the Three-
Illustration: Fold Rule will apply.
charged upon arraignment. It was also When there are mitigating circumstance
established that he was intoxicated, and no and aggravating circumstance and the
aggravating circumstances were present. penalty is only fine, when it is only ordinary
What penalty would you impose? mitigating circumstance and aggravating
circumstance, apply Article 66. Because
Reclusion perpetua, because it is an you determine the imposable fine on the
indivisible penalty. basis of the financial resources or means of
the offender. But if the penalty would be
When there are two or more mitigating lowered by degree, there is a privileged
circumstances and there is no aggravating mitigating circumstance or the felony
circumstance, penalty to be imposed shall committed is attempted or frustrated,
be one degree lower to be imposed in the provided it is not a light felony against
proper period. Do not apply this when there persons or property, because if it is a light
is one aggravating circumstance. felony and punishable by fine, it is not a
crime at all unless it is consummated. So, if
Illustration: it is attempted or frustrated, do not go one
degree lower because it is not punishable
There are about four mitigating unless it is a light felony against person or
circumstances and one aggravating property where the imposable penalty will
circumstance. Court offsets the be lowered by one degree or two degrees.
aggravating circumstance against the
mitigating circumstance and there still Penalty prescribed to a crime is lowered by
remains three mitigating circumstances. degrees in the following cases:
Because of that, the judge lowered the
penalty by one degree. Is the judge (1) When the crime is only attempted or
correct? frustrated
Penalty is two degrees lower in the In Article 27, with respect to the range of
case of an accessory. each penalty, the range of arresto menor
follows arresto mayor, since arresto menor
This is so because the penalty is one to 30 days or one month, while
prescribed by law for a given crime arresto mayor is one month and one day to
refers to the consummated stage. six months. On the other hand, the duration
of destierro is the same as prision
(3) When there is a privilege mitigating correccional which is six months and one
circumstance in favor of the day to six years. But be this as it is, under
offender, it will lower the penalty by Article 71, in the scale of penalties
one or two degrees than that graduated according to degrees, arresto
prescribed by law depending on mayor is higher than destierro.
what the particular provision of the
Revised Penal Code states. In homicide under Article 249, the penalty is
reclusion temporal. One degree lower, if
(4) When the penalty prescribed for the homicide is frustrated, or there is an
crime committed is a divisible accomplice participating in homicide, is
penalty and there are two or more prision mayor, and two degrees lower is
ordinary mitigating circumstances prision correccional.
and no aggravating circumstances
whatsoever, the penalty next lower This is true if the penalty prescribed by the
in degree shall be the one imposed. Revised Penal Code is a whole divisible
penalty -- one degree or 2 degrees lower
(5) Whenever the provision of the will also be punished as a whole. But
Revised Penal Code specifically generally, the penalties prescribed by the
lowers the penalty by one or two Revised Penal Code are only in periods,
degrees than what is ordinarily like prision correcional minimum, or prision
prescribed for the crime committed. correcional minimum to medium.
Penalty commonly imposed by the Revised Although the penalty is prescribed by the
Penal Code may be by way of Revised Penal Code as a period, such
imprisonment or by way of fine or, to a penalty should be understood as a degree
limited extent, by way of destierro or in itself and the following rules shall govern:
disqualification, whether absolute or
special. (1) When the penalty prescribed by the
Revised Code is made up of a
In the matter of lowering the penalty by period, like prision correccional
degree, the reference is Article 71. It is medium, the penalty one degree
necessary to know the chronology under lower is prision correccional
Article 71 by simply knowing the scale. minimum, and the penalty two
Take note that destierro comes after arresto degrees lower is arresto mayor
mayor so the penalty one degree lower than maximum. In other words, each
arresto mayor is not arresto menor, but degree will be made up of only one
destierro. Memorize the scale in Article 71. period because the penalty
prescribed is also made up only of
one period.
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) When the penalty prescribed by the Penal Code is indivisible. Article 64
Code is made up of two periods of a governs when the penalty prescribed by the
given penalty, every time such Revised Penal Code is divisible. When the
penalty is lowered by one degree penalty is indivisible, no matter how many
you have to go down also by two ordinary mitigating circumstances there are,
periods. the prescribed penalty is never lowered by
degree. It takes a privileged mitigating
Illustration: circumstance to lower such penalty by
degree. On the other hand, when the
If the penalty prescribed for the penalty prescribed by the Revised Penal
crime is prision correccional medium Code is divisible, such penalty shall be
to maximum, the penalty one degree lowered by one degree only but imposed in
lower will be arresto mayor the proper period, when there are two or
maximum to prision correccional more ordinary mitigating circumstance and
minimum, and the penalty another there is no aggravating circumstance
degree lower will be arresto mayor whatsoever.
minimum to medium. Every degree
will be composed of two periods.
Article 75 – Fines
(3) When the penalty prescribed by the
Revised Penal Code is made up of With respect to the penalty of fine, if the fine
three periods of different penalties, has to be lowered by degree either because
every time you go down one degree the felony committed is only attempted or
lower, you have to go down by three frustrated or because there is an
periods. accomplice or an accessory participation,
the fine is lowered by deducting 1/4 of the
Illustration: maximum amount of the fine from such
maximum without changing the minimum
The penalty prescribed by the amount prescribed by law.
Revised Penal Code is prision
mayor maximum to reclusion Illustration:
temporal medium, the penalty one
degree lower is prision correccional If the penalty prescribed is a fine ranging
maximum to prision mayor medium. from P200.00 to P500.00, but the felony is
Another degree lower will be arresto frustrated so that the penalty should be
mayor maximum to prision imposed one degree lower, 1/4 of P500.00
correccional medium. shall be deducted therefrom. This is done
by deducting P125.00 from P500.00,
These rules have nothing to do with leaving a difference of P375.00. The
mitigating or aggravating circumstances. penalty one degree lower is P375.00. To
These rules refer to the lowering of penalty go another degree lower, P125.00 shall
by one or two degrees. As to how again be deducted from P375.00 and that
mitigating or aggravating circumstances would leave a difference of P250.00.
may affect the penalty, the rules are found Hence, the penalty another degree lower is
in Articles 63 and 64. Article 63 governs a fine ranging from P200.00 to P250.00. If
when the penalty prescribed by the Revised at all, the fine has to be lowered further, it
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
cannot go lower than P200.00. So, the fine Instead, the most severe of the penalties
will be imposed at P200.00. This rule imposed on him shall be multiplied by three
applies when the fine has to be lowered by and the period will be the only term of the
degree. penalty to be served by him. However, in
no case should the penalty exceed 40
years.
Article 66
This rule is intended for the benefit of the
In so far as ordinary mitigating or convict and so, you will only apply this
aggravating circumstance would affect the provided the sum total of all the penalties
penalty which is in the form of a fine, Article imposed would be greater than the product
66 of the Revised Penal Code shall govern. of the most severe penalty multiplied by
Under this article, it is discretionary upon three but in no case will the penalties to be
the court to apply the fine taking into served by the convict be more than 40
consideration the financial means of the years.
offender to pay the same. In other words, it
is not only the mitigating and/or aggravating Although this rule is known as the Three-
circumstances that the court shall take into Fold rule, you cannot actually apply this if
consideration, but primarily, the financial the convict is to serve only three successive
capability of the offender to pay the fine. penalties. The Three-Fold Rule can only be
For the same crime, the penalty upon an applied if the convict is to serve four or
accused who is poor may be less than the more sentences successively. If the
penalty upon an accused committing the sentences would be served simultaneously,
same crime but who is wealthy the Three-Fold rule does not govern.
.
For instance, when there are two offenders The chronology of the penalties as provided
who are co-conspirators to a crime, and in Article 70 of the Revised Penal Code
their penalty consists of a fine only, and one shall be followed.
of them is wealthy while the other is a
pauper, the court may impose a higher It is in the service of the penalty, not in the
penalty upon the wealthy person and a imposition of the penalty, that the Three-
lower fine for the pauper. Fold rule is to be applied. The three-Fold
rule will apply whether the sentences are
Penalty for murder under the Revised Penal the product of one information in one court,
Code is reclusion temporal maximum to whether the sentences are promulgated in
death. So, the penalty would be reclusion one day or whether the sentences are
temporal maximum – reclusion perpetua – promulgated by different courts on different
death. This penalty made up of three days. What is material is that the convict
periods. shall serve more than three successive
sentences.
One prision mayor - 6 years and (2) Instances when it does not apply;
1 day to 12 years and
The common mistake is, if given a situation, It applies only when the penalty served is
whether the Three-Fold Rule could be imprisonment. If not by imprisonment, then
applied. If asked, if you were the judge, it does not apply.
what penalty would you impose, for
purposes of imposing the penalty, the court
is not at liberty to apply the Three-Fold
Rule, whatever the sum total of penalty for Purpose
each crime committed, even if it would
amount to 1,000 years or more. It is only The purpose of the Indeterminate Sentence
when the convict is serving sentence that law is to avoid prolonged imprisonment,
the prison authorities should determine how because it is proven to be more destructive
long he should stay in jail. than constructive to the offender. So, the
purpose of the Indeterminate Sentence Law
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
in shortening the possible detention of the anywhere within the range of penalty
convict in jail is to save valuable human prescribed by the special law, as long as it
resources. In other words, if the valuable will not be less than the minimum limit of
human resources were allowed prolonged the penalty under said law. No mitigating
confinement in jail, they would deteriorate. and aggravating circumstances are taken
Purpose is to preserve economic into account.
usefulness for these people for having
committed a crime -- to reform them rather The minimum and the maximum referred to
than to deteriorate them and, at the same in the Indeterminate Sentence Law are not
time, saving the government expenses of periods. So, do not say, maximum or
maintaining the convicts on a prolonged minimum period. For the purposes of the
confinement in jail. indeterminate Sentence Law, use the term
minimum to refer to the duration of the
If the crime is a violation of the Revised sentence which the convict shall serve as a
Penal Code, the court will impose a minimum, and when we say maximum, for
sentence that has a minimum and purposes of ISLAW, we refer to the
maximum. The maximum of the maximum limit of the duration that the
indeterminate sentence will be arrived at by convict may be held in jail. We are not
taking into account the attendant mitigating referring to any period of the penalty as
and/or aggravating circumstances enumerated in Article 71.
according to Article 64 of the Revised Penal
Code. In arriving at the minimum of the Courts are required to fix a minimum and a
indeterminate sentence, the court will take maximum of the sentence that they are to
into account the penalty prescribed for the impose upon an offender when found guilty
crime and go one degree lower. Within the of the crime charged. So, whenever the
range of one degree lower, the court will fix Indeterminate Sentence Law is applicable,
the minimum for the indeterminate there is always a minimum and maximum of
sentence, and within the range of the the sentence that the convict shall serve. If
penalty arrived at as the maximum in the the crime is punished by the Revised Penal
indeterminate sentence, the court will fix the Code, the law provides that the maximum
maximum of the sentence. If there is a shall be arrived at by considering the
privilege mitigating circumstance which has mitigating and aggravating circumstances in
been taken in consideration in fixing the the commission of the crime according to
maximum of the indeterminate sentence, the proper rules of the Revised Penal Code.
the minimum shall be based on the penalty To fix the maximum, consider the mitigating
as reduced by the privilege mitigating and aggravating circumstances according
circumstance within the range of the penalty to the rules found in Article 64. This means
next lower in degree. –
If the crime is a violation of a special law, in (1) Penalties prescribed by the law for
fixing the maximum of the indeterminate the crime committed shall be
sentence, the court will impose the penalty imposed in the medium period if no
within the range of the penalty prescribed mitigating or aggravating
by the special law, as long as it will not circumstance;
exceed the limit of the penalty. In fixing the
minimum, the court can fix a penalty
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Disqualification may be divided into three, Although the penalty prescribed for the
according to – felony committed is death or reclusion
perpetua, if after considering the attendant
(1) The time committed; circumstances, the imposable penalty is
reclusion temporal or less, the
(2) The penalty imposed; and Indeterminate Sentence Law applies
(People v. Cempron, 187 SCRA 278).
(3) The offender involved.
(4) Persons convicted of piracy; Without regard to the nature of the crime,
only those whose penalty does not exceed
(5) Persons who are habitual six years of imprisonment are those
delinquents; qualified for probation. If the penalty is six
years plus one day, he is no longer qualified
(6) Persons who shall have escaped for probation.
from confinement or evaded
sentence; If the offender was convicted of several
offenses which were tried jointly and one
(7) Those who have been granted decision was rendered where multiple
conditional pardon by the Chief sentences imposed several prison terms as
Executive and shall have violated penalty, the basis for determining whether
the term thereto; the penalty disqualifies the offender from
probation or not is the term of the individual
(8) Those whose maximum term of imprisonment and not the totality of all the
imprisonment does not exceed one prison terms imposed in the decision. So
year, but not to those already even if the prison term would sum up to
sentenced by final judgment at the more than six years, if none of the individual
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
penalties exceeds six years, the offender is become final and executory. The idea is
not disqualified by such penalty from that probation has to be invoked at the
applying for probation. earliest opportunity.
On the other hand, without regard to the An application for probation is exclusively
penalty, those who are convicted of within the jurisdiction of the trial court that
subversion or any crime against the public renders the judgment. For the offender to
order are not qualified for probation. So apply in such court, he should not appeal
know the crimes under Title III, Book 2 of such judgment.
the Revised Penal Code. Among these
crimes is Alarms and Scandals, the penalty Once he appeals, regardless of the purpose
of which is only arresto menor or a fine. of the appeal, he will be disqualified from
Under the amendment to the Probation applying for Probation, even though he may
Law, those convicted of a crime against thereafter withdraw his appeal.
public order regardless of the penalty are
not qualified for probation. If the offender would appeal the conviction
of the trial court and the appellate court
May a recidivist be given the benefit of reduced the penalty to say, less than six
Probation Law? years, that convict can still file an
application for probation, because the
As a general rule, no. earliest opportunity for him to avail of
probation came only after judgment by the
Exception: If the earlier conviction refers to appellate court.
a crime the penalty of which does not
exceed 30 days imprisonment or a fine of Whether a convict who is otherwise
not more than P200.00, such convict is not qualified for probation may be give the
disqualified of the benefit of probation. So benefit of probation or not, the courts are
even if he would be convicted subsequently always required to conduct a hearing. If the
of a crime embraced in the same title of the court denied the application for probation
Revised Penal Code as that of the earlier without the benefit of the hearing, where as
conviction, he is not disqualified from the applicant is not disqualified under the
probation provided that the penalty of the provision of the Probation Law, but only
current crime committed does not go based on the report of the probation officer,
beyond six years and the nature of the the denial is correctible by certiorari,
crime committed by him is not against because it is an act of the court in excess of
public order, national security or jurisdiction or without jurisdiction, the order
subversion. denying the application therefore is null and
void.
