Any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause.
LAWFUL CAUSE – the law itself provides for an excuse. E.g. omission to give help to person in danger when it would also cause danger to himself; a priest cannot be compelled to reveal what has been confessed to him (privileged communication)
INSUPERABLE CAUSE – some motive, which has morally, legally or physically prevented a person to do what the law commands; circumstances of time place, occasion that cannot be overcome. E.g. no available transportation – officer not liable for arbitrary detention; mother who was overcome by severe dizziness and extreme debility, leaving child to die – not liable for infanticide. (Pp. vs. Bandian, 63 P 530) Elements:
1. An act is required by law to be done. 2. Person fails to perform such act.
3. His failure to perform such act was due to some lawful or insuperable cause.
Examples:
a. The municipal president detained the offended party for three days because to take him to the nearest justice of the peace required a journey for three days by boat as there was no other means of transportation. (US vs. Vicentillo, 19 Phil. 118)
The distance which required a journey for three days was considered an insuperable cause. Note: Under the law, the person arrested must be delivered to the nearest judicial authority at most within 18 hours (now 36 hours, Art. 125 RPC); otherwise, the public officer will be liable for arbitrary detention.
b. A mother who at the time of childbirth was overcome by severe dizziness and extreme debility, and left the child in a thicket were said child died, is not liable for infanticide because it was physically impossible for her to take home the child. (People vs. Bandian, 63 Phil. 530).
The severe dizziness and extreme debility of the woman constitute an insuperable cause. ABSOLUTORY CAUSES - that which has the effect of absolving the offender from criminal liability, although not from civil liability. They are those where the act
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committed is a crime but for reasons of public policyand sentiment there is no penalty imposed. It has the same effect as exempting circumstances.
a. They are based on public policy. b. Examples of those in the RPC include:
Spontaneous Desistance During Attempted Stage (Art 6, RPC)
Light Felony is only attempted or frustrated, and is not against persons or property. (Art 7) Death/Physical Injuries Under Exceptional Circumstances (Art 247)
The accessory is a relative of the principal (Art 20)
Legal grounds for arbitrary detention (Art 124) Marriage of the offender with the offended party when the crime is rape, abduction, seduction, or acts of lasciviousness. ( Article 344)
Legal grounds for trespass. Person entering another‘s dwelling for the purpose of preventing some serious harm to himself , the occupants of the dwelling or third person. (Art 280 par 3)
Under Article 219, discovering secrets through seizure of correspondence of the ward by their guardian is not penalized.
Under Article 332, in the case of theft, swindling and malicious mischief, there is no criminal liability but only civil liability, when the offender and the offended party are related as spouse, ascendant, descendant, brother, sister, brother-in-law and sister-in-law if living together or where in case the widowed spouse and the property involved is that of the deceased spouse, before such property had passed on to the possession of third parties. Under Article 344, in cases of seduction, abduction, acts of lasciviousness, and rape, the marriage of the offended party shall extinguish the criminal action.
c. Examples which are recognized and developed by jurisprudence include:
In case of SOMNAMBULISM or one who acts while sleeping, the person involved is definitely acting without freedom and without sufficient intelligence, because he is asleep. He is moving like a robot, unaware of what he is
doing. So the element of voluntariness which is necessary in dolo and culpa is not present. Mistake Of Fact
Set-Up – when an innocent person is intentionally placed by a law enforcer in a situation where it is made to appear that said person committed the crime. The person never committed the imputed crime.
Frame-Up – there is a crime committed by a 3rd person not by the innocent accused. The
charge is false and the accused never committed the crime. It usually happens when the police plant, alter, destroy or suppress evidence to implicate innocent person as the author of the crime.
Instigation – is an instance where a law
enforcer induced a person to commit a crime and later arrest him in flagranti. There is no commission of the crime were it not for the instigation.
Instigation is associated with criminal intent. Do not consider culpa in connection with instigation. If the crime is culpable, do not talk of instigation. In instigation, the crime is committed with dolo. It is confused with entrapment.
If the one who instigated is a private person, not performing a public function, both he and the one induced are criminally liable.
Elements of Instigation
1. Act of persuasion, trickery or fraud carried out by law enforcers to instigate the accused to commit the crime.
2. The origin of criminal design is in the mind of the law enforcer not the innocent accused. Crime is a product of creative activity of the law enforcer.
Test to Determine Instigation
1. Subjective Test – the focus is on the accused whether there was predisposition to commit the crime. What is considered is his mental state at the time of inducement.
2. Objective Test – the focus is on the conduct of the accused
Entrapment is not an absolutory cause.
Entrapment does not exempt the offender or mitigate his criminal liability. But instigation absolves the offender from criminal liability because in instigation, the offender simply acts as a tool of the law enforcers and, therefore, he is acting without criminal intent because
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without the instigation, he would not havedone the criminal act which he did upon instigation of the law enforcers.
