IX.

AGGRAVATING CIRCUMSTANCES

Q: What are AGGRAVATING CIRCUMSTANCES?

A: They are those which, if attendant in the commission of the crime, serve to
increase the penalty without, however, exceeding the maximum of the penalty
provided by law for the offense.

Basis of aggravating circumstances.

In contrast to mitigating circumstances which are based on the diminution of the elements of
dolo or the lesser degree of perversity of the offender, aggravating circumstances are based on
the greater perversity of the offender as manifested by the time of the commission of the offense,
the place, the means, ways or methods used in the commission of the felony, his relationship
with the offended party or other personal circumstances.

Four kinds of aggravating circumstances.

1) Generic — Those that can generally apply to all crimes. Example — Dwelling,
nighttime, or recidivism.

In Article 14, the circumstances in paragraphs NOS. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10,

14, 18, 19, and 20, except "by means of motor vehicles," are generic aggravating circumstances.

2) Specific — Those that apply only to particular crimes. Example — Ignominy in crimes
against chastity or cruelty and treachery in crimes against persons.

In Article 14, the circumstances in paragraphs Nos. 3 (except dwelling), 15,16,17 and 21 are
specific aggravating circumstances.

3) Qualifying — Those that change the nature of the crime. Example — Alevosia
(treachery) or evident premeditation qualifies the killing of a person to murder or abuse
of confidence (par 4) makes the crime of theft qualified (Art. 310)

Article 248 enumerates the qualifying aggravating circumstances which qualify the killing of
person to murder.

4) Inherent — Those that must of necessity accompany the commission of the crime or
those that are already a part of the commission of the felony and do not have the effect of
increasing the penalty. Example: Abuse of public office (par. 1) in crime of bribery in
Art. 210; breaking a wall (par 19) or unlawful entry (par 18) in robbery committed by
force upon things (Art. 299 and Art. 302); evident premeditation in robbery, theft, estafa,
adultery and concubinage.

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 5) Special or those that cannot be offset by an ordinary mitigating circumstance and has the
result of imposing the penalty in the maximum period.

Examples: Quasi-recidivism (Art. 160); Complex crime (Art. 48); Error in personae (Art.
49); Taking advantage of public position and membership in an organized or syndicated crime
group

NOTE: Under Sec. 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, aggravating
circumstances must be alleged in the information or complaint; otherwise, they cannot be
properly appreciated

Qualifying aggravating circumstance distinguished from generic aggravating circumstance.

1) The effect of a generic aggravating circumstance, not offset by any mitigating

circumstance, is to increase the penalty which should be imposed upon the accused to the
maximum period, but without exceeding the limit prescribed by law; while that of a
qualifying circumstance is not only to give the crime its proper and exclusive name but
also to place the author thereof in such a situation as to deserve no other penalty than that
specially prescribed by law for said crime. (People v. Bayot, 64 Phil. 269, 273)

2) A qualifying aggravating circumstance cannot be offset by a mitigating circumstance; a

generic aggravating circumstance may be compensated by a mitigating circumstance.

Aggravating circumstances which do not have the effect of increasing the penalty.

1. Aggravating circumstances (a) which in themselves constitute a crime specially

punishable by law, or (b) which are included by the law in defining a crime and prescribing the
penalty therefor shall not be taken into account for the purpose of increasing the penalty. (Art.
62, par. 1)

Examples: "That the crime be committed by means of x x x fire, x xx explosion" (Art. 14, par. 12)
is in itself a crime of arson (Art. 321) or crime involving destruction. (Art. 324) It is not to be
considered to increase the penalty for the crime of arson or for the crime involving destruction.

"That the act x x x be committed in the dwelling of the offended party" (Art. 14, par. 3)
or "that the crime be committed after an unlawful entry" (Art. 14, par. 18), or "that as a means to
the commission of a crime a wall, roof, floor, door, or window be broken (Art. 14, par. 19) is
included by Article 299 in defining robbery in an inhabited house. It shall not be taken into
account for the purpose of increasing the penalty for that kind of robbery.
2. The same rule shall apply with respect to any aggravating circumstance inherent in
the crime to such a degree that it must of necessity accompany the commission thereof. (Art. 62,
par. 2)

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 Examples: Evident premeditation is inherent in theft, robbery, estafa, adultery and
concubinage.

Taking advantage of public position is inherent in crimes where the offenders, who are
public officers, committed the crime in the exercise of their functions, such as in bribery,
malversation, etc.

Aggravating circumstances which are

personal to the offenders:

Aggravating circumstances which arise: (a) from the moral attributes of the offender; or (b) from
his private relations with the offended party; or (c) from any other personal cause, shall only
serve to aggravate the liability of the principals, accomplices, and accessories as to whom such
circumstances are attendant. (Art. 62, par. 3)

Examples:
1) A, with evident premeditation, gave B PI,000 to kill C. B immediately killed
C. Evident premeditation is an aggravating circumstance which arises from the moral
attribute of A. It shall serve to aggravate only the liability of A, but not that of B.