Although a person may be eligible for
probation, the moment he perfects an Probation is intended to promote the
appeal from the judgment of conviction, he correction and rehabilitation of an offender
cannot avail of probation anymore. So the by providing him with individualized
benefit of probation must be invoked at the treatment; to provide an opportunity for the
earliest instance after conviction. He reformation of a penitent offender which
should not wait up to the time when he might be less probable if he were to serve a
interposes an appeal or the sentence has prison sentence; to prevent the commission
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
of offenses; to decongest our jails; and to the convict starts serving sentence and
save the government much needed finance provided he has not perfected an appeal. If
for maintaining convicts in jail the convict perfected an appeal, he forfeits
his right to apply for probation. As far as
Probation is only a privilege. So even if the offenders who are under preventive
offender may not be disqualified of imprisonment, that because a crime
probation, yet the court believes that committed is not bailable or the crime
because of the crime committed it was not committed, although bailable, they cannot
advisable to give probation because it afford to put up a bail, upon promulgation of
would depreciate the effect of the crime, the the sentence, naturally he goes back to
court may refuse or deny an application for detention, that does not mean that they
probation. already start serving the sentence even
after promulgation of the sentence,
Generally, the courts do not grant an sentence will only become final and
application for probation for violation of the executory after the lapse of the 15-day
Dangerous Drugs Law, because of the period, unless the convict has waived
prevalence of the crime. So it is not along expressly his right to appeal or otherwise,
the purpose of probation to grant the he has partly started serving sentence and
convict the benefit thereof, just the in that case, the penalty will already be final
individual rehabilitation of the offender but and exeuctory, no right to probation can be
also the best interest of the society and the applied for.
community where the convict would be
staying, if he would be released on Probation shall be denied if the court finds:
probation. To allow him loose may bring
about a lack of respect of the members of (1) That the offender is in need of
the community to the enforcement of penal correctional treatment that can be
law. In such a case, the court even if the provided most effectively by his
crime is probationable may still deny the commitment to an institution;
benefit of probation.
(2) That there is undue risk that during
Consider not only the probationable crime, the period of probation the offender
but also the probationable penalty. If it will commit another crime; or
were the non-probationable crime, then
regardless of the penalty, the convict (3) Probation will depreciate the
cannot avail of probation. Generally, the seriousness of the crime.
penalty which is not probationable is any
penalty exceeding six years of The probation law imposes two kinds of
imprisonment. Offenses which are not conditions:
probationable are those against natural
security, those against public order and (1) Mandatory conditions; and
those with reference to subversion.
(2) Discretionary conditions.
Persons who have been granted of the
benefit of probation cannot avail thereof for
the second time. Probation is only available Mandatory conditions:
once and this may be availed only where
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(5) Probation.
EXTINCTION OF CRIMINAL LIABILITY
constituents, that his constituents have the convict had already served the
pardoned him. The Supreme Court ruled sentence such that there is no more service
that the re-election to public office is not of sentence to be executed then the pardon
one of the grounds by which criminal liability shall be understood as intended to erase
is extinguished. This is only true to the effects of the conviction.
administrative cases but not criminal cases.
So if the convict has already served the
sentence and in spite of that he was given a
Death of the offender pardon that pardon will cover the effects of
the crime and therefore, if he will be
Where the offender dies before final subsequently convicted for a felony
judgment, his death extinguishes both his embracing the same title as that crime, he
criminal and civil liabilities. So while a case cannot be considered a recidivist, because
is on appeal, the offender dies, the case on the pardon wipes out the effects of the
appeal will be dismissed. The offended crime.
party may file a separate civil action under
the Civil Code if any other basis for But if he was serving sentence when he
recovery of civil liability exists as provided was pardoned, that pardon will not wipe out
under Art 1157 Civil Code. (People v. the effects of the crime, unless the
Bayotas, decided on September 2, 1994) language of the pardon absolutely relieve
the offender of all the effects thereof.
Considering that recidivism does not
Amnesty and pardon prescribe, no matter how long ago was the
first conviction, he shall still be a recidivist.
The effects of amnesty as well as absolute
pardon are not the same. Amnesty erases Illustrations:
not only the conviction but also the crime
itself. So that if an offender was convicted When the crime carries with it moral
for rebellion and he qualified for amnesty, turpitude, the offender even if granted
and so he was given an amnesty, then pardon shall still remain disqualified from
years later he rebelled again and convicted, those falling in cases where moral turpitude
is he a recidivist? No. Because the is a bar.
amnesty granted to him erased not only the
conviction but also the effects of the Pedro was prosecuted and convicted of the
conviction itself. crime of robbery and was sentenced to six
years imprisonment or prision correccional.
Suppose, instead of amnesty, what was After serving sentence for three years, he
given was absolute pardon, then years was granted absolute pardon. Ten years
later, the offended was again captured and later, Pedro was again prosecuted and
charged for rebellion, he was convicted, is convicted of the crime of theft, a crime
he a recidivist? embraced in the same title, this time he
Yes. Pardon, although absolute does not shall be a recidivist. On the other hand, if
erase the effects of conviction. Pardon only he has served all six years of the first
excuses the convict from serving the sentence, and his name was included in the
sentence. There is an exception to this and list of all those granted absolute pardon,
that is when the pardon was granted when pardon shall relieve him of the effects of the
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crime, and therefore even if he commits registry, the falsification is deemed public
theft again, he shall not be considered a from the time the falsified document was
recidivist. registered or recorded in such public office
so even though, the offended party may not
In Monsanto v. Factoran, Jr., 170 SCRA really know of the falsification, the
191, it was held that absolute pardon does prescriptive period of the crime shall
not ipso facto entitle the convict to already run from the moment the falsified
reinstatement to the public office forfeited document was recorded in the public
by reason of his conviction. Although registry. So in the case where a deed of
pardon restores his eligibility for sale of a parcel of land which was falsified
appointment to that office, the pardoned was recorded in the corresponding Registry
convict must reapply for the new of Property, the owner of the land came to
appointment know of the falsified transaction only after
. 10 years, so he brought the criminal action
Pardon becomes valid only when there is a only then. The Supreme Court ruled that
final judgment. If given before this, it is the crime has already prescribed. From the
premature and hence void. There is no moment the falsified document is registered
such thing as a premature amnesty, in the Registry of Property, the prescriptive
because it does not require a final period already commenced to run.
judgment; it may be given before final
judgment or after it. When a crime prescribes, the State loses
the right to prosecute the offender, hence,
even though the offender may not have filed
Prescription of crime and prescription of the a motion to quash on this ground the trial
penalty court, but after conviction and during the
appeal he learned that at the time the case
Prescription of the crime begins, as a was filed, the crime has already prescribed,
general rule on the day the crime was such accused can raise the question of
committed, unless the crime was prescription even for the first time on
concealed, not public, in which case, the appeal, and the appellate court shall have
prescription thereof would only commence no jurisdiction to continue, if legally, the
from the time the offended party or the crime has indeed prescribed.
government learns of the commission of the
crime. The prevailing rule now is, prescription of
the crime is not waivable, the earlier
“Commission of the crime is public” -- This jurisprudence to the contrary had already
does not mean alone that the crime was been abrogated or overruled. Moreover, for
within public knowledge or committed in purposes of prescription, the period for filing
public. a complaint or information may not be
extended at all, even though the last day
Illustration: such prescriptive period falls on a holiday or
a Sunday.
In the crime of falsification of a document
that was registered in the proper registry of For instance, light felony prescribes in 60
the government like the Registry of Property days or two months. If the 60 th day falls on
or the Registry of Deeds of the Civil a Sunday, the filing of the complaint on the
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
succeeding Monday is already fatal to the Actually, the penalty will prescribe from the
prosecution of the crime because the crime moment the convict evades the service of
has already prescribed. the sentence. So if an accused was
convicted in the trial court, and the
The rules on Criminal Procedure for conviction becomes final and executory, so
purposes of prescription is that the filing of this fellow was arrested to serve the
the complaint even at the public sentence, on the way to the penitentiary,
prosecutor’s office suspends the running of the vehicle carrying him collided with
the prescriptive period, but not the filing with another vehicle and overturned, thus
the barangay. So the earlier rulings to the enabling the prisoner to escape, no matter
contrary are already abrogated by express how long such convict has been a fugitive
provision of the Revised Rules on Criminal from justice, the penalty imposed by the trial
Procedure. court will never prescribe because he has
not yet commenced the service of his
The prescription of the crime is interrupted sentence. For the penalty to prescribe, he
or suspended – must be brought to Muntinlupa, booked
there, placed inside the cell and thereafter
(1) When a complaint is filed in a proper he escapes.
barangay for conciliation or
mediation as required by Chapter 7, Whether it is prescription of crime or
Local Government Code, but the prescription of penalty, if the subject could
suspension of the prescriptive leave the Philippines and go to a country
period is good only for 60 days. with whom the Philippines has no
After which the prescription will extradition treaty, the prescriptive period of
resume to run, whether the the crime or penalty shall remain
conciliation or mediation is suspended whenever he is out of the
terminated for not; country.
(2) When criminal case is filed in the When the offender leaves for a country to
prosecutor’s office, the prescription which the Philippines has an extradition
of the crime is suspended until the treaty, the running of the prescriptive period
accused is convicted or the will go on even if the offender leaves
proceeding is terminated for a cause Philippine territory for that country.
not attributable to the accused. Presently the Philippines has an extradition
treaty with Taiwan, Indonesia, Canada,
But where the crime is subject to Summary Australia, USA and Switzerland. So if the
Procedure, the prescription of the crime will offender goes to any of these countries, the
be suspended only when the information is prescriptive period still continues to run.
already filed with the trial court. It is not the
filing of the complaint, but the filing of the In the case of the prescription of the
information in the trial which will suspend penalty, the moment the convict commits
the prescription of the crime. another crime while he is fugitive from
justice, prescriptive period of the penalty
On the prescription of the penalty, the shall be suspended and shall not run in the
period will only commence to run when the meantime. The crime committed does not
convict has begun to serve the sentence. include the initial evasion of service of
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
sentence that the convict must perform again, although the marriage remains a
before the penalty shall begin to prescribe, valid marriage. Do not think that the
so that the initial crime of evasion of service marriage is avoided or annulled. The
of sentence does not suspend the marriage still subsists although the offended
prescription of penalty, it is the commission woman may re-file the complaint. The
of other crime, after the convict has evaded Supreme Court ruled that marriage
the service of penalty that will suspend such contemplated must be a real marriage and
period. not one entered to and not just to evade
punishment for the crime committed
because the offender will be compounding
Marriage the wrong he has committed.
