TABLE OF CONTENTS
Introduction……….. 1
Book One GENERAL PROVISIONS REGARDING THE DATE OF ENFORCEMENT AND APPLICATION OF THE PROVISIONS OF THIS CODE, AND REGARDING THE OFFENSES, THE PERSONS LIABLE AND THE PENALTIES Title One FELONIES AND CIRCUMSTANCE WHICH AFFECT CRIMINAL LIABILITY Chapter One – Felonies………. 11
1. Classification of Felonies………. 12
2. Incurrence of Criminal Liability ………14
3. Duty of Court When Penalty is Excessive………. 20
4. Stages of Execution……… ..21
5. Light Felonies………. 24
6. Conspiracy and Proposal to Commit Felony………. 25
7. Offenses not Subject to the Code………26
Chapter Two – Circumstances Affecting Criminal Liability …………27
1. Justifying Circumstances……...……….…27
2. Exempting Circumstances………. 32
3. Mitigating Circumstances……..……… 37
4. Aggravating Circumstances….……….. 43
Title Two
PERSONS CRIMINALLY LIABLE FOR FELONIES
1.Who are liable ……….. …..65
2. Principals………...65 3. Accomplices………..68 4. Accessories………...69 Title Three PENALTIES 1. Penalties In General………...73 2. Classification of Penalties……… .73 3. Duration of Penalties……….……….75
4. Preventive and Subsidiary Imprisonment………76
5. Application of Mitigating and Aggravating………77
6. Other Effects of Penalty………..80
7. Complex Crimes and Their Penalties………..………….81
8. Continuing Crime………..…………82
9. Indeteminate Sentence Law………83
10. Probation Law………86
11. Conditions of Probation………88
12. Other Instances When Probation Not Applicable……….88
Title Four EXTINCTION OF CRIMINAL LIABILITY: TOTAL AND PARTIAL 1. Extinction of Criminal Liability (Total and Partial)……….89
2. Reason for Prescription of the Crime and/or Penalty………..………94
3. Marriage of the Offended Party with the Offender………..…95
Title Five CIVIL LIABILITY
1. Person Civilly Liable for Felonies………..97 2. Civil Liability of Parents and/or
Guardians………..………...97 3. Subsidiary Liability of Inn Keepers, Tavern-Keepers,
Employers, Teachers or Persons Engaged in
INTRODUCTION
CRIMINAL LAW Definition
Criminal Law is that branch or division of public law
which defines crimes, treats of their nature, and provides for their punishment.
Crime is defined as an act committed or omitted in
violation of public law forbidding or commanding it. It is a positive or negative act in violation of penal law; an offense against the state. (Black’s Law Dictionary)
Accused is a person formally charged in court for having
violated a penal law – either the Revised Penal Code or a special law; a person whom an accusastion is made. (Black’s Law Dictionary)
Sources of Philippine Criminal Law
1. The Revised Penal Code (Act No. 3815) which took effect on January 1, 1932, and its amendments;
2. Special laws defining acts and providing penalties for them passed by the legislative department or branch of Philippine Government known variously in Philippine history as Philippine Commission, Philippine Assembly, Philippine Legislature, National Assembly, Batasang Pambansa and Congress of the Philippines;
3. Presidential Decree of Pres. Ferdinand E. Marcos during his term; and
4. Executive Orders of Former Pres. Corazon C. Aquino during her incumbency.
Rights of the Accused
A. Constitutional Rights
1. Right to bail except those charged with offenses punishable by
reclusion perpetua (and/or death) when evidence of guilt is
strong. (Sec. 13, Art. III)
2. To be presumed innocent until the contrary is proved, to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witness face to face, and the right to compulsory process to secure attendance of witnesses, and production of evidence. (Sec. 14, Art. III)
3. Not to be compelled to be a witnessed against himself. (Sec. 17, Art. III)
4. Right against excessive fines or cruel, degrading or inhuman punishment. (Sec. 19, Art. III)
5. Right not to be put twice in jeopardy of punishment for the same offense. (Sec. 2, Art. III)
B. Statutory Rights
1. To be presumed innocent until the contrary is proved beyond reasonable doubt.
2. To be informed of the nature and cause of accusation against him 3. To be present and defend in person and by counsel at every stage of
the proceedings; to defend himself in person when its sufficiently appears to the court that he can protect his rights without the assistance of counsel.
4. To testify as a witness in his own behalf.
5. To be exempt from being compelled to be a witness against himself.
6. To confront and cross-examine the witness against him.
7. To have a compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.
8. To have a speedy, impartial and public trial, and
9. To have the right to appeal in all cases allowed and in the manner prescribed by law. (Sec. 115, Rules of Court)
It must be taken note of that the right to appeal is not a constitutional right. Congress may therefore pass a law eliminating or taking away this right.
Cardinal Features or Main Characteristics or Components of Philippine Criminal Law There are three (3);
1. General
- meaning that Philippine criminal laws are binding on all persons who live or sojourn in the Philippines. Whoever you are, whatever be your creed, religion, sex or nationality, as long as you reside in the Philippine territory, penal laws of the Philippines shall apply on you. Thus, the contention of the accused that being an American citizen he can not be prosecuted for, much less convicted of, Illegal Possession of Firearm because it is a constitutional right of the citizen of the U.S.A. “to keep and bear arms” without need of securing government license therefore is untenable since the Philippines, as a sovereign state, has a right to uphold its law and maintain order within its domain, and with the general jurisdiction to punish person for offenses committed within its territory. (People vs. Galacgac, C.A. 54 O.G. 1027)
There are exceptions to this general application of criminal Law:
A. Principles of Public International Law
Thus, sovereigns and other chiefs of state, Ambassadors, Ministers plenipotentiary, Minister residents, and charges d’affaires even if residing or sojourning in the Philippines, and committing crimes herein not subject to our penal laws.
B. Treaties or Treaty Stipulations
The persons who are exempted from the operation or application of our criminal laws under the provisions of the treaties entered into by the Philippines with another country are likewise exempted. Under the defunct Military Base Agreement entered into by Philippines and U.S.A. on March 14, 1947 – any offense committed outside the bases by any member of armed forces of the United States where the offended party is also a member of the said armed forces is not cognizable by the Philippine courts. Under the VFA, an American soldier committing a crime during military exercises is also exempt from the operation of Philippine criminal law.
C. Laws of Preferential Application
An example is Sec. 11 of Art.VI of the Constitution which provides that “No member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof. “Thus, if a Senator A delivers a libelous speech in Congress against B, he can not be punished or be held liable even if he is residing in the Philippines.
2. Territorial
- in that our criminal law undertakes to punish crimes committed only within the Philippine territory. Outside of the parameters of the Philippine archipelago, Philippine criminal laws can not be enforced.
There are exceptions however. Under Art. 2 of the Revised Penal Code, there are five (5) instances where the provisions shall be enforced outside of the jurisdiction of our country against those who:
A. Should commit an offense while on a Philippine ship or airship.
B. Should forge or counterfeit any coin or currency note of the Philippines or obligations and securities issued by the Government of the Philippines.
C. Should be liable for acts connected with the introduction into the Philippines of the obligations and securities mentioned in the preceding number.
D. While being public officers or employees, should commit an offense in the exercise of their functions; or
E. Should commit any of the crimes against national security and the law of nations defined in Title One of Book Two of this Code.
3. Prospective
- meaning that a penal law can not make an act punishable when it was not punishable when committed. In other words, crimes are punished under the laws in force at the time the same were perpetrated. It is consonance with the constitutional prohibition against Ex Post Facto Law. It reflects the maxim: mullum crimen sine poena; nulla poena sine lege - that is, there is no crime without a penalty and there is no penalty without law.
Exception however is provided for by Article 22. It says:
Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code x x x.
The retroactive effect shall benefit the accused even if at the time of the publication of the law, a final judgement has been pronounced and the convict is serving sentence.
Even if the law uses the words “felony” and “habitual criminal as this term is defined in Rule 5 of Article 62,” this is applicable to special laws which provide more favorable conditions to the accused. (People vs. Soliman, 36
Phil. 5; People vs. Simon, 234 SCRA 555; People vs. De Lara, 236 SCRA 291)
There is no retroactive effect however, even if the law is favorable to the accused if he is a habitual delinquent or where the law is expressly made inapplicable to pending actions. (Tavera vs. Valdez, 1 Phil. 468)
If the repealing law favors the accused by diminishing the penalty, or doing it away altogether, then the same should be applied to the extent it is favorable to the offender. (People vs. Soliman, 36 Phil. 5)
If a repealing law contains provisions which are favorable to the accused and also provisions unfavorable to the accused and also provisions unfavorable to the accused only those parts which are favorable to the accused shall be given retroactive effect.