2) A, stepson of B, killed the latter. C, knowing that A killed B without justification, buried
the dead body of B to prevent the discovery of the crime. The private relation of A with B
shall serve to aggravate only the liability of A. It shall not serve to aggravate the liability
of C, the accessory. (Art. 19, par. 2)

DISREGARD OF RANK, SEX, AGE OR DWELLING

Par. 3 provides for four aggravating circumstances which, if present in the same case, should be
considered independently of each other and numerically reckoned accordingly (People v. Santos,
et al., 91 Phil. 320).

Ways in committing the aggravating circumstance under this paragraph The act be

committed:

(1) With insult or In disregard of the respect due to the offended party on account of his:
Rank, Age, Sex (RAS)

(2) That it be committed in the dwelling of the offended party, if the latter has not given
sufficient provocation.

"With insult or in disregard "

In the commission of the crime, the accused deliberately intended to offend or insult the sex or
age of the offended party.

Rank

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It refers to official, civil, or social position or standing. The designation or title of distinction
used to fix the relative position of the offended party in reference to others. There must be a
difference in the social condition of the offender and the offended party.

Age

Age applies in cases where the victim is of tender age or is of old age. It applies when the
offender is the father, mother, son or daughter of the offended party.

Sex

Sex refers to female sex, not to male sex.

When aggravating circumstance of disregard of rank,

age, sex not considered for the purpose of increasing
penalty

1. When the offender acted with passion or obfuscation (All three circumstances)

2. When there exists a relationship between the offended party and the offender
(circumstance of sex only), e.g. parricide, rape, abduction and seduction

3. When the condition of being a woman is indispensable in the commission of the crime.

NOTE: Disregard of rank, age or sex is essentially applicable only to crimes against honor or
persons. They are not taken into account in crimes against property. They do not apply to the
special complex crime of robbery with homicide which is classified as crime against property.

DWELLING

Dwelling is a building or structure exclusively used for rest or comfort includes temporary
dwelling, dependencies, foot of the staircase and enclosure of the house. It does not mean the
permanent residence or domicile of the offended party or that he must be owner thereof. He
must, however, be actually living or dwelling therein even for a temporary duration or purpose.

When dwelling is not aggravating

1. When the owner of the dwelling gave sufficient and immediate provocation.

2. When the offender and the offended party are occupants of the same house.

4. In the crime of robbery by use of force upon things.

5. In the crime of trespass to dwelling.

6. The victim is not a dweller of the house.

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7. When both the offender and the offended party are occupants of the same house except in
case of adultery in the conjugal dwelling, the same is aggravating; however, if one of the
dwellers therein becomes a paramour, the applicable aggravating circumstance is abuse of
confidence.

ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS

NOTE: These are two separate aggravating circumstances.

Abuse of confidence

This circumstance exists only when the offended party has trusted the offender who later abuses
such trust by committing the crime.

Requisites of abuse of confidence

(1) The offended party had trusted the offender.

(2) The offender abused such trust by committing a crime against the
offended party
(3) The abuse of confidence facilitated the commission of the crime

NOTE: The confidence between the parties must be immediate and personal, as would give the
accused the advantage or make it easier for him to commit the crime. The confidence must be a
means of facilitating the commission of a crime.

Abuse of confidence is inherent in the following crimes

(1) Malversation (Art. 217)

(2) Qualified Theft (Art. 310)
(3) Estafa by conversion or misappropriation (Art 315)
(4) Qualified Seduction (Art. 337)

NOTE: The ungratefulness must be such clear and manifest ingratitude on the part of the
accused.

NIGHTTIME, UNINHABITED PLACE OR BY A BAND

Consideration of the circumstances

These circumstances should be considered separately.

Instances when nighttime, uninhabited place or band are considered aggravating

When:

1) It facilitated the commission of the crime.

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 2) It especially sought for by the offender to ensure the commission of the crime or for
the purpose of impunity.
3) The offender took advantage thereof for the purpose of impunity.

NOTE: "Especially sought" means that the offender sought it in order to realize the crime with
more ease.

"Impunity" means to prevent the offender from being recognized or to secure himself against
detection and punishment.

Night time

Nigh time or nocturnity is a period from after sunset to sunrise, from dusk to dawn. It is
necessary that the commission of the crime was commenced and completed at night time.

Darkness of the night makes nighttime an aggravating circumstance. Hence when the place of the
crime is illuminated or sufficiently lighted, nighttime is not aggravating. It is also necessary that
the commission of the crime was begun and completed at nighttime. Hence, where the series of
acts necessary for its commission was begun at daytime and was completed that night (People v.
Luchico, 49 Phil. 689), or was begun at night and consummated the following day (U.S. v.
Dowdell, Jr., et a!., 11 Phil 4), the aggravating circumstance of nighttime was not applied.

NOTE: Lighting of a matchstick or use of flashlights does not negate the aggravating
circumstance of night time. It must be shown that the offender purposely sought the cover of the
darkness to commit the crime, or that the nighttime facilitated the commission of the crime.

Reasons why night time is considered aggravating:

(1) During night time, recognition of the accused is harder.

(2) Harder for the victim to defend himself.
(3) Night time provides security for the accused.
(4) Mere presence of darkness gives others anxiety or fear.

Rule: Nighttime is absorbed in treachery

Except: Where both the treacherous mode of attack and nocturnity were deliberately decided
upon, they can be considered separately If such circumstances have different factual bases.

Uninhabited place (despoblado)

It is where there are no houses at all, a place at a considerable distance from town or where the
houses are scattered at a great distance from each other. It is not determined by the distance of
the nearest house to the scene of the crime but whether or not in the place of the commission of
the offense there was a reasonable possibility of the victim receiving some help.

Instances when uninhabited place is aggravating

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To be aggravating, it is necessary that the offender took advantage of the place and purposely
availed of it as to make it easier to commit the crime. The offender must choose the place as an
aid either:

1) To an easy and uninterrupted accomplishment of their criminal designs; or

2) To insure concealment of the offense

BAND

It means that there are at least four armed malefactors acting together in the commission of the
offense.

The RPC does not require any particular arms or weapons, so any instrument or implement
which, by reason of intrinsic nature or the purpose for which it was made or used by the accused,
is capable of inflicting serious injuries.

The aggravating circumstance of by a band is considered in crimes against property and in

crimes against persons. This aggravating circumstance is not applicable in crimes against
chastity.

AID OF ARMED MEN

When such circumstance is present

It is present when the crime it is attached to is committed with the aid of:

1) Armed men , or
2) Persons who insure or afford impunity

Requisites

1) That armed men or persons took part in the commission of the crime, directly or
indirectly

2) That the accused availed himself of their aid or relied upon them when the crime is
committed,

NOTE: Arms is not limited to firearms. Bolos, knives, sticks and stones are included. Aid of armed
men includes armed women.

Circumstances when aid of armed men is not

considered as an aggravating circumstance

(1) When both the attacking party and the party attacked were equally armed

(2) When the accused as well as those who cooperated with him in the commission of the crime
acted under the same plan and for the same purpose.

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(3) The casual presence of the armed men near the place where the crime was committed when
the accused did not avail himself of their aid or relied upon them to commit the crime.

Q: What aggravating circumstance will be considered if there are four armed men?

A: If there are four armed men, aid of armed men is absorbed in employment of a
band. If there are three armed men or less, aid of armed men may be the aggravating
circumstance.

RECIDIVISM

Q: What are the different forms of Habituality?

A: (1) Recidivism (Par. 9); (2) Reiteracion (Par. 10); (3) Habitual
Delinquency (Par. 5, Art. 62); and, (4) Quasi-Recidivism (Art. 160)

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

Requisites:

1. That the offender is on trial for an offense;

2. That he was previously convicted by final judgment of another crime;
2. That both the first and the second offenses are embraced in the same title
of the Code;
3. That the offender is convicted of the new offense.

“At the time of his trial for one crime."

What is controlling is the time of trial, not the time of the commission of the crime. It is
not required that at the time of the commission of the crime, the accused should have been
previously convicted by final judgment of another crime.

Meaning of "at the time of his trial for one crime." The phrase "at the time of his trial" should not
be restrictively construed as to mean the date of arraignment. It is employed in its general sense,
including the rendering of the judgment. It is meant to include everything that is done in the
course of the trial, from arraignment until after sentence is announced by the judge in open court .

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Take note that the law uses the term “convicted by final judgment” --- so if A was convicted of
homicide but his case was appealed to the CA, and now he is found guilty of the crime of
homicide, he cannot be deemed as a recidivist because his first case has not attained finality in
view of the appeal made. – no final convicted yet.

Q: Supposing, A was convicted by final judgment of the crime of physical injuries

twenty (20) years ago. In 2012, A is facing the crime of homicide. Can A be
considered as a recidivist?
A: Yes. It is imprescriptible because the law requires only prior conviction without
any time limitation prescribed and hence, is taken into account no matter how long a
time had lapsed between the first and second convictions.

Q: Suppose A is found guilty of homicide and the judgment has become final &
executory in 2002. But A was granted absolute pardon by the President. A never
spent a day in jail. In 2011, A committed another crime of physical injuries. Is A
considered as a recidivist?
A: Yes, the law does not require service of sentence.---even if he was pardoned, the
pardon may erase the penalty but it will not erase the fact of conviction.

Q: What is required for recidivism to be appreciated?

A: Recidivism cannot be appreciated where the prosecution failed to present certified
true copies of the judgment of conviction. It is not cured by the failure of the accused
to object to such lack of presen- tation. Recidivism is an affirmative allegation
whenever alleged in the information and when the accused enters a plea of not guilty
to such information, there is a joinder of issues not only as to his guilt or innocence
but also as to the presence or absence of the modifying circumstances so alleged.
(People vs. Compendio, Jr., 71 SCAD or 259 SCRA)

Effect of pardon to recidivism

Rule: Pardon does not obliterate recidivism, even if it is absolute because it only excuse the
service of the penalty not the conviction.