Difference between instigation and entrapment
1. In instigation, the criminal plan or design exists in the mind of the law enforcer with whom the person instigated cooperated so it is said that the person instigated is acting only as a mere instrument or tool of the law enforcer in the performance of his duties. On the other hand, in entrapment, a criminal design is already in the mind of the person entrapped. It did not emanate from the mind of the law enforcer entrapping him. Entrapment involves only ways and means which are laid down or resorted to facilitate the apprehension of the culprit.
2. Instigation absolves the person instigated from criminal liability. This is based on the rule that a person cannot be a criminal if his mind is not criminal. A sound public policy requires that the courts shall condemn the practice of instigation by directing the acquittal of the accused. On the other hand, entrapment is not an absolutory cause. It is not even mitigating.
Forms of Entrapment
Sting Operation or buy-bust operation where for instance in drug cases, the law enforcer pretends to be the buyer and later apprehend the seller of drugs.
Illustrations:
An agent of the narcotics command had been tipped off that a certain house is being used as an opium den by prominent members of the society. The law enforcers cannot themselves penetrate the house because they do not belong to that circle so what they did was to convince a prominent member of society to visit such house to find out what is really happening inside and that so many cars were congregating there. The law enforcers told the undercover man that if he is offered a cigarette, then he should try it to find out whether it is loaded with dangerous drugs or not. This fellow went to the place and mingled there. The time came when he was offered a stick of cigarette and he tried it to see if the cigarette would affect him. Unfortunately, the raid was conducted and he was among those prosecuted for violation of the Dangerous Drugs Act. Is he criminally liable? No. He was only there upon instigation of the law enforcers. On his own, he would not be there.
The reason he is there is because he cooperated with the law enforcers. There is absence of criminal intent.
If the law enforcer were able to enter the house and mingle there, nobody would offer him a cigarette because he is unknown. When he saw somebody, he pleaded to spare him a smoke so this fellow handed to him the cigarette he was smoking and found out that it was loaded with a dangerous drug. He arrested the fellow. Defense was that he would not give a cigarette if he was not asked. Is he criminally liable? Yes. This is a case of entrapment and not instigation. Even if the law enforcer did not ask for a cigarette, the offender was already committing a crime. The law enforcer ascertained if it is a violation of the Dangerous Drugs Act. The means employed by the law enforcer did not make the accused commit a crime. Entrapment is not an absolutory cause because in entrapment, the offender is already committing a crime.
In another instance, a law enforcer pretended to be a buyer of marijuana. He approached a person suspected to be a pusher and prevailed upon this person to sell him two kilos of dried marijuana leaves and this fellow gave him and delivered them. He apprehended the fellow. Defense is instigation, because he would not have come out for the marijuana leaves if the law enforcer had not instigated him. It is a case of entrapment because the fellow is already committing the crime from the mere fact that he is possessing marijuana. Even without selling, there is a crime committed by him: illegal possession of dangerous drugs. How can one sell marijuana if he is not in possession thereof. The law enforcer is only ascertaining if this fellow is selling marijuana leaves, so this is entrapment, not instigation. Selling is not necessary to commit the crime, mere possession is already a crime.
A fellow wants to make money. He was approached by a law enforcer and was asked if he wanted to deliver a package to a certain person. When that fellow was delivering the package, he was apprehended. Is he criminally liable? This is a case of instigation; he is not committing a crime.
If the instigator is a law enforcer, the person instigated cannot be criminally liable, because it is the law enforcer who planted that criminal mind in him to commit the crime, without which he would not have been a criminal. If the instigator is not a law enforcer, both will be criminally liable, you cannot have a case of
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instigation. In instigation, the private citizenonly cooperates with the law enforcer to a point when the private citizen upon instigation of the law enforcer incriminates himself. It would be contrary to public policy to prosecute a citizen who only cooperated with the law enforcer. The private citizen believes that he is a law enforcer and that is why when the law enforcer tells him, he believes that it is a civil duty to cooperate.
If the person instigated does not know that the person is instigating him is a law enforcer or he knows him to be not a law enforcer, this is not a case of instigation. This is a case of inducement, both will be criminally liable. In entrapment, the person entrapped should not know that the person trying to entrap him was a law enforcer. The idea is incompatible with each other because in entrapment, the person entrapped is actually committing a crime. The officer who entrapped him only lays down ways and means to have evidence of the commission of the crime, but even without those ways and means, the person entrapped is actually engaged in a violation of the law.
If the one who made the instigation is a private person, he and the one induced are criminally liable for the crime committed: the former as principal by induction and the latter as principal by direct participation.
II. Modifying Circumstances - those which will either increase or decrease the penalty. They are called mitigating or aggravating circumstances.
Chapter 3
CIRCUMSTANCES WHICH MITIGATE CRIMINAL