Although R.A. No.8294, took effect on 6 July 1997, or after the crimes involved in the case at bar were committed in 1994, it is advantageous to the accused, hence it should be given retrospective application in so far as it spares the accused from a separate conviction to the crime of Illegal Possession of Firearm. (People vs. Candido, 383 SCRA 296)
Judicial decisions which are favorable to the accused who is not a habitual delinquent shall also be accorded retroactive effect.
If the new law fails to penalize the act, then the Court loses jurisdiction, as in effect, there is no crime existing.
INTERPRETATION IN CASE OF DOUBT
Where doubt exists, the penal law must be interpreted liberally in favor of the accused and strictly against the state. Thus a boy who killed his classmate on his ninth (9th) birthday and acting with discernment is not criminally liable since there is a doubt in the provision of the law. Article 12, par. 2 provides that a person under (9) years of age is exempt from criminal liability (even if he acted with discernment) while a person over nine(9) and under fifteen (15) years old is not exempt if he acted with discernment. So if the boy will kill his classmate when he was exactly nine(9) years old because it was his birthday, doubt would exist as to his criminal responsibility. He will be considered exempt as penal laws are to be interpreted liberally in favor of the accused. This is the Pro reo doctrine.
Under R.A. No. 9344, a child exactly fifteen years of age or below is exempt from criminal responsibility, if he is more than fifteen but below eighteen, he is exempt unless he acted with discernment.
The Supreme Court has always ruled that agrarian laws must be interpreted in favor of the grantees in order to give full force and effect to the clear intent of such law. (Estolas vs. Mabalot 381 SCRA 702)
However, when the law speaks in clear and categorical language, there is no room for interpretation, vacillation or equivocation – there is only room for application. (Cooperative Development Authority vs. Dolefil Agrarian
BOOK ONE
General Provisions Regarding the Date of Enforcement and Application of the Provisions of this Code, and Regarding the Offenses, the Person
Title One
FELONIES AND CIRCUMSTANCES WHICH AFFECT
CRIMINAL LIABILITY
CHAPTER ONE
FELONIES
Felonies are acts and omissions punishable by law. (Art. 3, par. 1) The word “felony” has been understood to mean an act or omission punished by the Code; it does not cover a crime punished by a special law. (Filipinas Life
Assurance Co. vs. Tolentino, SP-5858, October 1, 1976)
They are committed not only by means of deceit (dolo) – that is, when the act is performed with deliberate intent, but also by means of fault (culpa) meaning, when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. (Art. 3, pars. 2 and 3)
Felonies take the form of a positive act – like killing a person – Homicide or Murder, or taking unlawfully personal property – Theft or Robbery, or an omission or failure to perform an act, like failure to issue a receipt of a public officer entrusted with collection of taxes (Illegal Exaction) or failure to deliver within the prescribed time a person arrested (Delay in the Delivery of Detained Person). In felony by omission however, there must be a law requiring the doing or the performance of an act. Thus, mere passive presence at the scene of a crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy is not punishable. Where therefore R, about a meter away from M, her live-in partner, did not do anything despite M’s threat that he would burn the house which he actually put on fire, she can not be held criminally liable with M, there being no proof of conspiracy between them. (People vs. Silvestre & Atienza, 56 Phil. 358)
The act or omission however, must be punishable by laws. This is based on the maxim NULLUM CRIMEN NULLA POENA SINE LEGE – that is, “there is no crime where there is no law punishing it.”
CLASSIFICATION OF FELONIES
A. According to manner or mode of execution (Art. 3)
1. Intentional felonies – committed by means of deceit or malice. Example: Murder, Estafa
2. Culpable felonies – where the wrongful acts result from imprudence, negligence, lack of foresight or lack of skill Example: Homicide thru Reckless Imprudence or Reckless
Imprudence resulting to Homicide.
B. According to stage of execution (Art.6)
1. Consummated – when all the elements necessary for its execution and accomplishment are present.
2. 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.
3. Attempted – 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.
C. According to gravity (Art.9)
1. Grave felonies – those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive in accordance with Art. 25 of the Revised Penal Code.
