• Definition – Those circumstance which raise the penalty for a crime without exceeding the maximum applicable to that crime.
• Basis: The greater perversity of the offense as shown by: a) the motivating power behind the act
b) the place where the act was committed c) the means and ways used
d) the time
e) the personal circumstance of the offender f) the personal circumstance of the victim • Kinds:
a) Generic – generally applicable to all crimes
b) Specific – apply only to specific crimes (ignominy – for chastity crimes; treachery – for persons crimes)
c) Qualifying – those that change the nature of the crime (evident premeditation – becomes murder)
d) Inherent – necessarily accompanies the commission of the crime; it is an ele ment of the crime committed (evident premeditation in theft, estafa)
QUALIFYING AGGRAVATING CIRCUMSTANCE
GENERIC AGGRAVATING CIRCUMSTANCE
Gives the proper and exclusive name, places the author thereof in such a situation as to deserve no other penalty than that specifically prescribed by law
Increase penalty to the maximum, without exceeding limit prescribed by law
Can’t be offset by Mitigating Circumstance May be compensated by Mitigating Circumstance
Must be alleged in the information. Integral part of the offense
Need not be alleged. May be proved over the objection of the defense. Qualifying if not alleged will make it generic
• Aggravating Circumstances which DO NOT have the effect of increasing the penalty:
1) which themselves constitute a crime specifically punishable by law or which are included in the law defining a crime and prescribing the penalty thereof
Example: breaking a window to get inside the house and rob it
2) aggravating circumstance inherent in the crime to such degree that it must of necessity accompany the commission thereof
Example: evident premeditation inherent in theft, robbery, estafa, adultery and concubinage
• Aggravating circumstances are not presumed. Must be proved as fully as the crime itself in order to increase the penalty.
Art 14. Aggravating circumstances. — The following are aggravating circumstances:
1. That advantage be taken by the offender of his PUBLIC POSITION
• Requisite:
a. The offender is a public officer
b. The commission of the crime would not have been possible without the powers, resources and influence of the office he holds.
* A public officer is any person who, by (1) direct provision of the law, (2) popular election or (3) appointment by competent authority shall take part in the performance of public functions in the Government of the Philippine Islands or shall perform in said Government or in any of its branches, public duties as an employee, agent or subordinate official of any rank or class.
• Essential - Public officer used the influence, prestige or ascendancy which his office gives him as the means by which he realized his purpose.
* If the accused could have perpetrated the crime without occupying his position, then there is no abuse of public position.
* When the public position is an element of the offense like Bribery (Direct – Article 210, Indirect – 211, or Qualified Bribery – Sec. 4, R.A. 7659), this circumstance can not be taken into consideration.
• Wearing of uniform is immaterial – what matters is the proof that he indeed took advantage of his position
Taking advantage of public position
Article 62 was also amended by the Republic Act No. 7659. The legal import of this amendment is that the subject circumstance has been made a qualifying or special aggravating that shall not be offset or compensated by a mitigating circumstance. If not alleged in the information, however, but proven during the trial, it is only appreciated as a generic aggravating circumstance.
* Under Sec. 23, 1 (a) of R.A. 7659, when in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances.
2. That the crime be committed IN CONTEMPT OF OR WITH INSULT TO THE
PUBLIC AUTHORITIES
• Requisites:
a. The offender knows that a public authority is present
b. The public authority is engaged in the exercise of his functions c. The public authority is not the victim of the crime
d. The public authority’s presence did not prevent the criminal act
• Example: Juan and Pedro are quarrelling and the municipal mayor, upon passing by, attempts to stop them. Notwithstanding the intervention and the presence of the mayor, Juan and Pedro continue to quarrel until Juan succeeds in killing Pedro.
• Person in authority – public authority who is directly vested with jurisdiction, has the power
to govern and execute the laws • Examples of Persons in Authority
a. Governor b. Mayor c. Barangay captain d. Councilors e. Government agents f. Chief of Police
• Rule not applicable when committed in the presence of a mere agent.
• Agent – subordinate public officer charged with the maintenance of public order and protection and security of life and property
Example: barrio vice lieutenant, barrio councilman
3. That the act be committed:
(1) with insult or in disregard of the respect due to the offended party on account
of his (A) RANK, (B) AGE, (C) SEX or
• circumstances (rank, age, sex) may be taken into account only in crimes against persons or honor, it cannot be invoked in crimes against property
• Rank – refers to a high social position or standing by which to determine one’s pay and emoluments in any scale of comparison within a position
• Age – the circumstance of lack of respect due to age applies in case where the victim is of tender age as well as of old age (age of the offended party)
• Sex – refers to the female sex, not to the male sex; not applicable when
a. The offender acted w/ PASSION
AND OBFUSCATION
b. there exists a relation between the
offender and the victim (but in cases of divorce decrees where there is a direct bearing on their child, it is applicable)
c. the condition of being a woman is
indispensable in the commission of the crime (Ex. Parricide, rape, abduction) • Requisite of disregard to rank, age, or sex
a. Crimes must be against the victim’s person or his honor
b. There is deliberate intent to offend or insult the respect due to the victim’s rank, age, or sex
NOTE: While nighttime is absorbed in treachery, the aggravating circumstance of disregard of sex and age cannot be similarly absorbed, as Treachery refers to the manner of the commission of the crime, while the latter pertains to the relationship of the victim with the offender.(Pp vs. Lapaz, 171 SCRA 539)