You do not lower it by one degree. The rule is you will impose the penalty in the minimum. Not by one degree.
Are all the elements of dolo present in mitigating circumstance? Yes, all are present. That’s why the offender is criminally liable. But there is a diminution of intelligence, intent, and freedom.
What are the different mitigating circumstances? See Art. 13.
What is the difference between a person more than 15 but less than 18 acting with discernment and one who is over 70 years of age?
More than 15 but less than 18 with discernment is considered a privileged mitigating. Over 70 years of age is merely an ordinary mitigating circumstance.
What are incomplete justifying circumstances?
Under pars. 4-7 of Article 11, can there be an incomplete justifying circumstance? There is none. The incomplete justifying circumstances lie only under pars. 1-3 of Article 11.
When is there an incomplete justifying circumstance?
When there is unlawful aggression on the part of the victim but the other two requisites are absent. What if there is no unlawful aggression but the second and third requisites are present?
There is no incomplete justifying circumstance. There must always be unlawful aggression.
Read People v. Narvaez, G.R. No. on Defense of Property. In this case, there was unlawful aggression. The unlawful aggression was on the property. However, means used was not reasonable. Narvaez shot the unlawful aggressors with a shotgun. That was not nice.
People v. Narvaez provides in part:
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing must invoke the aid of the competent court, if the holder should refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court (Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's house, nor to close his accessibility to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's property, therefore, amounts to unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the part of appellant who was defending his property. As a matter of fact, there was no provocation at all on his part, since he was asleep at first and was only awakened by the noise produced by the victims and their laborers. His plea for the deceased and their men to stop and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification are present. He should therefore be held responsible for the death of his victims, but he could be credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.
Is there an incomplete exempting circumstance? No such thing.
What is the difference between incomplete self defense where:
The first and second elements are present, the third is absent? Here, is incomplete self defense. There will be a privileged mitigating circumstance in this case under Art. 69 because a majority of the elements for justification is present. The penalty will be lowered by two degrees because there are two elements present.
The first is present, the second and third is absent? Here, there is also an incomplete self defense. There will also be a privileged mitigating circumstance in this case under Art. 69 unlawful aggression is present. However, the penalty will only be lowered by one degree because only unlawful aggression is present.
What is the difference between a privileged mitigating and an ordinary mitigating circumstance?
A privileged mitigating circumstance cannot be offset by an aggravating circumstance. An ordinary mitigating circumstance can be offset by an aggravating circumstance.
If the penalty is indivisible (reclusion perpetua or death), a privileged mitigating circumstance will still be applied. It will lower the penalty by one or two degrees. If the penalty is indivisible, ordinary mitigating circumstances will not be appreciated. Ordinary mitigating, as a general rule, only lowers the penalty to its minimum but not by degree.
When do we apply par. 3 of Article 13? Lack of intention to commit so grave a wrong.
It applies only to intentional crimes; when the liability falls under par. 1 of Art. 4. You are committing a felony although the wrongful act be different from that which he intended to commit.
Is there a difference between immediate vindication and passion or obfuscation?
When are you entitled to par. 5? Immediate vindication. When the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same degrees. What is a grave offense? A crime committed against the person or honor of an individual. It is not necessarily a serious offense.
If one commits a crime of rape against a daughter and the father kills the rapist, what mitigating circumstance can be appreciated?
What do you mean by immediate? It means immediate vindication of the honor of your family. You do not act with revenge. Revenge is an aggravating circumstance. It may fall under evident premeditation.
Can you appreciate both mitigating circumstances in one case? Yes. Like in People v. Genosa. This is an exceptional case. What is passion or obfuscation?
The emotions are too high and too powerful that a person cannot control his acts. Read People v. Francisco Abarca, G.R. No. 74433, September 14, 1987.
People v. Francisco Abarca provides, in part:
We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused- appellant of murder, therefore erred.
Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage.
We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned.
What do you mean by sufficient provocation? Sufficient provocation immediately preceded the act. Why did the person commit a crime in par. 6?
There is a difference between pars. 5 and 6 on one hand and par. 4. Where do they differ? In pars. 4, 5 and 6, there is diminution of voluntariness.
In par. 4, there is physical suffering. In pars. 5 and 6, there is moral suffering. Physical suffering goes away more easily. Moral suffering lingers more.
Can you still put up sufficient provocation even if there is a lapse of time between the commission of the crime? No, because par. 4 states that sufficient provocation or threat on the part of the offended party immediately preceded the act.
But in pars. 5 and 6, there is also the word immediate. What does that mean? Does 5 and 6 allow an interval of time to lapse? Yes. 5 and 6 allows an interval of time to lapse between the commission of the grave offense and the commission of the crime. This is not allowed under par. 4. The reason is that in pars. 5 and 6, the pain is moral. Moral pain or suffering lasts longer than physical pain. If you allow a sufficient interval of time in par. 4, the act now becomes revenge. Revenge is not mitigating; it is even aggravating as it is tantamount to evident premeditation.
How many mitigating circumstances are there in par. 7? There are two: voluntary surrender and voluntary plea of guilt. When is there voluntary surrender?
A crime was committed by Mr. A. So he is now a suspect. If he is now arrested by police officers and, upon such arrest, he says that he now surrenders. Is he entitled to the privileged mitigating circumstance of voluntary surrender?
A crime is committed but no case was yet filed in court. You are the suspect and you are already positively identified by witnesses. Then, the policemen looked for you. Then you go to the police station and voluntary surrender yourself. Is that voluntary surrender even if a case is filed later on? Yes, because a case has not been filed against him yet.
But supposing the parents told him to surrender. And he followed his parents and went to the police station to surrender. Is that voluntary surrender?
Is there a difference if a public official was the one who told him to surrender?
If it were a public official who persuaded the suspect to surrender, it would not be voluntary surrender. If it were the father telling his son to surrender, it would be voluntary surrender.
In one Supreme Court decision, a person surrendered voluntarily. Then during the trial, he said that he did not commit the crime. But he proved that he surrendered voluntarily before the filing of the case. If convicted, would you appreciate voluntary surrender? No. The voluntary surrender must be coupled by an admission or an acceptance of guilt. Upon surrender, he has to admit to the commission of the act, even if not to the crime. However, during trial, he may put up self-defense.
If there has already been a warrant issued by the court, is there voluntary surrender?
It depends. If the policemen already started serving the warrant, then you surrender after that, there is no longer voluntary surrender. But if the authorities have not yet started serving the warrant and you voluntarily surrendered, you will be entitled to a mitigating circumstance.
The voluntary surrender must be coupled by an admission of the act, not necessarily guilt. Because if what is admitted is the guilt or the commission of the crime, it will fall on plea of guilty.
When must plea of guilty be made?
It must be made prior to the presentation of evidence for the prosecution.
What if he pleaded not guilty during arraignment, but he pleaded guilty during the pre-trial? There was a withdrawal of the plea of guilty so there was re-arraignment. Then, he pleaded guilty. Is he entitled to the mitigating circumstance of plea of guilty? Yes, because the prosecution has not yet started presenting its evidence.
What if there had been arraignment, plea of not guilty, pre-trial, and trial. During the trial and before the presentation of evidence for the prosecution, accused stands up, withdraws his plea and gives a plea of guilty, is he entitled to the mitigating circumstance of plea of guilty?
Yes, because the prosecution has not yet started presenting its evidence.
If a witness is presented in a crime of murder, but that witness is not an eye witness. It was the wife of the victim who testified as to the civil liability of the accused. No evidence was yet presented as to the criminal liability of the accused. Then the accused withdraws his plea of guilty and substitutes it with a plea of guilty. Is the accused entitled to the mitigating circumstance of plea of guilty?
No, because the prosecution has already started presenting its evidence. The law does not distinguish between presentation of evidence for the criminal liability and presentation of evidence for the civil liability.
What about the mitigating circumstance of physical defect? When are you entitled to it?
If the physical defect will not affect the commission of the crime, you will not be entitled to this mitigating circumstance. Example: You lack two hands. The crime committed was oral defamation. Your physical defect will not entitle you to a mitigating circumstance.
Supposing a rapist only had one hand and one foot, will he be entitled to a mitigating circumstance? It depends on the manner of committing the crime of rape. If the rape was committed when the victim was unconscious, no mitigating circumstance. If the rape was done through force and intimidation, there will be a mitigating circumstance of physical defect.
You have to relate the defect and the manner of committing the crime. What about par. 9? Partial deprivation of intelligence.
What about par. 10? Analogous circumstances.
Extreme poverty can be a mitigating circumstance in the crime of theft.
Jealousy? Yes, if the emotion is so powerful and there is no sufficient lapse of time. It may be analogous to passion or obfuscation. In this case, however, it must be based on lawful sentiments. It should not be based on hearsay.
Cleptomaniac? Debatable.
Sleep walkers? Exempt, according to the Supreme Court, because there is a complete absence of intelligence. The problem is that there is no “analogous circumstances” provision in Art. 12.
Session 7: AGGRAVATING CIRCUMSTANCES What are the different kinds of aggravating circumstances?
What are qualifying aggravating circumstances?
Qualifying aggravating circumstances change the nature of the crime. It brings a crime to a higher penalty. Like Homicide, with treachery. It becomes Murder. The treachery qualifies homicide to murder. It changes the nature of homicide. Treachery becomes an essential element of murder; part and parcel thereof. Treachery which has been an essential element of murder, cannot be offset by mitigating circumstances.
What are inherent aggravating circumstances?
It is an essential element of the crime. It is part and parcel of a crime. It does not bring the crime to a higher level. If you remove that aggravating circumstance, the crime is not committed.
One example is dwelling in trespass to dwelling. If you remove the dwelling, then there is no more crime.
What are generic aggravating circumstances? Those that are common to all crimes.
What is the effect of an aggravating circumstance?
It will increase the penalty but in no case exceed the maximum. However, this only applies to ordinary aggravating circumstances. It does not apply to qualifying circumstances.
What are special aggravating circumstances?
Those not found under Art. 14 but are considered as aggravating circumstances because a special law provides for its application. A special aggravating circumstance cannot be offset by a generic aggravating circumstance.
Examples:
Illegal Possession of Firearms, RA 8293, Sec. 1 States: “If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.”
Dangerous Drugs Law, RA 9165, Sec. 25 states: “Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable.”
What are the different aggravating circumstances? See Art. 14. What is the aggravating circumstance under par. 1?
Taking advantage of public position.
If a public official commits a crime, will that be considered taking advantage of public position?
Not necessarily. Advantage must be taken of the public position. If a public official’s position is an element of a crime or inherent in the crime, then there is no taking advantage of public position. Like those found in articles 204-245 of the RPC: malversation, technical malversation, direct bribery, etc. All of these crimes are committed by public officers in the discharge of their duties.
When does public position become an aggravating circumstance?
When it is not taken as an element of a crime or is not inherent in the crime.
There are also crimes where taking advantage of public position is an element of the crime although not found in 204-245 of the RPC. An example is persuading a public official to commit a crime which is punishable under the Anti-Graft and Corrupt Practices Act, par. A, Sec. 3.
An example is a policeman. The duty of a policeman is to protect the community. If he is the first one to kill or rob, his being a policeman is aggravating. Being public officer is not inherent in the crime of homicide or robbery. The policeman will be liable for homicide or robbery, with the aggravating circumstance of taking advantage of public position. It is considered as aggravating when the policeman performs an act not in the discharge of his duties but probably in relation to his duties. Those