Example: Rape, Parricide
2. Less Grave felonies – those which the law punishes with penalties which in their maximum period are correctional.
Example: Attempted Homicide, Illegal Discharge of Firearm 3. Light felonies – those infractions of law for the commission of
which the penalty of arresto menor or a fine not exceeding two hundred (P200.00) pesos, or both provided.
Example: Slight Physical Injuries, Alarm and Scandal under Article 155
While Article 3 classifies the crimes into Intentional and Culpable, a third class can be grouped with it – that its, those defined and penalized by special laws which include crimes punished by city or municipal ordinances. They are generally referred to as mala prohibita. As a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. The act alone, irrespective of the motives, constitutes the offense. Good faith is not defense.
Mala in se and Mala prohibita, distinguished
Mala in se are crimes which are wrong from their nature, such as
murder, theft, rape, etc., while those that are mala prohibita are wrong, merely because they are prohibited by statute, like Illegal Posession of Firearm or violation of the Ombus Election Law.
Crimes mala in se are those so serious in their effects on society as to call for the almost unanimous condemnation of its members, while crimes
mala prohibita are violations of mere rules of convenience designed to secure
When the acts however are inherently immoral, they are mala in se, even if punished under special law and before the actor can be held liable, there must be malice or criminal intent.
Thus, election inspectors and poll clerks who were tasked to transfer the names of excess voters in one precinct to a newly created precinct and because of pressures of work and fatigue, omitted some names of person, who then were not allowed to vote, when charged with violation of the Election Code, relied on good faith as a defense.
The CFI, reasoning that the offense is malum prohibitum and good faith is not a defense, convicted them. On appeal, the Court of Appeals in acquitting the accused ruled that the failure or omission to include a voter’s name in the registry list of voters is not only wrong because it is prohibited, it is wrong per se because it disenfranchises a voter and violated his constitutional right. To be held liable, the election inspectors and poll clerks, must act willfully and maliciously. (People vs. Sunico, et. al., C.A. 50 O.G.
5880)
INCURRENCE OF CRIMINAL LIABILITY Criminal liability shall be incurred:
(1)By any person committing a felony (delito) although the wrongful act done be different from that which he intended, and
(2)By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. (Art. 4)
This article does not mean to exclude offenders who are liable even if they do not fall under any of the situations spoken of in the said article. Thus, a person who committed a crime which he really intended is no doubt liable for that offense like, if A, intending to kill his father, shot him, he is liable for the death of his father. The opening sentence of Article 4 should have been: “Criminal liability shall also be incurred by.”
No. 1 speaks of a situation where a person was committing a felony but the consequence was not the one he had intended. He must, however, be perpetrating or committing an offense otherwise there can be no criminal liability. Thus, if A, in attempting to commit suicide, jumped out from the window of a four (4)-story building and fell on another person who was killed, you cannot hold him criminally liable for Intentional Homicide because he was not committing any felony at that time since committing suicide is not a felony.
There are three (3) scenarios under paragraph 1 of Article 4: A. Error in personae (mistake in the identity of the victim)
- Two (2) peace officers were ordered to arrest Balagtas, an escaped notorious convict, and proceeding to the latter’s house, saw a man sleeping with his back towards the door and fired at him but the man turned out to be Serapio Tecson, the Supreme Court ruled they are guilty of murder. (People vs. Oanis, et. al., 74 Phil. 257)
When they fired on the sleeping man without making any inquiry and believing him to be the notorious escapee, the peace officers were committing a felony. Their wrongful intent was to hit or kill Balagtas but the wrongful act that was done was the killing of Serapio Tecson. B. Aberratio ictus (mistake in the blow) – Thus, if X, intending to kill
Y, fired at the latter but the shot hit Y only superficially and killed Z, his own father, he (X) is criminally liable for Attempted Homicide with Parricide. When X shot Y, he was perpetrating a felony with the wrongful intent to kill Y. the wrongful act committed was the killing of his own father which he never intended. In People vs. Guillen, 85 Phil 307, the accused who threw a hand grenade at Pres. Roxas but killed Simeon Varela and injured several persons was found guilty of Murder with Assault and Multiple Attempted Murder.
C. Praeter intentionem (Injurious result is greater than that intended) –
Thus, if A slapped his wife who fell on the ground, her head hitting a hard pavement rendering her unconscious and thereafter died, A is liable for Parricide. When he slapped his wife, A was committing a felony. His wrongful intent is only to cause injury but the wrongful act done was greater – the killing of the spouse.