Except: If the offender had already served out his sentence and was
subsequently extended pardon.

NOTE: If The President extends pardon to someone who already served out the principal penalty,
there is a presumed intention to remove recidivism.

Effect of amnesty to recidivism

Amnesty extinguishes the penalty and its effects, thus it obliterates recidivism.

Recidivism not subject to prescription

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No matter how long ago the offender was convicted, if he is subsequently convicted of a crime
embraced in the same title of the RPC, it is taken into account as aggravating in imposing the
penalty.

REITERACION

Q: What is reiteracion?
A: It is a circumstance where the offender has been previously punished (has served
sentence). The first offense must have been punished with an equal or greater penalty;
or he has committed two or more crimes previously to which the law attaches a
lighter penalty. It does not require that the offenses be covered under the same title of
the Code.

Requisites of reiteracion or habituality:

1. That the accused is on trial for an offense.

2. That the accused previously served sentence for another offense to which
the law attaches an: equal, or greater penalty, or for two or more crimes to which
the law attaches a lighter penalty than that for the new offense.

Problem:

Q: A was convicted before & punished for theft (a crime against property) for which
he was sentenced to the penalty of Reclusion Temporal. Now, A is found guilty of
homicide ( a crime against person--
-- it is not embraced in the same title of the RPC). Is there reiteracion?

A: Here Reiteracion applies because he has been previously punished for another
crime for which the law attaches a higher penalty.

Q: Suppose the penalty for the first felony is prision mayor and the penalty for the
new felony is prision mayor also. Is there reiteracion?

A: Reiteracion applies because the law says he has been punished for a crime to
which the law attaches an equal penalty. Either higher or the same.

Problem:

Q: X in some years ago was found guilty of slight physical injuries – a light felony
and he was sentenced to One day of Arresto Menor. Two Years later, X was found
guilty of Slight Oral Defamation (Crimes Against Honor). He was sentenced to a
penalty of Arresto Menor also. Now, he is found guilty of Estafa (crimes against
property) and he is punished with the penalty of Reclusion Temporal. Is there
reiteracion?

A: Absolutely, he is not a recidivist because the crimes are not embraced in the same
title of the RPC. But is there Reiteracion here? Ans: Yes, because he has been
previously punished for 2 offenses to which the law attaches a lesser penalty.

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Note: The accused must have been previously punished. If pardon, there is no reiteracion.

Distinguish between recidivism and reiteracion.

RECIDIVISM REITERACION

Antecedent: Previous conviction by final Service of sentence.

judgment.

Offenses: Under the same title of the Code Need not be under the same
Title

Q: What is QUASI RECIDIVISM?

A: It takes place when a person before serving sentence or while serving
sentence, shall commit another felony.

This is a special aggravating circumstance which imposes the maximum of the

penalty for the new offense. It cannot be offset by any mitigating circumstance.

Do not be misled by the word "another" felony.

It makes no difference for the purpose of the effect of quasi- recidivism under Art. 160 of the
RPC, whether the crime for which the accused is serving sentence or about to serve sentence at
the time of the commission of the offense charged, falls under the Code or under a special law.

What is important is that before serving or while serving sentence, the convict commits a
felony (not a crime).

Problem:

Q: X was charged and convicted of Theft. Before serving sentence, he was arrested
for Illegal Possession of Firearms. Is he a quasi-recidivist?
A: He is not a quasi-recidivist because the offense that he committed before serving
sentence is not a felony but a crime. Illegal Possession of Firearm is a crime punished
by PD. 1866 as amended by RA 8294, a special law. If instead, he committed
Falsification, he is a quasi- recidivist because he committed a felony before serving
sentence.

Q: X was charged and convicted of Theft. While serving sentence, he killed an

inmate and was charged with Homicide. Is he a quasi- recidivist?
A: He is a quasi-recidivist because while serving sentence, he committed a felony.

Q: What is habitual delinquency?

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 A: Habitual delinquency is a special aggravating circumstance for which is imposed
an additional penalty which escalates with the increase in the number of convictions.

A person is a habitual delinquent if:

a. Within a period of ten (10) years from the date of his release or last
conviction;
b Of the crimes of Falsification, Robbery, Estafa, Theft, SErious or Less
Serious Physical Injuries (FRETSeL),
c. He is found guilty of said crimes a third time or oftener.

The law requires a third conviction. The 2nd conviction must be committed within 10
years from the last conviction or release from prison; from the 2nd to the 3rd conviction, the
period must not be more than 10 years and so on. The 10-year period is counted from the date of
release if he had been released when again convicted.