CIVIL LIABILITY OF THE OFFENDER such property to the offended party. It can
only be done if the property is brought
within the jurisdiction of that court.
Civil liability of the offender falls under three
categories: For example, in a case where the offender
committed rape, during the rape, the
(1) Restitution and restoration; offender got on of the earrings of the victim.
When apprehended, the offender was
(2) Reparation of the damage caused; prosecuted for rape and theft. When the
and offender was asked why he got on of the
earrings of the victim, the offender
(3) Indemnification of consequential disclosed that he took one of the earrings in
damages. order to have a souvenir of the sexual
intercourse. Supreme Court ruled that the
crime committed is not theft and rape but
Restitution or restoration rape and unjust vexation for the taking of
the earring. The latter crime is not a crime
Restitution or restoration presupposes that against property, this is a crime against
the offended party was divested of property, personal security and liberty under Title IX
and such property must be returned. If the of Book II of the RPC. And yet, the offender
property is in the hands of a third party, the was required to restore or restitute the
same shall nevertheless be taken away earring to the offended woman.
from him and restored to the offended party,
even though such third party may be a Property will have to be restored to the
holder for value and a buyer in good faith of offended party even this would require the
the property, except when such third party taking of the property from a third person.
buys the property from a public sale where Where personal property was divested from
the law protects the buyer. the offended party pursuant to the
commission of the crime, the one who took
For example, if a third party bought a the same or accepted the same would be
property in a public auction conducted by doing so without the benefit of the just title.
the sheriff levied on the property of a So even if the property may have been
judgment creditor for an obligation, the bought by the third person, the same may
buyer of the property at such execution sale be taken from him and restored to the
is protected by law. The offended party offended party without an obligation on the
cannot divest him thereof. So the offended part of the offended party to pay him
party may only resort to reparation of the whatever he paid.
damage done from the offender.
The right to recover what he has paid will
Some believed that this civil liability is true be against the offender who sold it to him.
only in crimes against property, this is not On the other hand, if the crime was theft or
correct. Regardless of the crime robbery, the one who received the personal
committed, if the property is illegally taken property becomes a fence, he is not only
from the offended party during the required to restitute the personal property
commission of the crime, the court may but he incurs criminal liability in violation of
direct the offender to restore or restitute the Anti-Fencing Law.
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In case of human life, reparation of the Most importantly, refer to the persons who
damage cause is basically P50,000.00 are civilly liable under Articles 102 and 103.
value of human life, exclusive of other forms This pertains to the owner, proprietor of
of damages. This P50,000.00 may also hotels, inns, taverns and similar
increase whether such life was lost through establishments, an obligation to answer
intentional felony or criminal negligence, civilly for the loss or property of their guests.
whether the result of dolo or culpa. Also in
the crime of rape, the damages awarded to
the offended woman is generally
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Subsidiary civil liability is imposed in the If be complexing the crime, the penalty
following: would turn out to be higher, do not complex
anymore.
(1) In case of a felony committed under
the compulsion of an irresistible Example: Murder and theft (killed with
force. The person who employed treachery, then stole the right).
the irresistible force is subsidiarily Penalty: If complex – Reclusion temporal
liable; maximum to death.
If treated individually – Reclusion temporal
(2) In case of a felony committed under to Reclusion Perpetua.
an impulse of an equal or greater
injury. The person who generated
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REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Complex crime is not just a matter of homicide, robbery with rape, and rape with
penalty, but of substance under the Revised homicide.
Penal Code.
The compound crime and the complex
Plurality of crimes may be in the form of: crime are treated in Article 48 of the
Revised Penal Code. But in such article, a
(1) Compound crime; compound crime is also designated as a
complex crime, but “complex crimes” are
(2) Complex crime; and limited only to a situation where the
resulting felonies are grave and/or less
(3) Composite crime. grave.
The first form of the complex crime is even though the offender performed not a
actually a compound crime, is one where a single act but a series of acts. The only
single act constitutes two or more grave reason is that the series of acts are
and/or less grave felonies. The basis in impelled by a single criminal impulse.
complexing or compounding the crime is
the act. So that when an offender
performed more than one act, although CONTINUED AND CONTINUING CRIMES
similar, if they result in separate crimes,
there is no complex crime at all, instead, the In criminal law, when a series of acts are
offender shall be prosecuted for as many perpetrated in pursuance of a single
crimes as are committed under separate criminal impulse, there is what is called a
information. continued crime. In criminal procedure for
purposes of venue, this is referred to as a
When the single act brings about two or continuing crime.
