ARTICLE 13.

Mitigating Circumstances (10) – Video 5

The following are mitigating circumstances:

1. Those mentioned in the preceding chapter, when all the requisites necessary to justify
the act or to exempt from criminal liability in the respective cases are not attendant.

2. That the offender is under eighteen years of age or over seventy years. In the case of
the minor, he shall be proceeded against in accordance with the provisions of article 80.

3. That the offender had no intention to commit so grave a wrong as that committed.

4. That sufficient provocation or threat on the part of the offended party immediately
preceded the act.

5. That the act was committed in the immediate vindication of a grave offense to the
one committing the felony (delito), his spouse, ascendants, descendants, legitimate,
natural, or adopted brothers or sisters, or relatives by affinity within the same degrees.

6. That of having acted upon an impulse so powerful as naturally to have produced

passion or obfuscation.

7. That the offender had voluntarily surrendered himself to a person in authority or his
agents, or that he had voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.

8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect
which thus restricts his means of action, defense, or communication with his fellow
beings.

9. Such illness of the offender as would diminish the exercise of the will-power of the
offender without however depriving him of consciousness of his acts.

10. And, finally, any other circumstance of a similar nature and analogous to those
above mentioned.

DISCUSSION:
MITIGATING CIRCUMSTANCE
 It affects the penalty
 They are based on diminution on either freedom of action, intelligence or intent or the
lesser perversity of the offender

1. INCOMPLETE JUSTIFYING / EXEMPTING CIRCUMSTANCE

 Do not entirely absolve the criminal liability, but they will serve to reduce penalty
 Lower penalty is prescribed
 Not all requisites necessary to justify the act or to exempt from criminal liability in the
respective cases are attendant
 If your client does not qualify to justifying / exempting circumstances, try to see under
Article 13 as mitigating circumstances
INCOMPLETE JUSTIFYING CIRCUMSTANCE OF
SELF-DEFENSE, DEFENSE OF RELATIVES, DEFENSE OF STRANGER
o Unlawful Aggression must always be present – this is an indispensable requisite
o One or two of the other requisites are not present in any of the cases referred to
in the circumstance

INCOMPLETE JUSTIFYING CIRCUMSTANCE OF

AVOIDANCE OF GREATER EVIL OR INJURY
o That the evil sought to be avoided actually exists – this is the indispensable
requisite
o Other requisites not needed:
 That the injury feared be greater than that done to avoid it
 That there be no other practical and less harmful means of preventing it
o If only the last two requisites are lacking, then it is an incomplete justifying
circumstance, or a mitigating circumstance

INCOMPLETE JUSTIFYING CIRCUMSTANCE OF

PERFORMANCE OF DUTY
o The requisites:
 That the accused acted in the performance of duty or in the lawful
exercise of a right or office
 That the injury caused or offense committed be the necessary
consequence of the due performance of such duty or the lawful exercise
of such right or office
o As long as one of the two requisites as constituting the majority, it seems there is
an ordinary mitigating circumstance

INCOMPLETE EXEMPTING CIRCUMSTANCE OF

ACCIDENT
o Requisites:
 A person is performing a lawful act
 He does it with due care
 He causes an injury to other by mere accident
 Without fault or intention of causing it
o If the second requisite and first part of the fourth requisite are absent, the case
falls under Article 365 which punishes reckless imprudence (due care, without
fault or intention)
o If the first requisite and the second part of the fourth requisite are absent, it will
be an intentional felony

INCOMPLETE EXEMPTING CIRCUMSTANCE OF

UNCONTROLLABLE FEAR

o Requisites:
 That the threat which causes the fear was of evil greater than or at least
equal to that which he was required to commit
 That it promised an evil of such gravity and eminence that an ordinary
person would have succumb to it
o If only one of these two requisites are present, you can claim an incomplete
circumstance of uncontrollable fear
2. MINORITY & SENIORITY

INCOMPLETE EXEMPTING CIRCUMSTANCE OF

MINORITY

o Consider age of the offender at the time of commission of the crime, not on the
date of sentence
o Suspension of sentence:
 If lowering the penalty, you take a look at the age of the person at the time
he committed the crime
 If you are looking at the suspension of the sentence, it is based on the age of
offender
o Note: Article 80 has been amended

