When the assault is not continuous, or the attack is divisible into two or more stages, or interrupted,

it is sufficient that treachery was present at the time of the mortal blow was inflicted.

 Supposing, there was a heated argument between the offender and the offended before they attacked each other, can the aggravating circumstance of treachery be appreciated? NO, either or both parties should have been prepared

 Supposing, there was a warning from the offender, then after a few minutes he attacked the victim, can the aggravating circumstance of treachery be appreciated? NO, because there was a chance to defend himself and pose a risk to the offender

 Supposing, your enemy was sleeping, you tapped him, then you shot him as soon as he awakened, can the aggravating circumstance of treachery be appreciated? YES

 Supposing, the victim’s hands and feet were tied, then mortal wounds were inflicted on the victim, can the aggravating circumstance of treachery be appreciated? YES

 Supposing, the offender buried half of the victim’s body, then he hacked the victim to death, can the aggravating circumstance of treachery be appreciated? YES

 Supposing, the accused shot the victim who was tied to a coconut tree, can the aggravating circumstance of treachery be appreciated? YES

 Supposing, there was a dispute over a parking space, then the accused shot the victim, can the aggravating circumstance of treachery be appreciated? NO

 Supposing, the victim suffered frontal mortal wounds, immediately, can the aggravating

circumstance of treachery not be appreciated? NO, because having frontal wounds is NOT conclusive that there was no treachery

 Supposing, the victim suffered mortal wounds at the back, immediately, can the aggravating circumstance of treachery be appreciated? NO

Note: The location of the wounds does not give rise to the presumption of the presence of treachery

 Supposing, the victim hid behind a drum where he could not be seen by the offender, the offender, knowing that the victim was hiding behind the drum shot at the drum; the bullet penetrated the drum and hit the victim which caused his death, can the aggravating circumstance of treachery be appreciated? YES, because the victim was not in a position to defend himself

 Supposing, there was an agreement to fight

Treachery cannot be presumed; must be proved by clear and convincing evidence

In treachery, it is not necessary that the person intended to be killed was not the one actually killed

 According to Prof. Amurao, treachery is a politician and a “buwaya”, because it takes everything; because treachery absorbs all other aggravating circumstances

Additional notes from Prof. Amurao:

- If the offender was under the influence of drugs in the crime of murder or homicide, this can be considered a qualifying aggravating circumstance, even in the absence of treachery (pursuant to RA 9165)

- the use of an unlicensed firearm = a special aggravating circumstance for the crime of murder or homicide; before it was separately prosecuted, but now unlawful possession is only a special aggravating circumstance that can increase the penalty to the maximum; no separate prosecution

Article 14(17) – Ignominy

- that means be employed or circumstances brought about which add ignominy to the natural effects of the act

- a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME

Ignominy – a circumstance pertaining to the moral order which adds disgrace and obloquy to the

material injury caused by the crime

 Applicable to crimes against chastity, less serious physical injuries, light or grave coercion and murder

Effect of ignominy: the crime becomes more humiliating or to put the offended party to shame

 Supposing, a woman was raped in the presence of her husband and children, can the aggravating circumstance of ignominy be appreciated? YES

 Supposing, a woman was raped while cogon grass was wrapped around the penis of the offender, can the aggravating circumstance of ignominy be appreciated? Prof. Amurao thinks that this scenario falls under the aggravating circumstance of cruelty

Basis for aggravation: means employed

IGNOMINY

Art, 18 and 19- PD 532, accomplices in PD 532

Art. 19 accessories- Anti-fencing law PD 1829 (Obstruction of Justice) Art. 29 Preventive Imp and crediting

Victim all wounds frontal

Treachery cannot be appreciated? No. Mere presence of frontal wound is not conclusive that no

treachery was employed neither will presence of back wounds be conclusive that treachery was present. Absent any proof as to how wound was inflicted.

Victim has just awaken, still drowsy when attacked. Treachery? Yes. Question Hour: Amurao Speaking.

When there are 2 qualifying, one will suffice to change the nature of the crime. What will happen to the other qualifying? The other will be considered as generic aggravating circumstance- penalty to the maximum. (Except treachery, because treachery will absorb them)

N.B. Other qualifying circ. Not in art 248 (murder) e.g. craft, fraud, or disguise. They are means of treachery, absorbed in treachery in Art. 248.)

Article 14(18) – Unlawful Entry

- that the crime be committed after an unlawful entry

- a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME

Unlawful Entry – an entrance is effected by a way not intended for Purpose – to effect entrance not for escape

 Supposing, the window was used to gain entry into the house, can the aggravating circumstance of unlawful entry be appreciated? YES

 Supposing, the owners of the house commonly use the window as their ordinary means to enter the house, then the accused entered the door, can the aggravating circumstance of unlawful entry be appreciated? YES

 Unlawful entry is inherent (thus cannot be appreciated as an aggravating circumstance) in the following crimes:

- robbery with force upon things

- violation of domicile (committed by public persons) - trespass to dwelling (committed by private individuals) Basis for aggravation: means and ways employed

Article 14(19) – Breaking Wall

- that as a means to the commission of a crime, a wall, roof, floor, door or window be broken

- a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME

To effect entrance only

 Supposing, the accused intended to kill his next-door neighbor by breaking the wall separating them, then he shot the neighbor, can the aggravating circumstance of breaking wall be appreciated? YES

Breaking wall is inherent in robbery with force upon things

Basis for aggravation: means and ways employed

Article 14(20) – Aid of Minor or by Means of Motor Vehicles

- that the crimes be committed (1) with the aid of persons under 15 years of age or (2) by means of motor vehicles, airships or other similar means

- this paragraph contemplates TWO aggravating circumstances

Aid of Minor

- a generic aggravating circumstance = can be offset by an ordinary mitigating circumstance - involves the taking advantage of the child’s immaturity or innocence

Use of Motor Vehicles

- a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME

- the offender should deliberately seek for the use of the vehicle

- the use of the motor vehicle must be the means used to commit the crime - should facilitate the commission of the crime

 Supposing, the accused robbed a house then found a car in front of the house which he used for his escape, can the aggravating circumstance of use of motor vehicle be appreciated? NO, because the crime was already accomplished

 Supposing, the accused robbed the passengers in a bus, can the aggravating circumstance of use of motor vehicle be appreciated? YES, even if it is a public vehicle, the circumstance can be appreciated  Supposing, a taxicab was hired, then an argument ensued inside where the accused killed the victim,

can the aggravating circumstance of use of motor vehicle be appreciated? NO, because the motor vehicle was just incidental to the crime

 Are motorized bikes considered? YES

 What if it is a motorized bike but the motor is not used? YES

 Are road-rollers or “pison” considered? NO, because it is not motorized as contemplated by the LTO

Use of motor vehicles is inherent in the crime of carnapping

Article 14(21) – Cruelty

- that the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission

- a qualifying aggravating circumstance = cannot be offset by a mitigating; CHANGES THE NATURE OF THE CRIME

Cruelty – when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing

the victim unnecessary physical pain in the consummation of the criminal act

Requisites: