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MEMORY AID IN

CRIMINAL LAW

BOOK ONE

CRIMINAL LAW

The branch or division of law which defines crimes, treats of their nature and provides for the punishment.

LIMITATIONS ON THE POWER OF

CONGRESS TO ENACT PENAL

LAWS

1. must not violate the equal protection clause of the Constitution.

2. must not partake the nature of an ―ex post facto law‖.

3. must not partake of the nature of a ―bill of attainder‖.

4. must not impose cruel and unusual punishment nor excessive fines.

CHARACTERISTICS OF CRIMINAL

LAW

1. GENERAL, in that criminal law is binding on all persons who live or sojourn in Philippine territory (Art. 14, New Civil Code.).

EXCEPTIONS:

a. Those who are exempted by treaty stipulations.

b. Those who are exempted by laws of preferential application

c. Those who are exempted by virtue of the principles of public internal law (such as sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and their charges d’affaires. But consuls, vice-consuls and other commercial representatives of foreign nations do not possess the status of, and cannot claim the same privileges and immunities accorded to ambassadors and ministers (Wheaton, International Law).

2. TERRITORIAL, in that criminal laws of the Philippines, as a rule, are enforceable only within its territory.

EXCEPTION:

a. Those provided under Art. 2 of the Revised Penal Code.

3. PROSPECTIVE, in that a penal law cannot make an act punishable in a manner in

which it was not punishable when

committed. As provided in Article 366 of the Revised penal Code, crimes are punished under the laws in force at the time of their

commission.

EXCEPTION:

a. When a new statute dealing with the

crime established conditions more

lenient or favorable to the accused, it can be given a retroactive effect.

BUT THIS EXCEPTION HAS NO APPLICATION WHEN:

a. the new law is expressly made inapplicable to pending actions or existing causes of

actions.

b. the offender is a habitual criminal.

EFFECTS OF REPEAL OF PENAL

LAW

1. If the repeal makes the penalty lighter in the new law, the new law shall be applied. Except when the offender is a habitual delinquent, or when the new law is made inapplicable to pending actions or existing causes of action.

2. If the new law imposes a heavier penalty, the law in force at the time of the commission of the offense shall be applied. 3. If the new law totally repeals the existing law

so that the act which was penalized under the old law is no longer punishable, the crime is obliterated.

ART. I. TIME WHEN THE ACT TAKES

EFFECT.

TWO SCHOOLS OF THOUGHT IN

CRIMINAL LAW

1. Classical - the basis of criminal liability is human free will, and the purpose of the penalty is retribution.

2. Positivists- man is subdued by a strange and morbid phenomenon which constrains him to do wrong, in spite of or contrary to his own volition; crimes are penalized distinctly in each particular case.

ART. 2. APPLICATION OF ITS

PROVISIONS

This article is an exception to the principle of Generality of penal laws.

VESSELS

1. A Philippine vessel or aircraft must be understood as that which is registered in the Philippine Bureau of Customs.

2. Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the

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home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. 3. In case vessels are in the ports or territorial

waters of a foreign country, a distinction must be made between the merchant ships and warships. The former are more or less subjected to the territorial laws. Warships are always reputed to be the territory of the country to which they belong and cannot be subjected to the laws of another state.

ART. 3. FELONIES

GENERAL ELEMENTS OF FELONIES:

1. That there must be an act or omission. But only external acts are punishable, internal acts are beyond the sphere of penal laws. 2. That the act or omission must be punishable

by the Revised Penal Code; the reason being, ―nullum crimen, nulla poena sine lege‖- there is no crime when there is no law punishing it.

3. That the act is performed or the omission incurred by means of dolo or culpa.

CLASSIFICATION OF FELONIES

ACCORDING TO THE MEANS BY WHICH

THEY ARE COMMITTED

1. Intentional felonies- the act is performed

with deliberate intent or malice. The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another.

REQUISITES OF DOLO OR MALICE:

1. FREEDOM; 2. INTELLIGENCE;

3. INTENT while doing the act or omitting to do the act. Criminal intent is presumed from the commission of an unlawful act.

2. Culpable felonies- the act or omission of

the offender is not malicious. The injury caused by the offender to another person is ―unintentional‖, it being simply the incident of another act performed without malice.

REQUISITES OF CULPA:

Criminal intent is replaced by ―negligence and imprudence‖ in felonies committed by means of culpa. Such negligence or indifference to duty or to consequence is, in law, equivalent to criminal intent. Hence, it is still consistent with the rule that: ―a crime is not committed, if the mind of the person performing the act complained of be innocent‖.

REASON FOR PUNISHING ACTS OF NEGLIGENCE:

A man must use common sense, and

exercise due reflection in all his acts; it is his duty to be cautious, careful and prudent, if not from instinct, then through fear of incurring punishment.

3. Mala Prohibita- this is the third class of

crimes specifically punishable by SPECIAL LAWS, and where criminal intent (or criminal negligence) is not, as a rule, necessary--- it being sufficient that the offender has the intent to perpetrate the act prohibited by the special law.

 When the doing of an act is prohibited by a special law, the act is injurious to public welfare and the doing of the prohibited act is the crime itself. The act alone, irrespective of its motives, constitutes the offense, and so good faith is not a defense.

 However, when the act penalized under the Special Law is inherently wrong, good faith and lack of criminal intent are valid defenses.

MALA IN SE AND MALA PROHIBITA

1. Malum in Se – (bad per se) violation of the RPC

2. Malum Prohibitum – violation of special penal laws

DISTINCTIONS

(CODE: G-CAMP)

Malum in se

Malum prohibitum

1. Criminal liability is

based on the

MORAL TRAIT of the offender, that is why liability would only arise when there is dolo or culpa in the commission of the punishable act.

1. The moral trait of

the offender is

NOT considered, it is enough that the prohibited act be voluntarily done. 2. GOOD FAITH or lack of criminal intent is a valid defense, unless

the crime is the result of culpa.

2. Good faith is NOT a defense.

3. The degree of

ACCOMPLISHME NT of the crime is taken into account in punishing the offender. Thus, there are attempted, frustrated and consummated stages in the

3. The act gives rise to a crime only when it is consummated. There are NO attempted or frustrated stages.

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Malum in se

Malum prohibitum

commission of the crime.