3. LACK OF INTENTION TO COMMIT SO GRAVE A WRONG

INCOMPLETE EXEMPTING CIRCUMSTANCE OF

THE LACK OF INTENTION TO COMMIT SO GRAVE A WRONG AS THAT COMMITTED
(PRAETER INTENTIONEM)

o Requisites:
 There must be a notable disproportion between the means employed bythe
offender and the resulting harm (example: you only intend to punch him but
he died)
 The intention is an internal act (you can never see intention, you can only
prove intention through overt acts)
o The lack of intention to commit so grave a wrong can also be inferred
immediately after committing the offense such as when the accuse help his
victim to secure medical treatment, weapon used (means), part of body injured,
the injury inflicted and the manner is inflicted
o This circumstance does not apply when the crime results from criminal
negligence or culpa
o Differentiate Praeter from culpa. Note in dolo, it is intentional
 Praeter Intentionem - intentional, but the intent you have in mind is less
perverse than what was actually suffered
 Culpa - there is negligence, absent of intention
o Only applicable to offenses resulting in death, physical injuries or material harm,
including property damage. It is not applicable to defamation and slander, or
when the offender employed brute force
o Not appreciated when the offense committed is characterized by treachery

4. SUFFICIENT PROVOCATION OR THREAT ON THE PART OF THE OFFENDED

PARTY IMMEDIATELY PRECEDED THE ACT

o Justifying circumstance of Self Defense VS sufficient provocation

 SELF DEFENSE: Lack of sufficient provocation on the part of the person
doing the self defense
 SUFFICIENT PROVOCATION: It is the presence of sufficient provocation or
threat on the part of the offended party immediately preceded the act
 o Requisites:
 The provocation must be sufficient
 Provocation must originate from the offended party
 Provocation must be immediately preceding the act
o Provocation – Any unjust or improper conduct or act of the offended party
capable of exciting, inciting and irritating anyone
o Sufficient provocation as a requisite of INCOMPLETE SELF DEFENSE – pertains to
the absence of the part of the person defending himself
o Provocation as a mitigating circumstance – it is present on the part of the
offended party

5. IMMEDIATE VINDICATION OF A GRAVE OFFENSE

o Elements:
 That there must be a grave offense done to the one committing the felony,
his spouse, descendants, ascendants, legitimate, natural or adopted
brothers and sisters, relatives by affinity within the same degree
 That the felony is committed in vindication of such grave offense. A lapse of
time is allowed between vindication and the doing of the grave offense
 The vindication need not be done by the person upon whom the grave
offense was committed.
o How do you know that it is grave? – gravity must be decided by the court having
in mind the social standing of the person, the place and the time when the insult
was made
o The vindication of the grave offense and passion and obfuscation cannot be
counted separately
o The mitigating circumstance of sufficient provocation cannot considered a part
of the circumstance of vindication of a grave offense
o Paragraph 5 and Paragraph 4 cannot be availed of together, you can only choose
one because they are closely intertwined
o Provocation vs Vindication:

PROVOCATION
 Made directly to the person
committing the felony
 Offense need not be a grave
offense (as long as there is
provocation)
 Provocation or threat must
immediately precede the act
 It is a mere spite against the one
giving the provocation
VINDICATION
 The grave offense may be
committed against the offender’s
relatives
 The offended party must have
done a grave offense to the
offender or his relatives
 Lapse of time is allowed
 It concerns the honor of the
person.

6. PASSION & OBFUSCATION

o Elements:
 That the accused acted upon an impulse
 The impulse must be so powerful that it naturally produces passion or
obfuscation in him
 There must be an act
  It must be both unlawful and sufficient to produce such a condition of
mind
 That the said act which produce the obfuscation was not far removed
from the commission of crime by a considerable length of time
o Passion and obfuscation must arise from lawful sentiments
o Not applicable when the act committed is lawlessness or in the spirit of revenge
o If you acted on jealousy, Passion and obfuscation cannot be invoked in favor of
the accused whose relationship with the woman was illegitimate.
o There must be no delay

o Passion and Obfuscation VS Irresistible Force

 Passion and Obfuscation – mitigating circumstance. It comes from the
offender himself. It must arise from lawful sentiments for it to be
considered mitigating
 Irresistible Force – exempting circumstance, the force must be so
irresistible that you are now lacking in control. Irresistible force comes
from a third person. It is unlawful
 The offense which engenders the perturbation of mind need not be
immediate

o Passion and Obfuscation VS Provocation

 Passion - is induced or produced by impulse which may be caused by
provocation. As long as there is proximity
 Provocation – comes from the injured party. Must immediately precede
the commission of the crime

7. VOLUNTARY SURRENDER & VOLUNTARY CONFESSION PRIOR TO

PROSECUTION

o Very common mitigating circumstance

o Requisites:
 That the offender has not yet been arrested
 That the offender surrendered himself to the person in authority or to
the latter’s agent
 The surrender was voluntary

o VOLUNTARY CONFESSION – prior to the presentation of the evidence for the

prosecution
 Even if you are arraigned but the prosecution has not yet presented
evidences, you can actually enter into a voluntary confession
 If it is already the turn of the defense to present evidence, and you enter
into voluntary confession, it is no longer accepted (reason: you have
already shown all the evidences and witnesses of the prosecution. You
might have been threatened by the strength of the witnesses and
evidences, there is no more “voluntariness”)

o VOLUNTARY CSURRENDER
 What if there is already a warrant of arrest and you surrendered? YES,
FOR AS LONG AS YOU HAVE NOT BEEN ACTUALLY ARRESTED.
 Exceptions:
 o (1.) If you are arrested, it can still be considered as a mitigating
circumstance if you voluntary surrender if a person after
committing the offense and having an opportunity to escape
voluntarily waited for the agents of authority and voluntarily
gave up
o (2.) where the arrest of the offender was after his voluntary
surrender amounting to a voluntary surrender to the agent of
a person

 Who are persons in authority and agents of persons in authority?

 One directly vested with jurisdiction that is a public officer
who has the power to govern and execute laws whether as an
individual or as a member of some court or governmental
corporations, board or commissions (brgy captain, etc)
 Time of surrender: the RPC does not specify when surrender can occur.
Important here is that the surrender must be spontaneous

 PLEA OF GUILT – that the offender spontaneously confess his guilt and
that the confession was made in an open court. The extra judicial
confession (EJC) made by the person is NOT A VOLUNTARY CONFESSION,
because it is made outside the court.

 What do you do if you have EJC? You manifest for the record that the
extra judicial confession (so that the confession was made prior to the
presentation of evidence)

8. PHYSICAL DEFECTS: DEAF & DUMB, BLIND OR OTHERWISE SUFFERING

FROM PHYSICAL DEFECT

o Can it just be any physical defects? It must be a physical defect that affects
the commission of the offense.
o Physical defect referred here is such being an armless, a cripple of a stutterer
whereby his means to act or defend himself or communicate with his fellow
beings are limited
o That physical defect must have a direct correlation to the commission of the
crime.

9. ILLNESS THAT DIMINISH THE EXERCISE OF WILL POWER WITHOUT

DEPRIVING THE CONSCIOUSNESS OF HIS ACTS

o Elements:
 That the illness of the offender must DIMINISH the exercise of will power
 That such illness should not deprive the offender of consciousness of his
act

o If you LOST the exercise of will power, it is already an EXEMPTING

CIRCUMSTANCE (lost is different from diminish)

10. ANALOGOUS CIRCUMSTANCES FOUND IN RPC

o Article 513 – the act of the offender of leading the law enforcers to the place
where he buried the instrument of the crime has been considered as
equivalent to voluntary surrender
o Stealing by a person who was driven to do out of extreme poverty is an
analogous of complete state of necessity
o Over 60 years old with failing eyesight, similar to over 70 year old
o Voluntary restitution if you return the goods
o Testifying for the prosecution