This is a special aggravating circumstance because it is not included in Article 14 of the

Code. It is not an "ordinary" special aggravating circumstance because its effect is to impose an
incremental penalty, that is, an additional penalty to that imposed for the crime actually
committed. But it is not also a qualifying circumstance because although the increase in the
penalty is significant, it does not change the nature of the offense committed. Therefore, it must
be alleged, otherwise, no additional penalty can be imposed.

An offender can be a recidivist and a habitual delinquent at the same time if he were
convicted for the third time of the crimes of estafa, robbery and theft which are all within the
same title of the Code.

Distinguish between Recidivism and Habitual Delinquency

Recidivism Habitual Delinquency

Convictions: Two are enough Three convictions are necessary.

Crimes: Must be both under Only

FRETSEL the same title of the
RPC

Prescriptions: None as no time limit Prescribes if the 10-year given

between the 1st limit between convictions
& 2nd convictions. exceeded.

Nature: Generic; can be offset Special circumstance; cannot by any

ordinary mitiga- be offset.
ting circumstance.

Information: All must be alleged in the information

IN CONSIDERATION OF A PRICE REWARD OR PROMISE

Basis

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The greater perversity of the offender, as shown by the motivating power itself.
Requisites of "in consideration of a price, reward, or promise"
1. There are at least two principals
a. Principal by inducement
b. Principal by direct participation
2. The price, reward, or promise should be previous to and in consideration of
the commission of the criminal act.

NOTE: The price, reward or promise need not consist of or refer to material things, or that the
same were actually delivered, it being sufficient that the offer made by the principal by
inducement be accepted by the principal by direct participation before the commission of the
offense.

Note: It is appreciated against both the principal by inducement and principal by direct
participation.

BY MEANS OF INNUNDATION, FIRE, POISON, EXPLOSION ETC.

Rules as to the use of fire

1. Intent was only to burn but somebody died - The crime is arson, the penalty is
higher because somebody, died.
2. If fire was used as means to kill - the crime is murder not arson and fire cannot
be appreciated as aggravating circumstance.
3. There was an intention to kill and fire was used to conceal the crime -there
are two separate crimes: arson and murder.

EVIDENT PREMIDITATION

The essence of premeditation is that the execution of the criminal act must be preceded by cool
thought and upon reflection to carry out the criminal intent during the space of time sufficient to
arrive at a calm judgment.

Requisites

1) Determination - the time when the offender determined to commit the

crime.

2) Preparation - an act manifestly indicating that the culprit has clung to his
determination; and

3) Time - a sufficient lapse of time between the determination and execution,

to allow him to reflect upon the consequences of his act and to allow his
conscience to overcome the resolution of his will.

Reason for requiring sufficient time

The offender must have an opportunity to coolly and serenely think and deliberate on the
meaning and the consequences what he planned to do, an interval long enough for his conscience
and better judgment to overcome his evil desire.

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Appreciation of evident premeditation in error In personae and aberratio ictus

General Rule: Evident premeditation is not appreciated in error in personae and

aberratio ictus.

NOTE: However, it is not necessary to have the intent to kill a particular person.

Except:

1) When there is no particular intended victim or particular person to kill.

2) Where the victim belonged to the same class or family designated by the accused.

GR: Conspiracy generally denotes premeditation.

Except: In implied conspiracy, evident premeditation may not be appreciated, in the absence of
proof as to how and when the plan to kill the victim was hatched or what time had elapsed before
it was carried out

Problem:

A, B, C, D, E, F and G conspired to rob and kill the owner of the house. F is the stay
out house help who paved the way to the others to be able to enter the house. G is the
driver hired and paid to be the get away vehicle. Several meetings have been made to
discuss in detail how the crime should be perpetrated assigning each role in the
conspiracy. Their first attempt was foiled but in their second attempt that they
consummate the conspiracy.

Q: Can evident premeditation be appreciated?

A: YES. Evident premeditation is INHERENT in Robbery but it may be appreciated
in the special complex crime of Robbery with Homicide. “Their persistent attempts
sufficiently demonstrates how determined they were to adhere to their agreement
despite sufficient lapse of time. Moreover, that Charito and his cohorts went to great
lengths to hire Joseph to ferry them back and forth to the scene of the crime shows the
sobriety and circumspection surrounding their decision. Such circumstances therefore
show that the crime committed was a product of intent and coordination among the
accused. Hence, the aggravating circumstance of evident premeditation is present in
this case.” (People vs Olazo et.al. G.R. No. 220761, October 3, 2016)

CRAFT, FRAUD OR DISGUISE

To be appreciated, these circumstances must have facilitated or be taken advantage of by the

offender in the commission of a crime

Craft involves intellectual trickery and cunning on the part of the accused in order not to arouse
the suspicion of the victim.

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Fraud is insidious words or machinations used to induce the victim to act in a manner which
enables the offender to carry out his design.

NOTE: Craft and fraud may be absorbed in treachery if they have been deliberately adopted as
means, methods or forms for the treacherous strategy, or they may co-exist independently where
they are adopted for a different purpose in the commission of the crime.

Disguise means resorting to any device to conceal identity.

NOTE: The test of disguise is whether the device or contrivance, or even the assumed name
resorted to by the offender was intended to make identification more difficult.

Necessity that the accused be able to hide his

identity all throughout the commission of the
crime

It is not necessary that the accused be able to hide his identity all throughout the commission of
the crime. The accused must be able to hide his identity during the initial stage if not all
throughout the commission of the crime and his identity must have been discovered only later on
to consider this aggravating circumstance.

Q: What is the test in order to determine if disguise exist?

A: Whether the device or contrivance resorted to by the offender was intended to or

did make identification more difficult, such as the use of a mask or false hair or
beard. If in spite of the disguise, the offender was recognized, disguise cannot be
aggravating.

ABUSE OF SUPERIOR STRENGTH OR MEANS EMPLOYED TO WEAKEN THE

DEFENSE.

Abuse of superior strength is considered whenever there is a notorious inequality of forces

between the victim and the aggressor, assessing a superiority of strength notoriously
advantageous for the aggressor which is selected or taken advantage of in the commission of the
crime (People vs. Bongadillo, 234 SCRA233 [1994]).

Case: People vs Olazo et.al., G.R. No. 220761, October 3, 2016

SC: Meanwhile, to appreciate the qualifying circumstance of abuse of superior strength, what is
to be considered is whether the aggressors took advantage of their combined strength in order to
consummate the offense, e.g., that excessive force out of proportion to the means of defense
available to the victim was used. 36 In the case at bench, the records disclose that during the
commission of the offense, Nicanor Vallecera was hogtied by three (3) of the perpetrators, while
Erlinda Vallecera, a woman, was successively and fatally injured using a samurai sword and a
long knife. Clearly, the means employed by the culprits were patently excessive, there being no
indication of retaliation from the spouses Vallecera as their means of defense were greatly, if not
absolutely, diminished. In this regard, the aggravating circumstance of "superior strength" is
properly cognizable.

15
Abuse of superior strength
considered as aggravating

The aggravating circumstance of abuse of superior strength depends on the age, size, and
strength of the parties. It is considered whenever there is a notorious inequality of forces
between the victim and the aggressor.

NOTE: For abuse of superior strength, the test is the relative strength of the offender and his
victim, and whether or not he took advantage of his greater strength. Superiority in number does
not necessarily mean superiority in strength. The accused must have cooperated and intended to
use or secure advantage from their superiority in strength (People v. Basas, G.R. No. L-34251,
Jan. 30,1982)

Determination of the presence of abuse of

superiority

Abuse of superiority is determined by the excess of the aggressor's natural strength over that of
the victim, considering the position of both and the employment of means to weaken the defense,
although not annulling it. The aggressor must have taken advantage of his natural strength to
insure the commission of the crime (People v. Salcedo, G.R. No. 178272, March 14, 2011).

"Means to weaken the defense"

It exists when the offended party's resisting power is materially weakened NOTE:

Means to weaken the defense may be absorbed in treachery.

TREACHERY

Treachery (aleviosa) refers to the employment of means, method, or form in the commission of
the crime which tend directly and specially to insure its execution without risk to himself arising
from the defense which the offended party might make. It means that the offended party was not
given the opportunity to defend himself.

The essence of the qualifying circumstance is the suddenness, surprise and the lack of
expectation that the attack will take place, thus, depriving the victim of any real opportunity for
self-defense while ensuring the commission of the crime without risk to the aggressor. Likewise,
even when the victim was forewarned of the danger to his person, treachery may still be
appreciated since what is decisive is that the execution of the attack made it impossible for the
victim to defend himself or to retaliate (People v. Villacorta, G.R. No. 186412, September 7,
2011)

Elements of treachery

a) The employment of means of execution that would insure the safety of the accused from
retaliatory acts of the intended victim and leaving the latter without an opportunity to
defend himself

16
 b) The means employed were deliberately or consciously adopted by the offender (People of
the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012)

Test of treachery : The test of treachery is not only the relative position of the parties but more
specifically whether or not the victim was forewarned or afforded the opportunity to make a
defense or to ward off the attack.

Rules regarding treachery

(1) Applicable only to crimes against persons.

(2) Means, methods, or forms insure its execution but need not insure accomplishment of
crime.
(3) The mode of attack must be thought of by the offender, and must not spring from the
unexpected turns of events

NOTE: Treachery cannot co-exist with passion or obfuscation (People v. Pansensoy, G.R. No.
140634, Sept. 12, 2002).

Q: Is there treachery when the attack is frontal?

A: Although frontal, if the attack was unexpected, and the unarmed victim was in
no position to repel the attack, treachery can still be appreciated (People v. Pelis,
G.R. No. 189328, February 21, 2011).

Appreciation of treachery in error in

personae and aberratio ictus

Treachery is appreciated in error in personae and aberratio ictus, provided that the offender
consciously employed treacherous means to insure the execution of the crime and to render the
victim defenseless.