4. Penalty may vary depending on the presence or absence of CIRCUMSTANCES. 4. Mitigating and aggravating circumstances are NOT taken into

account in

imposing the

penalty. 5. Where there are

more than one

offender, the

degree of

PARTICIPATION of each in the commission of the crime is taken into

account in imposing the penalty. Thus offenders are classified principals, accomplices and accessories. 5. The degree of participation of any offender is NOT considered. All those who perpetrated the

prohibited act are penalized to the same extent. There is no principal or accomplice or accessory to consider.

DISTINCTIONS

INTENT MOTIVE 1. purpose to use particular means to effect such result

1. moving power which impels one to act

2. element of the crime, except in malum prohibita 2. NOT an element of the crime 3. essential in intentional felonies

3. essential only when the identity of the perpetrator is in doubt

ART. 4. CRIMINAL LIABILITY

One who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen, intended or not.

REQUISITES FOR CRIMINAL LIABILITY FOR A FELONY, DIFFERENT FROM THAT INTENDED TO BE COMMITTED (ART. 4,

PAR.1):

1. That an Intentional felony has been committed; and

2. That the wrong done to the aggrieved party

be the direct, natural and logical

consequence of the felony committed by the offender (Proximate cause).

PROXIMATE CAUSE -the cause, which, in

natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred‖.

 One is NOT relieved from criminal liability for the natural consequences of one’s illegal acts merely because one does not intend to produce such consequences, as long as the felony committed was the proximate cause.

CAUSES WHICH MAY PRODUCE A

RESULT DIFFERENT FROM THAT

INTENDED

1. Error in personae- mistake in the identity of the victim

2. Aberratio ictus- mistake in the blow

3. Praeter intentionem- the injurious result is different from that intended

MISTAKE OF FACT AS A DEFENSE

REQUISITES:

1. the act done would have been lawful had the facts been as accused believed them to be 2. the intention of the accused in doing the act

was lawful

3. the mistake was without fault or

carelessness on the part of the accused

REQUISITES FOR AN IMPOSSIBLE CRIME (ART. 4, PAR. 2):

1. That the act performed would be an offense against persons or property

2. That the act was done with evil intent

3. That its accomplishment is inherently impossible, OR that the means employed is either inadequate or ineffectual.

4. That the act performed should not constitute a violation of another provision of the Revised Penal Code.

 The purpose of the law in punishing impossible crime is to teach the offender a lesson for his criminal perversity.

 There is no such thing as an attempted or frustrated impossible crime.

ART. 6. CONSUMMATED,

FRUSTRATED,

AND ATTEMPTED FELONIES

STAGES OF OFFENSES

1. CONSUMMATED FELONY - A felony is consummated when all the elements

necessary for its execution and

accomplishment are present.

Every crime has its own elements, which must all be present to constitute a culpable

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violation of a precept of law.

2. FRUSTRATED FELONY - It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence, but which nevertheless do not produce it, by reason of causes independent of the will of the perpetrator. ELEMENTS:

(CODE: APNI)

1. The offender performs all the acts of

execution

2. All the acts performed would produce the felony as a consequence

3. But the felony is not produced

4. By reason of causes independent of the

will of the perpetrator

 The belief of the accused is NOT considered. What should be considered is whether all the acts of execution performed by the offender ―would produce the felony as a consequence‖. 3. ATTEMPTED FELONY - There is an

attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony, by reason of some cause or accident other than his own spontaneous desistance. ELEMENTS:

(Code1: C-A-OA)

1. The offender commences the

commission of the felony directly by overt acts

2. He does not perform all the acts of

execution which should produce the

felony

3. The offender’s act be not stopped by his

own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident

other than his own spontaneous desistance.

 OVERT ACTS: Some physical activity or deed, indicating intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles, nor by voluntary desistance of the perpetrator will logically ripen into a concrete offense.

 INDETERMINATE OFFENSE : One where

1 A dash (-) before a letter means ―NOT‖.

the purpose of the offender in performing an act is not certain.

 Only offenders who personally executed the commission of a crime can be guilty of attempted felony. But one who takes part only in the planning of a criminal act, but desists in its actual commission, is as a rule exempt from criminal liability. TWO STAGES IN THE DEVELOPMENT OF A CRIME:

1. Internal acts, such as mere ideas in the mind of a person, are not punishable even if they would constitute a crime, had they been carried out.

2. External acts cover a) preparatory acts and b) acts of execution.

a. Preparatory acts are ordinarily not punishable. But preparatory acts, considered by law as independent crimes, are punishable. An example is the possession of picklocks under Art. 304, RPC, which is a preparatory act to the commission of robbery.

b. Acts of execution are punishable under the Revised Penal Code.

FACTORS TO CONSIDER IN DETERMINING WHETHER THE FELONY IS ATTEMPTED, FRUSTRATED OR CONSUMMATED: 1. Nature of the offense

2. Elements constituting the felony 3. Manner of committing the felony

ART. 7. LIGHT FELONIES

General rule: Light felonies are punishable only

when they have been consummated.

Exception: If committed against persons or

property, punishable even if attempted or frustrated.

ART. 8. CONSPIRACY AND

PROPOSAL TO COMMIT FELONY

REQUISITES OF CONSPIRACY:

1. That two or more persons came to an

agreement;

2. That the agreement pertains to the

commission of a felony; and

3. That the execution of the felony be decided upon.

REQUISITES OF PROPOSAL:

1. That a person has decided to commit a felony; and

2. That he proposes its execution to some other person or persons.

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PROPOSAL TO COMMIT FELONY:

1. As a manner of incurring criminal liability (general rule)

2. As a separate punishable offense

(exception)

RULES ON CONSPIRACY OR

PROPOSAL TO COMMIT A FELONY:

a. GENERAL RULE: Mere conspiracy and proposal to commit a felony are not punishable. Reason for the rule: conspiracy and proposal to commit a crime are only preparatory acts.

b. Exception: They are punishable in cases in which the law specially provides a penalty therefor.

c. And when conspiracy is itself a crime, no overt act is necessary to bring about criminal liability.

d. But when conspiracy is only a basis for incurring criminal liability, there must be an overt act before the co-conspirators become criminally liable. In which case, the rule is that: ―the act of one is the act of all‖.

 Exception: If any of the co-conspirators would commit a crime not agreed upon, the same is NOT the act of all.

Exception to the exception: But in acts constituting a ―single indivisible offense‖, all will be liable for a crime committed by one co-conspirator, even though he performed different acts from that agreed upon in bringing about the composite crime. The others may only evade responsibility for any other crime outside of that agreed upon, if it is proved that the particular conspirator had tried to prevent the commission of such other act.

ART. 9. CLASSIFICATION OF

FELONIES

ACCORDING TO GRAVITY

IMPORTANCE OF THE CLASSIFICATION: a. To determine whether these felonies can be

complexed or not;

b. To determine the prescription of the crime and the prescription of the penalty.

ART. 10. OFFENSES NOT SUBJECT

TO THE PROVISIONS OF THE RPC

 The provisions of the RPC on penalties cannot be applied to offenses punishable under special laws.

ART. 11. JUSTIFYING

CIRCUMSTANCES

DEFINITIONS:

1. Justifying circumstances are those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. There is no civil liability, except in par. 4 of Art. 11, where the civil liability is borne by the persons benefited by the act.

2. Confession and avoidance –the accused

admits the offense charged but invokes justifying or exempting circumstances to evade the penalty.

1. SELF-DEFENSE

REQUISITES:

1. unlawful aggression;

2. reasonable necessity of the means

employed to prevent or repel it; and

3. lack of sufficient provocation on the part of the person defending himself

 Unlawful aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind.

 NOT considered unlawful aggression: a. Insulting words addressed to the accused,

no matter how objectionable they may have been, without physical assault, could NOT constitute unlawful aggression.

b. A mere threatening or intimidating attitude, not preceded by an outward and material aggression, is NOT unlawful aggression, because is it required that the act be offensive and positively strong, showing the wrongful intent of the aggressor to cause an injury.

 Necessity must be both on the means employed and the action taken.

 Reasonableness of the means employed depends upon the nature and quality of the (1) weapon used by the aggressor, and (2) his physical condition, character, size and other circumstances, (3) and those of the person defending himself, (4) and also the place and occasion of the assault.

 Test of reasonable necessity: What the law requires is ―rational equivalence‖, in consideration of which will enter as principal factors the following: (1) the emergency and

imminent danger to which the person

attacked is exposed, and (2) the instinct, more than reason, that moves or impels the defense. Proportionateness rests upon the imminent danger and not upon the harm done.

 NOT required for reasonable necessity:

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by the one defending himself and that of the aggressor is not required, nor material

commensurability between the means of

attack and defense. Reason: This is because the person assaulted does not have sufficient tranquility of mind to think and to calculate.

 Reason why penal law makes self-defense lawful:

It would be quite impossible for the State in all cases to prevent aggression upon its citizens (and even foreigners) and offer protection to the person justly attacked. On the other hand, it cannot be conceived that a person should succumb to an unlawful aggression without offering any resistance.  Rights included in self-defense:

Self-defense includes not only the defense of the person or body of the one assaulted but also that of his rights, the enjoyment of which is protected by law.

1. Includes the right to honor. Hence, a slap on the face is considered as unlawful aggression directed against the honor of the actor,

2. Includes defense of property rights, only if there is also an actual and imminent danger on the person of the one defending.

2. DEFENSE OF RELATIVES

RELATIVES THAT CAN BE DEFENDED: (CODE: SADB4)

1. Spouse 2. Ascendants 3. Descendants

4. Legitimate, natural or adopted brothers and sisters, or relatives by affinity in the same degrees.

5. Relatives by consanguinity within the fourth

civil degree

 That fact that the relative defended gave provocation is immaterial.

3. DEFENSE OF STRANGER

WHO ARE DEEMED STRANGERS?

Any person not included in the enumeration of relatives mentioned in paragraph 2 of this article, is considered stranger for the purpose of paragraph 3. Hence, even a close friend or a distant relative is a stranger within the meaning of paragraph 3.

4. AVOIDANCE OF GREATER EVIL OR

INJURY

 The greater evil must not be brought about by the negligence or imprudence of the actor.

 Civil liability referred to in a state of

necessity is based not on the act committed, but on the benefit derived from the state of necessity.

a. So the accused will not be civilly liable if he did not receive any benefit from the state of necessity.

b. On the other hand, persons who did not participate in the damage or injury would be pro tanto civilly liable if they derived benefit out of the state of necessity.

5. FULFILLMENT OF DUTY; OR

LAWFUL EXERCISE OF RIGHT OR

OFFICE

REQUISITES:

1. That the accused acted in the performance of a duty or in the lawful exercise of a right or office;

2. That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.

6. OBEDIENCE TO AN ORDER ISSUED

FOR SOME LAWFUL PURPOSE

REQUISITES:

1. That an order has been issued by a superior 2. That such order must be for some lawful

purpose

3. That the means used by the subordinate to carry out said order is lawful

 Both the person who gives the order and the person who executes it must be acting within the limitations prescribed by law.

ART. 12. EXEMPTING

CIRCUMSTANCES

DEFINITION:

1. Exempting circumstances (or the

circumstances for non-imputability) are

those grounds for exemption from

punishment, because there is wanting in the agent of the crime any of the conditions which makes the act voluntary, or negligent.

BASIS:

The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused.

DISTINCTIONS

(CODE: AL-C-L) JUSTIFYING CIRCUMSTANCE EXEMPTING CIRCUMSTANCE

1. It affects the act not the actor.

1. It affects the actor not the act.

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2. The act is

considered to have been done within the bounds of law; hence, legitimate and lawful in the eyes of the law.

2. The act

complained of is actually wrongful, but the actor is not liable.

3. Since the act is considered lawful, there is no crime.

3. Since the act complained of is actually wrong, there is a crime; but the since actor acted without voluntariness, there is no dolo nor culpa. 4. Since there is no crime, nor a criminal, there is also no liability, criminal nor civil.

4. Since there is a crime committed though there is no criminal, there is civil liability.

1. IMBECILITY OR INSANITY

1. Insanity or imbecility exists when there is a complete deprivation of intelligence in committing the act, that is, the accused is (1) deprived of reason, he acts without the least discernment, or that (2) there is a total deprivation of freedom of the will. An imbecile is exempt in all cases from criminal liability.

2. But an insane person is not so exempt if it can be shown that he acted during a lucid

interval.

3. Also, when the accused was sane at the time of the commission of the crime, but he becomes insane at the time of the trial, he is criminally liable. The trial, however, will be suspended until the mental capacity of the accused is restored, in order to afford him a fair trial.