In U.S. vs. Marasigan, 27 Phil. 504, where the accused attacked the offended party with a knife, and in the process of warding off the same, his left hand was injured, severing the extensor tendon in one of the fingers, the Supreme Court held that the accused is criminally liable. The fact that the original condition of the finger could be restored by a surgical operation is immaterial and the victim is not obliged to submit to a surgical operation to relieve the accused of the natural and ordinary results of his crime.
The wrong done, however, must be the direct and natural consequence of the felonies act. Stated otherwise, the felony committed must be the proximate cause of the resulting injury. Proximate cause has been defined as “that 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.” (Vda. De Batacan, et. al. vs. Medina, 102 Phil. 181,
citing Vol. 38 of Am. Jur.)
In Bringas vs. People, et. al., 125 SCRA 687, where the conductor shouted “Lusacan, Lusacan” knowing that the train would reach the Lucasan Station full three (3) minutes more and deceased Martina Bool, a passenger, walked towards the left front door facing the direction of Tiaong, Quezon carrying a child with one hand and holding her baggage with another, and when the train that slowed down suddenly picked up speed causing Martina Bool and the three (3)-year-old child she was carrying to fall from the door causing their deaths, the Supreme Court said:
“The proximate cause of the death of the victims was the premature and erroneous announcement of the conductor. This announcement prompted the two (2) victims to stand and proceed to the nearest exit. Without said announcement, the victims would have been safely seated in their respective seats when the train jerked as it picked up speed. The connection between the premature and erroneous announcement of the accused and the deaths of the victims is direct and natural, unbroken by any intervening efficient causes.”
Even if other causes cooperated in producing the fatal result as long as the wound inflicted is dangerous, that is, calculated to destroy or endanger life, the actor is liable. This is true even though the immediate cause of death was erroneous or unskillful medical or surgical treatment, refusal of the victim to submit to surgical operation, or that the deceased was suffering from tuberculosis, heart disease or other internal malady or that the resulting injury was aggravated by infection. (See The Revised Penal Code, Book I by Luis B.
Reyes, citing U.S. vs. Marasigan, 27 Phil 504; People vs. Illustre, 54 Phil 594; People vs. Reyes, 61 Phil 341, People vs. Quianson, 62 Phil 162; and People vs. Red, C.A. 43 O.G. 8072)
There must, however, be no efficient intervening cause. In U.S. vs. Valdez, it was ruled that if a person against whom a criminal assault is directed, reasonably believes himself to be in danger of death or great bodily harm and in order to escape, jumps into the water, impelled by the instinct of self-preservation, from drowning owing to his possible inability to swim or the strength of the current. The inability to swim and the strong current can be considered intervening causes but not efficient ones since they are not acts or facts absolutely foreign from the criminal act. On the other hand, in People vs.
Rockwell, 39 Mich. 503, an American case, the assailant was not held
responsible for the death of a person whom he knocked down with his fist but who was jumped on by a nearby horse killing him, because the act of the horse constitutes an efficient intervening cause.
Impossible Crime
An act performed with malice which would have been an offense against person or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. This is the only crime provided for in Book I of the Revised Penal Code. The Court having in mind the social danger and the degree of criminality shown by the offender shall impose the penalty of arresto mayor or a fine ranging from two hundred (P200.00) to five hundred (P500.00). (Art. 59, RPC)
The requisites are:
A. The act performed would be an offense against persons or property like Parricide, Murder, Homicide, Abortion, Duel or Physical Injuries, or Robbery, Brigandage, Theft, Usurpation, Culpable Insolvency, Estafa and Other Deceits, Chattel Mortgage, Arson and Malicious Mischief. B. That the act was done with evil intent.
C. That its accomplishment is inherently impossible or that the means employed is either inadequate or ineffectual.
Examples: Inherent Impossibility (Legal and Physical)
A saw B lying down whom he thought was only sleeping. So with intent to kill, he stabbed B several times on his chest. It turned out that B had been dead twenty (20) or thirty (30) minutes ago.
Legal Impossibility
X stole the ring which Y inadvertently left on his desk. It turned out that the said ring was the one X lost two(2) days ago.