Appreciation of both evident

premeditation and treachery

Evident premeditation and treachery can co-exist because evident premeditation refers to the
commission of the crime while treachery refers to the manner employed.

Appreciation of treachery in robbery with

homicide

Treachery can be appreciated in Robbery with homicide even though it is a crime against
property because one of its components is a crime against person.

Instances that may be absorbed by treachery

1) Abuse of superior strength

2) Aid of armed men

17
 3) By a band
4) Means to weaken the defense
5) Craft
6) Nighttime

Time when the element of treachery must be present

1) When the aggression is continuous -treachery must be present at the beginning of the
assault.
2) When the assault was not continuous- it is sufficient that treachery was present when the
fatal blow was given.

Q: A followed the unsuspecting victim, B, when he was going home and

thereafter, deliberately stabbed him at the back which resulted in the falling of B
to the ground and thereby was further attacked by A. Was there treachery?

A: Yes. B was defenseless . He had no opportunity to resist the attack or defend

himself. A employed means which insured the killing of B and such means
assured him from the risk of B's defense. Stabbing from behind is a good
indication of treachery (People v Yanson, G.R. No. 179195, October 3, 2011)

Case: Rustia vs People, G.R. No. 208351, October 5, 2016

SC: “Thus, it is not sufficient that the victim was unable to defend himself. The Prosecution must
show that the accused consciously adopted such mode of attack to facilitate the perpetration of
the killing without risk to himself.”

IGNOMINY

Ignominy --- It pertains to the moral order, which adds disgrace to the material injury caused by
the crime. Ignominy adds insult to injury or adds shame to the natural effects of :he crime.
Ignominy shocks the moral conscience of man.

Application

Ignominy is applicable in:

a) Crimes against chastity,

b) Less serious physical injuries,
c) Light or grave coercion, and
d) Murder.

No ignominy when a man is killed in the presence of his wife

The circumstance of ignominy was not present because no means employed nor did any
circumstance surround the act tending to make the effects of crime more humiliating.

Ignominy when a woman is raped in the presence of her husband

18
Ignominy can be appreciated. Rape is now a crime is now a crime against persons (R.A. 8353).
Presence of the husband qualifies the crime of rape under Art. 266.

Ignominy vs Cruelty

I
ignominy refers to Refers to the physical suffering of the
the moral effect of a victim purposely intended by the
crime and it pertains offender
to the moral order,
whether or not the
victim is dead or
alive.

UNLAWFUL ENTRY

Unlawful entry is aggravating when one who acts, not respecting the walls erected by men to
guard their property and provided for their personal safety, shows greater perversity, a greater
audacity and hence the law punishes him with more severity.

There is unlawful entry when an entrance is effected by a way not intended for the purpose.

NOTE: This circumstance is inherent in the crimes of trespass to dwelling and robbery with
force upon things. But it is aggravating in the crime of robbery with violence against or
intimidation of persons.

BREAKING WALL
Requisites
1. A wall, roof, window, or door was broken
2. They were broken to effect entrance

NOTE: It is aggravating only where the offender resorted to any of said means to enter the house..

Instances where breaking is lawful

1) An officer in order to make an arrest may break open door or window of any building in
which the person to be arrested is or is reasonably believed to be (Sec. 11, Rule 133 of
Rules of Court);
2) An officer if refused admittance may break open any door or window to execute the
search warrant or liberate himself (Sec. 7, Rule 126 of Rules of Court);
3) Replevin {Sec. 4, Rule 60 of Rules of Court)

Aid of minors

The use of a minor in the commission of the crime shows the greater perversity of the offender
because he is educating the innocent minor in committing a crime. It is intended to discourage
the exploitation of minors by criminals taking

19
advantage of their irresponsibility and the leniency of the law for the youthful offender.

Use of motor vehicle considered

The use of motor vehicles in the commission of a crime poses difficulties to the authorities in
apprehending the offenders. This circumstance is aggravating only when used to facilitate the
commission of the offense.

NOTE; If motor vehicle is used only in the escape of the offender, motor vehicle is not
aggravating as the law says that "the crime was committed by means of motor vehicle."

"Other similar means"

it should be understood as referring to motorized vehicles or other efficient means of

transportation similar to automobile or airplane.

CRUELTY

Q: When is there cruelty?

A: There is cruelty when the wrong done was intended to prolong the suffering of
the victim, causing him unnecessary moral and physical pain.

Requisites:

(1) The injury caused be deliberately increased by causing other wrong.

(2) The other wrong be unnecessary for the execution of the purpose of the
offender.

Cruelty not inherent in crimes against persons

In order for it to be appreciated, there must be positive proof that the wounds found on the body
of the victim were inflicted while he was still alive to unnecessarily prolong physical suffering.

NOTE: In mutilation, outraging 6f a corpse is considered as an aggravating circumstance, if the

victim was already dead when the acts of mutilation were being performed, this would qualify
the killing to murder due to outraging of his corpse.

Other aggravating circumstances

1) Organized or syndicated crime group 2)

3) Use of unlicensed
Under firearm
influence of dangerous drugs

ILLEGAL POSSESSION OF FIREARMS AND AMMUNITION

20
 NOTE; P.D. 1866 was amended by RA 8294 has been superseded by the new Firearms law
(RA 10591).

Use of unlicensed firearm

If homicide or murder is committed with the use of unlicensed firearm, such use
of unlicensed firearm shall be considered as an aggravating circumstance. If an
unlicensed firearm is used to commit a crime other than homicide or murder,
such as direct assault with attempted homicide, the use of unlicensed firearm is
neither an aggravating nor a separate offense (People v. Walpan Ladjaamlam,
GR 136149-51, September 19, 2000).

Q: When is use of unlicensed firearm considered absorbed as an element of the crime

committed?
A: If the use of unlicensed firearm is in furtherance of or incident to, or
in connection with the crime of rebellion or insurrection, sedition or
attempted coup d'etat, such shall be absorbed as an element of the
crimes mentioned (Sec. 1).

Q: If an unlicensed firearm was used to kill a person, can he be held guilty for a
separate offense of illegal possession of firearms aside from murder or homicide?
A: No. Where murder or homicide results from the use of an unlicensed
homicide,
firearm, theascrime
the case may
is no be. qualified illegal
longer In such a case, but murder
possession, or of the
the use

unlicensed firearm is not considered as a separate crime but shall be

appreciated as an aggravating circumstance, in view of the
amendments introduced by Republic Act. 8294 to Presidential Decree
no longer
no. 1866, inseparate
order, instead; illegalfor
prosecutions possession
homicideofand
firearms
illegalispossession
merely to are
be

taken as an aggravating circumstance in the homicide case (People v.

Avecilla, G.R. No. 117033, Feb. 15, 2001).

NOTE: Same ruling will be applicable in the new firearms law. In Section 29 of RA 10591,
the use
aggravating Otherwise,
of a loose firearm,
circumstance. whenthe use or possession
inherent of looseof
in the commission firearms
a crime
punishable
and under
violation the RPC
of other penalorlaw
other special
shall laws, as
be treated shall be considered
distinct crimes andaswill
an thus

be punished separately.
Necessity to present the firearm to consider
illegal possession of firearm as an aggravating
circumstance

It is not necessary to present the firearm before the court in order for illegal
possession of firearm as aggravating circumstance. The aggravating
circumstance of illegal possession of firearm can be appreciated even though
the firearm used was not recovered. The actual firearm itself need not be
resented if its existence can be proved by the testimonies of witnesses or by
other evidence presented (People v Agcanas, G.R. No. 174476, October 11,
2011)

21
Good faith is not a valid defense against
prosecution for illegal possession of firearm

Illegal Possession of Firearm is malum prohibitum.

Illustration: Accused who was apprehended for carrying a cal. 9mm firearm and ammunitions
without the proper license to possess the same, claimed to be a confidential agent of the AFP and
in that capacity received the said firearm and ammunitions which is government property duly
licensed to the Intelligence Security Group (ISG) of the AFP and so could not be licensed under
his name. Although the accused had a Memorandum Receipt and A Mission Order issued by
ISG, whereby he was entrusted with such firearm and ammunitions which he was authorized to
carry around, he was nevertheless convicted for the subject violation in as much as a
Memorandum Receipt and Mission Order cannot take the place of a duly issued firearm license.
The accused cannot invoke good faith as a defense against a prosecution for illegal possession of
firearm, as this is a malum prohibitum (Sayco v. People, G.R. 159703, March 3, 2008).

Penalty

The use of a loose firearm when inherent in the commission of a crime

punishable by the Revised Penal Code or other special laws shall be considered
as an aggravating circumstance. Provided, that if the crime committed with the use of a
loose firearm is penalized by the law with a maximum penalty which is lower than that
prescribed in the preceding sections for illegal possession of firearms, the penalty for illegal
possession of firearms shall be imposed in lieu of the penalty for the crime charged. Provided
further, that if the crime committed
with the use of a loose firearm is penalized by the law with maximum penalty which is equal to
that imposed under the preceding sections for illegal possession of firearms, the penalty of
prision mayor in its minimum period shall be imposed in addition to the penalty for the crime
punishable under the RPC or other special laws of which he/she is found guilty.

NOTE: If the crime is committed by the person without using the loose firearm, the violation of
this Act shall be considered as a distinct and separate offense
{Sec. 29, R.A. 10591)

DANGEROUS DRUGS LAW – RA 9165

Notwithstanding the provisions of any law to the contrary, a positive finding for
the use of dangerous drugs shall be a qualifying aggravating circumstance in
the commission of a crime by an offender, and the application of the penalty
provided for in the Revised Penal Code shall be applicable
(Sec. 25)

22