 2 TESTS OF INSANITY:

1. Test of COGNITION– complete

deprivation of intelligence in committing the crime.

2. Test of VOLITION – total deprivation of freedom of will.

2. PERSON UNDER NINE YEARS OF

AGE

 An infant under the age of nine years is absolutely and conclusively presumed to be incapable of committing a crime.

3. PERSON OVER NINE YEARS OF AGE

AND UNDER FIFTEEN, ACTING

WITHOUT DISCERNMENT

1. Discernment means mental capacity (i.e. of

a minor) to fully appreciate the

consequences of an unlawful act.

2. Discernment may be shown by (1) the

manner the crime was committed, or (2) the conduct of the offender after its commission

4. A PERSON WHO WHILE

PERFORMING A LAWFUL ACT WITH

DUE CARE, CAUSES INJURY, BY

MERE ACCIDENT WITHOUT FAULT

OR INTENTION OF CAUSING IT

1. Accident is something that happens outside the sway of our will, and although it comes about through some act of our will, lies beyond the bounds of humanly foreseeable consequences.

2. An accident presupposes lack of intention to commit the wrong done.

5. A PERSON WHO ACTS UNDER THE

COMPULSION OF AN IRRESISTIBLE

FORCE

ELEMENTS:

1. That the compulsion is by means of physical force.

2. That the physical force must be irresistible. 3. That the physical force must come from a

third person.

 The irresistible force must never consist in an impulse or passion, or obfuscation. It must consist of an extraneous force coming from a third person.

6. A PERSON WHO ACTS UNDER THE

IMPULSE OF UNCONTROLLABLE

FEAR OF AN EQUAL OR GREATER

INJURY

ELEMENTS:

1. That the threat which causes the fear is of an evil greater than, or at least equal to, that which he is required to commit;

2. That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it.

 Duress as a valid defense should be based on real, imminent, or reasonable fear for one’s life or limb and should not be speculative, fanciful, or remote fear.

 Hence, duress is unavailing where the accused had every opportunity to run away if he had wanted to, or to resist any possible aggression because was also armed.  DISTINGUISHED FROM IRRESISTIBLE

FORCE:

In irresistible force (par. 5), the offender uses violence or physical force to compel another person to commit a crime; in uncontrollable fear (par. 6), the offender employs intimidation or threat in compelling another to commit a crime.

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7. A PERSON WHO FAILS TO

PERFORM AN ACT REQUIRED BY

LAW, WHEN PREVENTED BY SOME

LAWFUL OR INSUPERABLE CAUSE.

ELEMENTS:

1. That an act is required by law to be done 2. That a person fails to perform such act 3. That his failure to perform such act was due

to some lawful or insuperable cause.

ABSOLUTORY CAUSES

 DEFINITION:

Absolutory causes are those where the act

committed is a crime but for reasons of public policy and sentiment there is no penalty imposed.

 Instigation is an absolutory cause.

REASON: An instigator practically induces the ―would-be accused‖ into the commission of the offense, and himself becomes a co-principal. Sound public policy requires that the courts condemn this practice by directing the acquittal of the accused.

ART. 13. MITIGATING

CIRCUMSTANCES

DEFINITION:

1. Mitigating circumstances are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty. BASIS:

Mitigating circumstances are based on the

diminution of either freedom of action,

intelligence, or intent, or on the lesser perversity of the offender.

CLASSES OF MITIGATING

CIRCUMSTANCES

1. Ordinary mitigating– those enumerated in subsections 1 to 10 of Article 13, RPC. Those mentioned in subsection 1 of Art. 13 are ordinary mitigating circumstances, if Art. 69, for instance, is not applicable.

2. Privileged mitigating – see Arts. 68, 69 and 64 of the RPC.

DISTINCTIONS

(CODE: OM) ORDINARY MITIGATING CIRCUM-STANCE PRIVILEGED MITIGATING CIRCUM-STANCE As to the nature of the consequences 1. It can be offset by an aggravating circumstance . 1. It can NEVER be offset by any aggravating circumstance . As to the effect 2. If not offset, it will operate to reduce the penalty to the minimum period, provided the penalty is a divisible one. 2. It operates to reduce the penalty by one to two DEGREES depending upon what the law provides.

PARAGRAPH 1: INCOMPLETE

JUSTIFYING OR EXEMPTING

CIRCUMSTANCE

1. Applies, when all the requisites necessary to

justify the act are not attendant.

2. But in the case of ―incomplete self-defense, defense of relatives, and defense of stranger‖, unlawful aggression must be present, it being an indispensable requisite.

PARAGRAPH 2: UNDER 18, OR OVER 70

YEARS OLD

LEGAL EFFECTS OF VARIOUS AGES OF OFFENDER:

1. Under 9 years of age, an exempting circumstance (Art. 12, par. 2);

2. Over 9 and under 15 years of age, acting without discernment is also an exempting circumstance, (Art. 12, par. 3; see Art. 68, par. 1);

3. Minor delinquent (under 18 years of age), the sentence may be suspended (Art. 192, PD 603, as amended by PD 1179);

4. Under 18 years of age, privileged mitigating circumstance (Art. 68);

5. 18 years or over, full criminal responsibility; 6. 70 years or over, mitigating circumstance

(Art. 13, par. 2), no imposition of death

penalty (Art. 47, par. 1), execution of death

sentence if already imposed is suspended and commuted (Art. 83).

PARAGRAPH 3: NO INTENTION TO

COMMIT SO GRAVE A WRONG

1. If the offender had no intention to commit so grave a wrong as that committed, he is entitled to a mitigating circumstance. This can be taken into account only when the facts proven show that there is a notable and evident disproportion between the means employed to execute the criminal act

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and its consequences.

2. This paragraph is not applicable to culpable felonies.

PARAGRAPH 4: PROVOCATION OR

THREAT

DEFINITION:

Provocation is understood as any unjust or

improper conduct or act of the offended party, capable of exciting, inciting, or irritating any one. REQUISITES:

(Code: soi)

1. That the provocation must be sufficient. 2. That it must originate from the offended

party.

3. That the provocation must be immediate to the commission of the crime by the person who is provoked.

 The threat should not be offensive and positively strong. Otherwise, the threat to inflict real injury is an unlawful aggression, which may give rise to self- defense.

PARAGRAPH 5: VINDICATION OF

GRAVE OFFENSE

REQUISITES:

1. That there be a grave offense done to the one committing the felony (offender), his

spouse, ascendants, descendants,

legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees;

2. That the felony is committed in vindication of such grave offense.

 Immediate vindication means proximate. Hence, a lapse of time is allowed between the vindication and the doing of the grave offense.

DISTINCTIONS

(CODE: D-GI) PROVOCATION VINDICATION 1. It is made directly only to the person committing the felony. 1. The grave offense may be committed also against the offender’s relatives mentioned by law.

2. The cause that

brought about the provocation

need not be a grave offense.

2. The offended

party must have done a grave offense to the offender or his relatives mentioned by law. 3. It is necessary that the provocation or threat immediately preceded the act, i.e., that there be no interval of time between the provocation and the commission of the crime. 3. The vindication of the grave offense may be proximate, which admits of an INTERVAL of time between the grave offense done by the offended party and the commission of the crime by the accused.

PARAGRAPH 6: PASSION OR

OBFUSCATION

REQUISITES:

1. The accused acted upon an impulse.

2. The impulse must be so powerful that it naturally produced passion or obfuscation in him.

 REASON: When there are causes naturally producing in a person powerful excitement, he loses his reason and self-control, thereby diminishing the exercise of his will power. EXCEPTIONS: But even when there is actually passion or obfuscation on the part of the offender, there is no mitigating circumstance if: (a) The act is committed in a spirit of

lawlessness; or (b) The act is committed in a spirit of revenge.

PARAGRAPH 7: SURRENDER AND

CONFESSION OF GUILT

TWO MITIGATING CIRCUMSTANCES ARE PROVIDED IN THIS PARAGRAPH:

1. Voluntary surrender to a person in authority or his agents.

2. Voluntary confession of guilt before the court, prior to the presentation of evidence for the prosecution.

REQUISITES OF VOLUNTARY SURRENDER: (Code: -ASV)

1. That the offender had not been actually

arrested

2. That the offender surrendered himself to a person in authority or to the latter’s agent 3. That the surrender was voluntary. Meaning,

for voluntary surrender to be appreciated, the same must be spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities.

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REQUISITES OF VOLUNTARY PLEA OF GUILTY:

(CODE: SCP)

1. That the offender spontaneously confessed his guilt;

2. That the confession of guilt was made in open court, that is, before the competent

court that is to try the case; and

3. That the confession of guilt was made prior to the presentation of evidence for the prosecution. Meaning, plea of guilty in the RTC in a case appealed from the Municipal Court is not mitigating, because the plea of guilty must be made at the first opportunity (in this case, the Municipal Court).

PARAGRAPH 8: PHYSICAL DEFECT OF

THE OFFENDER

 DEFINITION: Physical defect referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his means to act, to defend himself, or to communicate with his fellow human beings, is limited.

PARAGRAPH 9: ILLNESS OF THE

OFFENDER

REQUISITES:

1. That the illness of the offender diminishes the exercise of his will power.

2. That such illness should not deprive the offender of consciousness of his acts.

PARAGRAPH 10: SIMILAR AND

ANALOGOUS CIRCUMSTANCES

 This paragraph authorizes the court to consider in favor of the accused ―any other circumstance of a similar nature and

analogous to those mentioned‖ in

paragraphs 1 to 9 of Article 13.

ART. 14 AGGRAVATING

CIRCUMSTANCES

DEFINITION:

1. Aggravating circumstances are those which, if attendant in the commission of the crime, serve to increase the penalty without, however, exceeding the maximum of the penalty provided by law for the offense. BASIS:

They are based on the greater perversity of the offender manifested in the commission of the felony, as shown by (1) the motivating power itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or (5) the personal circumstances of the offender, or of the offended party.

FOUR KINDS OF AGGRAVATING

CIRCUMSTANCES

1. GENERIC– those that can generally apply to all crimes

 USUALLY: dwelling; nighttime; recidivism  ENUMERATED:

(1) Advantage taken of public position (2) Contempt or insult to public authorities (3) Commission in the dwelling of the

offended party

(4) Abuse of confidence; or obvious ungratefulness

(5) Places of commission

(6) Nighttime; uninhabited place; or band (7) Recidivism

(8) Reiteracion

(9) Craft, fraud, or disguise (10) Unlawful entry

(11) By breaking wall, etc.

(12) Aid of a minor (under 15 years)

2. SPECIFIC-- those that apply only to particular crimes.

 USUALLY: ignominy in crimes against chastity; or cruelty and treachery in crimes against persons

 ENUMERATED:

(1) disregard of rank, age, or sex of offended party

(2) superior strength; or means to weaken the defense

(3) treachery (4) ignominy (5) cruelty

3. QUALIFYING– those that change the nature of the crime.

 EXAMPLES: Alevosia (treachery), or evident premeditation qualifies the killing of a person to murder

4. INHERENT– those that must, of necessity, accompany the commission of the crime.

 EXAMPLE: Evident premeditation is

inherent in robbery, theft, estafa, adultery, or concubinage

DISTINCTIONS

(CODE: N-OA)

QUALIFYING AGGRAVATING CIRCUMSTANCE GENERIC AGGRAVATING CIRCUMSTANCE

1. It does not only give the crime its proper and exclusive name, but also places the author thereof in such a situation as to deserve no 1. Its effect is to increase the penalty, which should be imposed upon the accused without exceeding the limit prescribed by law.

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other penalty than that specially prescribed by law for said crime. 2. It cannot be offset by a an ordinary mitigating circumstance. 2. It may be compensated by a mitigating circumstance. 3. It must be alleged in the information, otherwise it is a generic aggravating circumstance only. 4. Must also be alleged in the information. (2000 Criminal Proc)

MODIFICATIONS IN THE APPLICATION

OF SOME AGGRAVATING

CIRCUMSTANCES (Acs)

(CODE: No Personal Knowledge)

1. ACs WHICH DO NOT HAVE THE EFFECT OF INCREASING THE PENALTY. Hence, (a) those which in themselves, constitute a crime specially punishable by law, and (b) those which are included by the law in defining a crime and prescribing the penalty therefor, shall NOT be taken into account for the purpose of increasing the penalty (Art. 62, par. 1).

2. ACs WHICH ARE PERSONAL TO THE OFFENDERS. Hence, those which arise: a) from the moral attributes of the offender, or b) from his private relations with the offended party, or c) from any other personal

cause, shall only serve to aggravate the

liability of the principals, accomplices, and accessories as to whom such circumstances are ATTENDANT (Art. 62, par. 3).

3. ACs WHICH DEPEND FOR THEIR APPLICATION UPON THE KNOWLEDGE OF THE OFFENDERS. Hence, those which consist 1) in the material execution of the act, or 2) in the means employed to accomplish it, shall serve to aggravate the liability of those persons only who had KNOWLEDGE of them at the time of the execution of the act or their cooperation therein (Art. 62, par. 4).

PARAGRAPH 1: ADVANTAGE TAKEN OF

PUBLIC POSITION (cannot be offset by

any mitigating circumstance)

1. ESSENCE: The public officer must use the influence, prestige, or ascendancy, which his office gives him, as the means by which he realizes his purpose. The essence of the matter is presented in the inquiry, ―Did the accused abuse his office in order to commit the crime?‖

2. NOT APPLIED: The circumstance, taking advantage of public position cannot be taken into consideration in offenses where taking

advantage of official position is made by law an integral element of the crime, such as in MALVERSATION under Art. 217, or in

FALSIFICATION OF DOCUMENT

COMMITTED BY PUBLIC OFFICERS

UNDER ART. 171. Also, this circumstance is inherent in the case of ACCESSORIES UNDER ART. 19, PAR. 3, and in CRIMES

COMMITTED BY PUBLIC OFFICERS

(FOUND IN ARTS. 204-245).

PARAGRAPH 2: CONTEMPT OR INSULT

TO PUBLIC AUTHORITIES

REQUISITES:

1. That the public authority is engaged in the exercise of his functions.

2. That he who is thus engaged in the exercise of said functions is NOT the person against whom the crime is committed.

3. The offender knows him to be a public authority.

4. His presence has not prevented the offender from committing the criminal act.

 If the crime is committed against a public authority while he is in the performance of his official duty, the offender commits direct assault (Art. 148).

 Knowledge that a public authority is present is essential.

DEFINITION:

A Public Authority, sometimes also called a

―person in authority‖, is a public officer who is directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws.

 Under the decided cases, a municipal

mayor, a barangay captain, or a barrio

captain is a person in authority or a public authority. Even a school teacher is now considered a person in authority under CA 578. So is a municipal councilor, a

municipal health officer, a nurse, or a BIR

agent. However, additional persons in authority under Art. 152 is only for purposes of direct assault and resistance.

 The chief of police should therefore be considered a public authority or a person in authority, for he is vested with jurisdiction or authority to maintain peace and order and is specifically duty bound to prosecute and to apprehend violators of the laws and

municipal ordinances, more than the

aforementioned officials who cannot

prosecute, and who are not even enjoined to arrest malefactors, although they are specifically mentioned as ―persons in authority‖ by the decided cases and by Art. 152 of the RPC as amended.

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12

PARAGRAPH 3: DISREGARD OF RANK,

AGE, OR SEX OF OFFENDED PARTY;

OR COMMISSION IN THE DWELLING OF

THE OFFENDED PARTY

 If all the four circumstances enumerated in this paragraph are present, they have the weight of only one aggravating circumstance only.

A. That the act be committed with insult

or in disregard of the respect due the

offended party on account of the –

DEFINITIONS:

a. rank of the offended party. There must be a difference in the social condition of the offender and the offended party.

b. age of the offended party. Applies to cases where the victim is of tender age as well as of old age.

c. sex of the offended party. This refers to the female sex, not to the male sex.

 This circumstance (rank, age, or sex) is applicable only in crimes against persons or honor.

DISREGARD OF RANK, AGE, OR SEX IS NOT AGGRAVATING IN THE FOLLOWING CASES:

a. When the offender acted with passion and obfuscation.

b. When there exists a relationship between the offended party and the offender.

c. When the condition of being a woman is indispensable in the commission of the crime. Thus, in (1) parricide, (2) abduction, or (3) seduction, sex is not aggravating.  Is disregard of sex absorbed in treachery?

There were 2 different rulings.

1. The earlier one says, disregard of sex is absorbed in treachery.

2. The later one says: the aggravating circumstance of disregard of sex and age are NOT absorbed in treachery because treachery refers to the manner of the commission of the crime, while disregard for sex and age pertains to the relationship to the victim (P v. Lapaz; March 31, 1989)

B. That the crime be committed in the

dwelling of the offended party.

1. REASON for aggravating the commission of the crime in one’s dwelling?

a. The abuse of confidence which the offended party reposed in the offender by opening the door to him; or

b. The violation of the sanctity of the home by trespassing therein with violence or against the will of the owner.

2. DEFINITIONS

 Dwelling must be a building or structure, exclusively used for rest and comfort. It includes dependencies, the foot of the staircase and enclosure under the house.

 There must be NO provocation, in order to consider this AC. By

PROVOCATION is meant, one

which is:

1. Given by the owner of the dwelling, 2. Sufficient, and

3. Immediate to the commission of the crime.

 For this circumstance to be considered, it is NOT necessary that the accused should have actually entered the dwelling of the victim to commit the offense. It is enough that the victim was attacked inside

his own house, although the

assailant may have devised means to perpetrate the assault from without.

DWELLING IS NOT AGGRAVATING IN THE FOLLOWING CASES:

a. When both offender and offended party are occupants of the same house, even if the offended party is a servant in the house.  BUT in adultery, it is still aggravating even if

it was also the dwelling of the unfaithful wife, because of a very grave offense against the head of the house. BUT the rule is again different if both the unfaithful wife and the paramour were living, and had the right to live, in the same house of the offended spouse.

b. In robbery by use of force upon things only, because dwelling is inherent.

c. In trespass to dwelling because of same reason.

d. When the dwelling does not actually belong to the offended party. HOWEVER, some decided cases considered ―temporary dwelling‖ as when the offended party was (a) raped in her boarding house; (b) raped in their paternal home where they were sleeping as guests, etc. because the RPC speaks of dwelling and not domicile.

PARAGRAPH 4: ABUSE OF

CONFIDENCE; OR OBVIOUS

UNGRATEFULNESS

REQUISITES:

1. That the offended party had trusted the offender.

2. That the offender abused such trust by committing a crime against the offended party.

3. That the abuse of confidence facilitated the commission of the crime; OR

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4. That the act be committed with obvious ungratefulness.

 The confidence between the offender and the offended party must be immediate and personal.

PARAGRAPH 5: PLACES OF

COMMISSION

COMPARISON OF PAR. 2 AND PAR. 5:

PAR. 2: CONTEMPT OR

INSULT TO PUBLIC AUTHORITIES

PAR. 5: PLACE WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF THEIR DUTIES 1. Public authorities are in the performance of their duties. 1. Public authorities are in the performance of their duties. 2. The public authorities are performing their duties outside of their office. 2. The public authorities, who are in the performance of their duties, must be in their office. 3. The public authority should not be the offended party. 3. The public authority may be the offended party.

 The place of the commission of the felony (par. 5), if it is Malacañang palace or a

church, is aggravating, regardless of whether State or official or religious functions are being held. BUT there is a decided case to the effect that the offender must have the intention to commit a crime when he entered the place; i.e. ―she must have murder in her heart‖ (P v. Jaurigue).  The Chief executive need not be in

Malacanang Palace. His presence alone in any place where the crime is committed is enough to constitute the aggravating circumstance, even if he is not engaged in the discharge of his duties in the place where the crime is committed.

 For the other public authorities, they must be actually engaged in the performance of duty.

PARAGRAPH 6: NIGHTTIME;

UNINHABITED PLACE; OR BAND

NIGHTTIME, UNINHABITED PLACE OR BAND IS AGGRAVATING –

1. When it facilitated the commission of the crime; or

2. When it was especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or 3. When the offender took advantage thereof

for the purpose of impunity.

DEFINITIONS:

1. ―For the purpose of impunity‖ means to prevent his (accused’s) being recognized, or to secure himself against detection and punishment.

2. ―Nighttime‖ is the period of darkness beginning at the end of dusk and ending at dawn. Nighttime by and of itself is not necessarily aggravating. TESTS: (1) the commission of the crime must begin and be accomplished in the nighttime; (2) the offense must be actually be committed in the darkness of the night.

3. ―An uninhabited place‖ is one where there are no houses at all, a place at a considerable distance from town, or where the houses are scattered at a great distance from each other. TEST (OF UNINHABITED PLACE): But whether or not the crime is attended by this aggravating circumstance should be determined not by the distance of the nearest house from the scene of the crime, but whether or not in the place of the commission of the offense there was a reasonable possibility of the victim receiving some help. TEST (OF WHETHER OR NOT AGGRAVATING):

4. ―BAND‖ --Whenever more than three armed

malefactors shall have acted together in the commission of an offense it shall be deemed to have been committed by a band.

―Acted together‖-- means direct part in the execution of the act constituting the crime. Hence, if one of the four armed men is a principal by inducement only, they do not form a band, because a principal by inducement connotes that he has no direct participation in the perpetration thereof.  BAND IS AGGRAVATING IN: (a) crimes

against property (except in brigandage, because it is inherent); (b) crimes against

persons (note rape, which is already a crime

against persons), (c) illegal detention, and; (d) treason.

PARAGRAPH 7: ON OCCASION OF

CALAMITY OR MISFORTUNE

 THE REASON for the existence of this circumstance is found in the debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their great suffering by

taking advantage of their misfortune to

despoil them.

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ETC.

REQUISITES:

1. That armed men or persons took part in the commission of the crime, directly or

indirectly.

2. That the accused availed himself of their aid or relied upon them when the crime was committed.

Exceptions:

1. This aggravating circumstance shall not be considered when both the attacking party and the party attacked were equally armed. 2. This aggravating circumstance is 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.

DISTINCTIONS:

BETWEEN PAR 8 (“WITH AID OF

ARMED MEN”) AND PAR. 6 (“BY A

BAND”)

 By a band requires that more than three armed malefactors shall have acted together in the commission of an offense. Aid of armed men is present even if one of the offenders merely relied on their aid, for actual aid is not necessary.

PARAGRAPH 9: RECIDIVIST

DEFINITION:

Recidivist is one who, at the time of his trial for

one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. REQUISITES:

CODE: (TriPS CONVICTED)

1. That the offender is on trial for an offense; 2. That he was previously convicted by final

judgment of another crime;

3. That both the first and the second offenses are embraced in the same title of the Code; 4. That the offender is convicted of the new

offense.

 There is no recidivism if the subsequent conviction is for an offense committed before the offense involved in the prior conviction.

 When one offense is punishable by an ordinance or special law and the other by the Revised Penal Code, recidivism cannot be applied; the two offenses are not embraced in the same title of the Code.  Recidivism must be taken into account as an

aggravating circumstance no matter how many years have intervened between the first and second felonies.

PARAGRAPH 10: REITERACION OR

HABITUALITY

REQUISITES:

CODE: (TriPLE CONVICTED)

1. That the accused is on trial for an offense; 2. That he previously served sentence for

another offense to which the law attaches an

equal or greater penalty, or for two or more

crimes to which it attaches lighter penalty than that for the new offense.

3. That he is convicted of the new offense.

DISTINCTIONS

RECIDIVISM

REITERACION

1. It is enough that

a final judgment

has been

rendered in the

first offense.

1. It is necessary

that the offender

shall have

served out his

sentence for the

first offense

2. Recidivism

requires that the

offenses be

included in the

same title of the

Code.

2. The previous

and subsequent

offenses must

NOT be

embraced in the

same title of the

Code

3. It is always to be taken into consideration in fixing the penalty to be imposed upon the accused.

3. It is NOT always

an aggravating

circumstance

FOUR FORMS OF REPETITION

1. Recidivism (Par. 9, Art. 14)

2. Reiteracion or habituality (Par. 10, Art. 14) 3. Multi-recidivism or habitual delinquency (Art.

62, Par. 5)

4. Quasi-Recidivism (Art. 160)

PARAGRAPH 11: PRICE, REWARD, OR

PROMISE

1. When this aggravating circumstance is present, there must be two or more principals; the one who gives or offers the price or promise and the one who accepts it.

2. The evidence must show that one of the accused used money or other valuable

consideration for the purpose of

inducing another to perform the deed.

PARAGRAPH 12: BY MEANS OF

INUNDATION, FIRE, ETC.

 Any of the circumstances in paragraph 12 cannot be considered to increase the penalty or to change the nature of the

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15

offense unless used by the offender as a

means to accomplish a criminal purpose.