Physical Impossibility
A, B, C, D & E, all armed, proceeded to the house of X whereupon A pointed to the room that X used to occupy and all fired at the said room. Nobody was hit as no one was inside the room. This is a case of Impossible Crime to Commit Murder: (Intod vs. Court of Appeals, et. al., 215 SCRA 52)
A saw a beautiful lady lying down already dead, but thinking that she was only sleeping, undressed and had sex with her. This is an Impossible Crime to Commit Rape considering that under R.A. No. 8353, the crime rape has been reclassified as an offense against persons, no longer a crime against chastity.
Ineffectual means – Giving a person a drink mixed with sugar which accused believed to be poison
Inadequate means – If it were really poison, the quantity is not sufficient to kill.
In case of inadequate means, the intended victim should not suffer any injury, otherwise the crime could be attempted or frustrated homicide or murder as the case maybe.
Is There A Common Law Crime in the Philippines?
No, as the par. 1 of Art. 5, RPC provides that whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, that is, dismiss the case, and shall report to the Chief Executive through the Department of Justice, the reasons which induced the court to believe that said act should be made the subject of penal legislation.
B.P. Blg. 22 is a product of this article, considering the difficulty securing a conviction for Estafa committed by issuing a postdated check under Art. 315, par. 2[d] since the defense of having been issued in payment of a pre-existing obligation has always come out as a ready-made defense. Under this law, even if the dishonored check was issued in payment of a pre-existing obligation, and the drawer or maker commits no deceit, he is criminally liable.
The elements of the offense under B.P. Blg. 22 are (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer and issuer knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason, had not the drawer without any valid reason, ordered the bank to stop payment. (Bautista vs. Court of Appeals, et. al., 360 SCRA 618)
DUTY OF COURT WHEN PENALTY IS EXCESSIVE Courts Are Not Concerned With Wisdom, Efficacy Or Morality Of Laws
The court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. (Art.
5, par. 2, RPC)
A daughter who killed her father while he was sleeping because the latter had raped her, resulting in her pregnancy, should be punished with death by the court since Parricide is punishable by reclusion perpetua to death, and there is an aggravating circumstance of treachery. The ordinary mitigating circumstance of vindication of a grave offense, or passion or obfuscation will not affect the imposable penalty as the same is in indivisible penalty. (Art. 63) However, the Judge may write the President of the Philippines for the granting of Executive Clemency to the poor daughter on account of the circumstances of the case.
In People vs. Veneracion, 249 SCRA 244, it was ruled:
“We are aware of the trial judge’s misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one but it is a matter upon which judges have no choice.”
STAGES OF EXECUTION
Felonies could be attempted, frustrated or consummated. It is
consummated when all the elements necessary for its execution and
accomplishment are present. (Art. 6, par. 1) Thus, if A, intending to kill B, shoots the latter to death, the crime is consummated Homicide or Murder, as the case may be.
A felony 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. (Ibid.) In the example above, if A hit B on a vital portion of the body which injury could cause the death of B but because of timely medical attention B did not die, this is a case of Frustrated Homicide or Frustrated Murder.
There is an attempt when the offender commences the commission of a felony directly by overt acts, 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 (par. 3, Ibid.) So, if in the above-cited example, A shot B but missed or hit B only on a superficial part of his body which would could not cause B’s death, A is liable only for Attempted Homicide or Attempted Murder. In the same vein, if A poked a gun at B and squeezed the trigger but it jammed and no bullet was fired, the attempted stage has been reached.
How To Properly Determine The Stage Of Execution
In determining whether the felony is attempted, frustrated or consummated, it is important to consider (1) the nature of the crime; (2) the elements constituting the offense; (3) the manner of committing the same.
Thus, considering the nature of the crime of Arson when a building is set on fire, it is not necessary that it should be entirely consumed in order to constitute the consummated stage, nor is it affected by the prompt extinction of the fire. (U.S. vs. Po Chengco, 23 Phil. 487)
Where the offender is about to set on fire a building but was apprehended before any portion gets burned, it would be Attempted Arson. Where rags and jute sacks soaked in gasoline and placed near the house that the offender intends to burn, were put on fire before any part of the house catches fire, the crime would be Frustrated Arson.
