in the commission of an offense, it
shall be deemed to have been
committed by a BAND.
Requisites:
a. Facilitated the commission of the crime b. Deliberately sought
c. Taken advantage of for the purposes of impunity
d. There must be four or more armed men
If one of the four-armed malefactors is a principal by inducement, they do not form a band because it is undoubtedly connoted that he had no direct participation,
* Where more than three armed malefactors participated in the commission of the offense, if the aggrupation did not facilitate the commission of the crime, it will not be considered as aggravating because of the language of the law which requires that such circumstance must have facilitated the commission of the offense.
* When the two (2) groups are almost similarly armed, like where the group of the offended party numbered five (5) but only three (3) were armed so that there is no band, while the offenders were four (4) who were all armed and therefore constituted a band, there is no band as aggravating circumstance as it did not facilitate the commission of the crime. Likewise, if the meeting is casual, the homicide committed by the killers comprising a band is not aggravated.
Arms is not limited to firearms, sticks and stones included
Band is inherent in robbery committed in band and brigandage
* Correlate this with Article 306 - Brigandage. The crime is the band itself. The mere forming of a band even without the commission of a crime is already a crime so that band is not aggravating in brigandage because the band itself is the way to commit brigandage. However, where brigandage is actually committed, band becomes aggravating.
It is not considered in the crime of rape
It has been applied in treason and in robbery with homicide
7. That the crime be committed on
the occasion of a conflagration,
shipwreck, earthquake, epidemic or
other CALAMITY OR MISFORTUNE
Requisites:a. Committed when there is a calamity or misfortune
By Rene Callanta Page 53 1. Conflagration
2. Shipwreck 3. Epidemic
b. Offender took advantage of the state of confusion or chaotic condition from such misfortune
Basis: Commission of the crime adds to the suffering by taking advantage of the misfortune.
based on time
offender must take advantage of the calamity or misfortune
Distinction between Paragraphs 7 and 12 of Article 14
Committed
during a
calamity or
misfortune
Committed with the
use of wasteful means Crime is committed DURING any of the calamities Crime is committed BY using fire, inundation, explosion or other wasteful means
8. That the crime be committed with
the AID OF (1) ARMED MEN OR (2)
PERSONS WHO INSURE OR AFFORD
IMPUNITY
based on the means and ways of committing the crime
Requisites:
a. that armed men or persons took part in the commission of the crime, directly or indirectly
b. that the accused availed himself of their aid or relied upon them when the crime was committed
* If the accused relied on the presence of armed men, availing himself of the aid of the latter, his liability is aggravated. However, where it appeared that appellants were not merely present at the scene of the crime but were in conspiracy with the assailant, shooting the victim and leaving the scene together after apparently accomplishing their purpose clearly evincing conspiracy, this circumstance cannot be appreciated. (Pp vs. Umbrero, 196 SCRA 821)
* There must be no unity of purpose between the offender and the armed men present in the commission of the crime. The existence of conspiracy will make the armed men liable as principals by direct participation.
Exceptions:
a. when both the attacking party and the party attacked were equally armed
b. not present 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.
c. Casual presence, or when the offender did not avail himself of any of their aid nor did not knowingly count upon their assistance in the commission of the crime
WITH THE AID OF ARMED MEN
BY A BAND Present even if one
of the offenders merely relied on their aid. Actual aid is not necessary
Requires more than 3 armed malefactors who all acted together in the commission of an offense
if there are more than 3 armed men, aid of armed men is absorbed in the employment of a band.
* If the accused, upom assurance of policemen A and B that they would not patrol the area so that he could theft or robbery thereat, the commission of burglary in the said area where no routine patrolling was done is aggravated by the aid of persons who insure or afford impunity.
9. That the accused is a RECIDIVIST
Recidivist – one who at the time of histrial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC
* It is important that the conviction which came earlier must refer to the crime committed earlier than the subsequent conviction.
Basis: Greater perversity of the offender as shown by his inclination to commit crimes
By Rene Callanta Page 54 Requisites:
a. offender is on trial for an offense b. he was previously convicted by final
judgment of another crime
c. that both the first and the second offenses are embraced in the same title of the RPC (not special law) d. the offender is convicted of the new
offense
What is controlling is the time of the trial,
not the time of the commission of the offense. At the time of the trial means
from the arraignment until after sentence is announced by the judge in open court.
When does judgment become final? (Rules of Court)
a. after the lapse of a period for perfecting an appeal
b. when the sentence has been partially or totally satisfied or served c. defendant has expressly waived in
writing his right to appeal
d. the accused has applied for probation
Example of Crimes embraced in the
Same title of the RPC
a. robbery and theft – title 10
b. homicide and physical injuries – title 8
* In recidivism, the crimes committed should be felonies. Recidivism cannot be had if the crime committed is a violation of a special law.
Q: The accused was prosecuted and tried for theft, robbery and estafa. Judgments were read on the same day. Is he a recidivist?
A: No. Because the judgment in any of the first two offenses was not yet final when he was tried for the third offense
Recidivism must be taken into account no matter how many years have intervened between the first and second felonies
Pardon does not obliterate the fact that the accused was a recidivist, but
amnesty extinguishes the penalty and its
effects
* If the offender has already served his sentence and he was extended an absolute pardon, the pardon shall erase the conviction including recidivism because there is no more penalty so it shall be understood as referring to the conviction or the effects of the crime.
To prove recidivism, it must be alleged in the information and with attached certified copies of the sentences rendered against the accused
Exceptions: if the accused does not object and when he admits in his confession and on the witness stand
10. That the offender has been
previously punished for an offense to
which the law attaches an equal or
greater penalty or for two or more
crimes to which it attaches a lighter
penalty
REITERACION OR HABITUALITY
–it is essential that the offender be previously punished; that is, he has served sentence.
Par. 10 speaks of penalty attached to
the offense, not the penalty actually
imposed
* in reiteracion, the penalty attached to the crime subsequently committed should be higher or at least equal to the penalty that he has already served. If that is the situation, that means that the offender was never reformed by the fact that he already served the penalty imposed on him on the first conviction. However, if he commits a felony carrying a lighter penalty; subsequently, the law considers that somehow he has been reformed but if he, again commits another felony which carries a lighter penalty, then he becomes a repeater because that means he has not yet reformed.
* You will only consider the penalty in reiteracion if there is already a second conviction. When there is a third conviction, you disregard whatever penalty for the subsequent crimes committed. Even if the penalty for the subsequent crimes committed are lighter than the ones already served, since there are already
By Rene Callanta Page 55 two of them subsequently, the offender is
already a repeater.
* However, if there is only a second conviction, pay attention to the penalty attached to the crime which was committed for the second crime. That is why it is said that reiteracion is not always aggravating. This is so because if the penalty attached to the felony subsequently committed is not equal or higher than the penalty already served, even if literally, the offender is a repeater, repetition is not aggravating.
REITERACION RECIDIVISM Necessary that
offender shall have served out his sentence for the first sentence
Enough that final judgment has been rendered in the first offense
Previous and
subsequent offenses must not be embraced in the same title of the Code Same title Not always an aggravating circumstance Always aggravating
* Thus, if A has been convicted of Murder, and after grant of parole committed Homicide, he labors under this paragraph (10) known as reiteracion, but he is also suffering from recidivism (recidencia). In such a case, he will be considered only as recidivist, and par. 10 will no longer apply to him.
4 FORMS OF REPETITION a. Recidivism – generic
b. Reiteracion or Habituality – generic c. Multiple recidivism or Habitual
delinquency – extraordinary
aggravating
d. Quasi-Recidivism – special aggravating