PARAGRAPH 13: EVIDENT

PREMEDITATION

ESSENCE:

The essence of premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment.

REQUISITES:

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his determination; and

3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will.

 CONSPIRACY GENERALLY

PRESUPPOSES PREMEDITATION, EXCEPTION: But when conspiracy is only

implied, the evident premeditation may not

be appreciated from the mere conspiracy.

PARAGRAPH 14: CRAFT, FRAUD, OR

DISGUISE

DEFINITIONS:

1. Craft involves the use of intellectual

trickery or cunning on the part of the

accused.

2. Fraud involves the use of insidious

words and machination, used to induce

the victim to act in a manner, which would enable the offender to carry out his design.

3. Disguise involves resort to any device in order to conceal identity.

CRAFT DISTINGUISHED FROM FRAUD

When there is a direct inducement by insidious words or machinations, fraud is present; otherwise, the act of the accused done in order

not to arouse the suspicion of the victim

constitutes craft.

PARAGRAPH 15: SUPERIOR

STRENGHT; OR MEANS TO WEAKEN

DEFENSE

1. Superior Strength-- To take advantage of superior strength means to use purposely,

excessive force out of proportion to the

means of defense available to the person attacked.

 The aggravating circumstance of abuse of superior strength depends on the age, size, and strength of the parties.

 TEST: It is considered whenever there is a

notorious inequality of forces between the

victim and aggressor, assessing a

superiority of strength notoriously

advantageous for the aggressor, which is selected or taken advantage of by him in the commission of the crime.

2. Means to weaken the defense-- The offender employs means to materially

weaken the resisting power of the offended

party.

PARAGRAPH 16: TREACHERY

MEANING OF TREACHERY:

1. There is treachery when the offender commits any of the crimes against the

person, employing means, methods or forms

in the execution thereof which tend directly and specially to insure its execution, without

risk to himself arising from the defense

which the offended party might make.

 The characteristic and unmistakable

manifestation of treachery is the deliberate,

sudden and unexpected attack of the victim,

without any warning, and without giving him an opportunity to defend himself, or repel the initial assault.

2. Treachery means that the offended party was not given opportunity to make a defense.

 Killing a child is characterized by treachery, because the weakness of the victim due to his tender age results in the absence of any danger to the accused.

SOME RULES ON TREACHERY: CODE: (P-ICTAN)

1. Applicable only to crimes against the

persons

2. Means, methods, or forms need not insure accomplishment of crime.

3. The mode of attack must be consciously adopted.

4. Must be present at the proper time.

SUMMARY OF THE RULES ON WHEN TREACHERY MUST BE PRESENT: a) When the aggression is continuous,

treachery must be present in the

beginning of the assault;

b) When the assault was not

continuous in that there was an interruption, it is sufficient that treachery was present at the moment the fatal blow was given. 5. Treachery absorbs abuse of superior

strength, aid of armed men, by a band and means to weaken the defense.

6. Nighttime forms part, of the peculiar treacherous means and manner adopted to insure the execution of the crime.

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16

(Note: there is need to establish the manner by which offender attacked the victim. There is no presumption of aggravating circumstance, more so if qualifying)

PARAGRAPH 17: IGNOMINY

DEFINITIONS:

1. Ignominy—a circumstance pertaining to the moral order, which adds disgrace and

obloquy to the material injury caused by the

crime.

2. It must tend to make the effects of the crime

more humiliating or to put the offended party

to shame.

WHERE APPLICABLE:

This aggravating circumstance is applicable to (a) crimes against chastity, (b) less serious physical injuries, (c) light or grave coercion, (d) and murder.

PARAGRAPH 18: UNLAWFUL ENTRY

 There is unlawful entry when an entrance is effected by a way not intended for the purpose. It must be a means to effect entrance and not for escape.

PARAGRAPH 19: BY BREAKING WALL,

ETC.

 To be considered as an aggravating circumstance, breaking the door must be utilized as a means to the commission of the crime.

PARAGRAPH 20: AID OF MINOR (UNDER

15 YEARS); OR BY MEANS OF MOTOR

VEHICLES, ETC.

TWO DIFFERENT CIRCUMSTANCES ARE GROUPED IN THIS PARAGRAPH.

The first one tends to repress the frequent practice resorted to by professional criminals to avail themselves of minors taking advantage of their irresponsibility; while the second one is intended to counteract the great facilities found by modern criminals in said means to commit crime, and then flee and abscond once the same is committed.

PARAGRAPH 21: CRUELTY

ESSENCE:

THERE IS CRUELTY when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act.

REQUISITES:

1. That the injury caused be deliberately

increased by causing other wrong;

2. That the other wrong be unnecessary for the execution of the purpose of the offender.  For cruelty to be aggravating, it is essential

that the wrong done was intended to

prolong the suffering of the victim, causing

him unnecessary moral and physical pain.  Ignominy (par. 17) involves moral suffering,

while cruelty (par. 21) refers to physical suffering.

ART. 15 ALTERNATIVE

CIRCUMSTANCES

DEFINITION:

Alternative circumstances are those, which must

be taken into consideration as aggravating or mitigating, according to the nature and effects of the crime and the other conditions attending its commission.

THE ALTERNATIVE CIRCUMSTANCES ARE: 1. Relationship

2. Intoxication

3. Degree of instruction and education of the offender

1. RELATIONSHIP--

The alternative circumstance of relationship shall be taken into consideration when the

offended party is the

CODE: (SADBA) 1. spouse 2. ascendant 3. descendant

4. legitimate, natural or adopted brother or sister, or relative by affinity in the same degree, of the offender.

 The relationship of stepfather or stepmother and stepson or stepdaughter is included by

analogy to that of ascendant and

descendant. WHEN MITIGATING

AND WHEN AGGRAVATING:

The law is silent as to when mitigating and when aggravating.

1. MITIGATING: As a rule, relationship is mitigating in crimes against property, by analogy to Art. 332 regarding ―Persons exempt from criminal liability‖. OF COURSE in view of Art. 332, when the crime committed is: (a) theft, (b) estafa, or (c)

malicious mischief, relationship is

exempting, and not merely mitigating.

2. AGGRAVATING. It is aggravating in crimes

against persons in cases where the

offended is a relative of a higher degree than the offender, or when the offender and the offended party are relatives of the same level, such killing a brother-in-law, a half-brother, or an adopted brother.

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