more crimes, the offender is punished with
only one penalty, although in the maximum The term “continuing crimes” as sometimes
period, because he acted only with single used in lieu of the term “continued crimes”,
criminal impulse. The presumption is that, however, although both terms are
since there is only one act formed, it follows analogous, they are not really used with the
that there is only one criminal impulse and same import. “Continuing crime” is the
correctly, only one penalty should be term used in criminal procedure to denote
imposed. that a certain crime may be prosecuted and
tried not only before the court of the place
Conversely, when there are several acts where it was originally committed or began,
performed, the assumption is that each act but also before the court of the place where
is impelled by a distinct criminal impulse the crime was continued. Hence, the term
and for ever criminal impulse, a separate “continuing crime” is used in criminal
penalty. However, it may happen that the procedure when any of the material
offender is impelled only by a single ingredients of the crime was committed in
criminal impulse in committing a series of different places.
acts that brought about more than one
crime, considering that Criminal Law, if A “continued crime” is one where the
there is only one criminal impulse which offender performs a series of acts violating
brought about the commission of the crime, one and the same penal provision
the offender should be penalized only once. committed at the same place and about the
same time for the same criminal purpose,
There are in fact cases decided by the regardless of a series of acts done, it is
Supreme Court where the offender has regarded in law as one.
performed a series of acts but the acts
appeared to be impelled by one and the In People v. de Leon, where the accused
same impulse, the ruling is that a complex took five roosters from one and the same
crime is committed. In this case it is not the chicken coop, although, the roosters were
singleness of the act but the singleness of owned by different persons, it was held that
the impulse that has been considered. there is only one crime of theft committed,
There are cases where the Supreme Court because the accused acted out of a single
held that the crime committed is complex criminal impulse only. However performing
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a series of acts but this is one and the same single act. There were a series of acts, but
intent Supreme Court ruled that only one the decision in the Lawas case is correct.
crime is committed under one information. The confusion lies in this. While Article 48
speaks of a complex crime where a single
In People v. Lawas, the accused act constitutes two or more grave or less
constabulary soldiers were ordered to grave offenses, even those cases when the
march with several muslims from one barrio act is not a single but a series of acts
to another place. These soldiers feared resulting to two or more grave and less
that on the way, some of the Muslims may grave felonies, the Supreme Court
escape. So Lawas ordered the men to tie considered this as a complex crime when
the Muslims by the hand connecting one the act is the product of one single criminal
with the other, so no one would run away. impulse.
When the hands of the Muslims were tied,
one of them protested, he did not want to If confronted with a problem, use the
be included among those who were tied standard or condition that it refers not only
becase he was a Hajji, so the Hajji to the singleness of the act which brought
remonstrated and there was commotion. At two or more grave and/less grave felonies.
the height of the commotion, Lawas ordered The Supreme Court has extended this class
his men to fire, and the soldiers of complex crime to those cases when the
mechanically fired. Eleven were killed and offender performed not a single act but a
several others were wounded. The series of acts as long as it is the product of
question of whether the constabulary a single criminal impulse.
soldiers should be prosecuted for the killing
of each under a separate information has You cannot find an article in the Revised
reached the Supreme Court. The Supreme Penal Code with respect to the continued
Court ruled that the accused should be crime or continuing crime. The nearest
prosecuted only in one information, article is Article 48. Such situation is also
because a complex crime of multiple brought under the operation of Article 48.
homicide was committed by them.
In People v. Garcia, the accused were
In another case, a band of robbers came convicts who were members of a certain
across a compound where a sugar mill is gang and they conspired to kill the other
located. The workers of said mill have their gang. Some of the accused killed their
quarters within the compound. The band of victims in one place within the same
robbers ransacked the different quarters penitentiary, some killed the others in
therein. It was held that there is only one another place within the same penitentiary.
crime committed – multiple robbery, not The Supreme Court ruled that all accused
because of Article 48 but because this is a should be punished under one information
continued crime. When the robbers entered because they acted in conspiracy. The act
the compound, they were moved by a of one is the act of all. Because there were
single criminal intent. Not because there several victims killed and some were
were several quarters robbed. This mortally wounded, the accused should be
becomes a complex crime. held for the complex crime of multiple
homicide with multiple frustrated homicide.
The definition in Article 48 is not honored There is a complex crime not only when
because the accused did not perform a there is a single act but a series of acts. It
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is correct that when the offender acted in convicted of four rapes. In the eyes of the
conspiracy, this crime is considered as one law, each committed four crimes of rape.
and prosecuted under one information. One of the four rapes committed by one of
Although in this case, the offenders did not them was complexed with the crime of
only kill one person but killed different abduction. The other three rapes are
persons, so it is clear that in killing of one distinct counts of rape. The three rapes are
victim or the killing of another victim, not necessary to commit the other rapes.
another act out of this is done Therefore, separate complaints/information.
simultaneously. Supreme Court considered
this as complex. Although the killings did In People v. Pabasa, the Supreme Court
not result from one single act. through Justice Aquino ruled that there is
only one count of forcible abduction with
In criminal procedure, it is prohibited to rape committed by the offenders who
charge more than one offense in an abducted the two women and abused them
information, except when the crimes in one several times. This was only a dissenting
information constitute a complex crime or a opinion of Justice Aquino, that there could
special complex crime. be only one complex crimeof abduction with
rape, regardless of the number of rapes
So whenever the Supreme Court concludes committed because all the rapes are but
that the criminal should be punished only committed out of one and the same lewd
once, because they acted in conspiracy or design which impelled the offender to
under the same criminal impulse, it is abduct the victim.
necessary to embody these crimes under
one single information. It is necessary to In People v. Bojas, the Supreme Court
consider them as complex crimes even if followed the ruling in People v. Jose that
the essence of the crime does not fit the the four men who abducted and abused the
definition of Art 48, because there is no offended women were held liable for one
other provision in the RPC. crime – one count or forcible abudction with
rape and distinct charges for rape for the
Duplicity of offenses, in order not to violate other rapes committed by them.
this rule, it must be called a complex crime.
In People v. Bulaong, the Supreme Court
In earlier rulings on abduction with rape, if adopted the dissenting opinion of Justice
several offenders abducted the woman and Aquino in People v. Pabasa, that when
abused her, there is multiple rape. The several persons abducted a woman and
offenders are to be convicted of one count abused her, regardless of the number of
of rape and separately charged of the other rapes committed, there should only be one
rapes. complex crime of forcible abduction with
rape. The rapes committed were in the
In People v. Jose, there were four nature of a continued crime characterized
participants here. They abducted the by the same lewd design which is an
woman, after which, the four took turns in essential element in the crime of forcible
abusing her. It was held that each one of abduction.
the four became liable not only for his own
rape but also for those committed by the The abuse amounting to rape is complexed
others. Each of the four offenders was with forcible abduction because the
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abduction was already consummated when the same information charging the offender
the victim was raped. The forcible with grave and/or less grave felonies
abduction must be complexed therewith. resulting from the negligence of reckless
But the multiple rapes should be considered imprudence and this runs counter to the
only as one because they are in the nature provision of Article 48. So while the
of a continued crime. Supreme Court ruled that the light felony
resulting from the same criminal negligence
Note: This is a dangerous view because should be complexed with the other felonies
the abductors will commit as much rape as because that would be a blatant violation of
they can, after all, only one complex crime Article 48, instead the Supreme Court
of rape would arise. stated that an additional penalty should be
imposed for the light felony. This would
In adultery, each intercourse constitutes mean two penalties to be imposed, one for
one crime. Apparently, the singleness of the complex crime and one for the light
the act is not considered a single crime. felony. It cannot separate the light felony
Each intercourse brings with it the danger of because it appears that the culpa is crime
bringing one stranger in the family of the itself and you cannot split the crime.
husband.
Applying the concept of the “continued
Article 48 also applies in cases when out of crime”, the following cases have been
a single act of negligence or imprudence, treated as constituting one crime only:
two or more grave or less grave felonies
resulted, although only the first part thereof (1) The theft of 13 cows belonging to
(compound crime). The second part of two different persons committed by
Article 48 does not apply, referring to the the accused at the same place and
complex crime proper because this applies period of time (People v. Tumlos,
or refers only to a deliberate commission of 67 Phil. 320);
one offense to commit another offense.
(2) The theft of six roosters belonging to
However, a light felony may result from two different owners from the same
criminal negligence or imprudence, together coop and at the same period of time
with other grave or less grave felonies (People v. Jaranillo);
resulting therefrom and the Supreme Court
held that all felonies resulting from criminal (3) The illegal charging of fees for
negligence should be made subject of one service rendered by a lawyer every
information only. The reason being that, time he collects veteran’s benefits
there is only one information and on behalf of a client who agreed that
prosecution only. Otherwise, it would be attorney’s fees shall be paid out of
tantamount to splitting the criminal such benefits (People v. Sabbun,
negligence similar to splitting a cause of 10 SCAR 156). The collections of
action which is prohibited in civil cases. legal fees were impelled by the
same motive, that of collecting fees
Although under Article 48, a light felony for services rendered, and all acts of
should not be included in a complex crime, collection were made under the
yet by virtue of this ruling of the Supreme same criminal impulse.
Court, the light felony shall be included in
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On the other hand, the Supreme Court prosecution manifested that they would only
declined to apply the concept in the file one information. Subsequently, 32
following cases: amended informations were filed. The
Supreme Court directed the prosecution to
(1) Two Estafa cases, one which was consolidate the cases into one offense
committed during the period from because (1) they were in violation of the
January 19 to December, 1955 and same law – Executive Order No. 324; (2)
the other from January 1956 to July caused injury to one party only – the
1956 (People v. Dichupa, 13 Phil government; and (3) they were done in the
306). Said acts were committed on same day. The concept of delito
two different occasions; continuado has been applied to crimes
under special laws since in Article 10, the
(2) Several malversations committed in Revised Penal Code shall be
May, June and July 1936 and supplementary to special laws, unless the
falsifications to conceal said latter provides the contrary.
offenses committed in August and
October, 1936. The malversations
and falsifications were not the result
of one resolution to embezzle and
falsify (People v. CIV, 66 Phil. 351);