With respect to Theft, the same is consummated once the offender takes or gets hold of the material possession of the property with intent to gain. It is not necessary that he be able to carry it away. Thus, the accused who abstracted a leather belt from a Japanese tourist and placed it in the drawer of his desk, he being an inspector of the Bureau of Customs, is guilty of Consummated Theft. (U.S. vs. Adiao, 38 Phil. 754) So also, where the accused, after untying a carabao from a tree near the offended party’s house, was apprehended after pulling the carabao away by about two (2) or three (3) meters, the crime is Consummated Qualified Theft. In Valenzuela vs. People (June 2007), the Supreme Court held that there is no such crime as Frustrated theft ruling out that before the offender takes hold of the personal property with intent to gain, it is attempted, once he takes hold of it, it is consummated. He need not be able to carry it away.
This is to be distinguished from Estafa where damage to the offended party is one of the elements to consummate it. In U.S. vs. Dominguez, 41 Phil. 408, the accused, a salesman was held liable only for Frustrated Estafa even if the proceeds of the sale which he failed to turn over to the cashier was found out to be in his pocket. There was no damage yet to the owner of the store because of the timely discovery.
In Robbery with force Upon Things (Arts. 299 or 302), where the accused had entered the building or house, and had removed the property he intended to steal but was apprehended before he could get out, the crime is Frustrated Robbery. (People vs. Jose Del Rosario, C.A. 46 O.G. 332) If he was caught in the act of removing the property, the crime would be Attempted Robbery. If he was able to bring the property out of the house or building, he would be guilty of Consummated Robbery.
Anent the manner of committing crime, there are offenses which are consummated in one instant and the act cannot be split into parts to be categorized as attempted or frustrated like Slander or Libel. They are called Formal Crimes.
There are also crimes which are consummated by mere attempt, proposal or overt act. Thus, the crime of Flight to Enemy’s Country (Art.121) is consummated by mere attempt. In Abuses Against Chastity (Art. 245), mere solicitation or proposal consummates the offense. So also, Art. 185 (Machinations in Public Auctions) which punishes any person who shall solicit
any gift or promise as a consideration for refraining from taking part in any public auction.
In material crimes like Homicide, Rape, Murder, etc., there are three (3) stages of execution. Thus, if A would stab or shoot B, missing him or injuring him only superficially, the crime is Attempted Homicide or Murder; but if he hit B and inflicted injuries which otherwise would have been fatal were it not for timely medical attention, it is Frustrated; if B dies, the case is Consummated Homicide or Murder.
In the crime of rape, the accused who placed himself on top of a woman, raising her skirt and unbuttoning his pants, the endeavor to have sex with her very apparent, is guilty of Attempted Rape.
Note: (If the effort to have sex is not clear, the crime is only Acts of Lasciviousness)
On the other hand, entry on the labia or lips of the female organ by the penis, even without rupture of the hymen or laceration of the vagina, consummates the crime. (People vs. Tayabas,62 Phil. 559; People vs. Royeras, 56 SCRA 666; People vs. Amores, 58 SCRA 505)
This brings us to the question of Frustrated Rape. In People vs. Orita, 184 SCRA 105, the Supreme Court said:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment all the essential elements of the offense have been accomplished xxx the felony is consummated. xxx Any penetration of the female organ by the male organ is sufficient. xxx Necessarily, rape is attempted if there is no penetration of the female organ because not all acts of execution was performed. The offender merely commended the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
The court continued that the case of People vs. Erina,50 Phil. 998, where the accused was found guilty of Frustrated Rape, appears to be a “stray” decision in as much as it has not been reiterated in their subsequent decisions, and that the particular provision on Frustrated Rape in Art. 335 as amended by R.A. No.2632 and R.A. No. 4111 is a dead provision prompted probably by the Erina case. (NOTE: R.A. No.7659, Sec. 11 also contains the provision that when the Rape is attempted or frustrated and a Homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death). In People vs. Aca-ac,357 SCRA, it was the ruling of the Supreme Court that there is no such crime as Frustrated Rape.
LIGHT FELONIES
Light felonies are punishable only when they have been consummated, with the exception of those committed against person or property. Thus, a person who, within any town or public place, attempts to fire or to discharge his gun is not criminally liable even if his acts would fall under Art. 155 punishing Alarms and Scandals in its attempted stage as this light felony is a crime against public order.
Likewise, in light felonies, only the principals and accomplices are liable (Art. 16) so that a policeman who assists in the escape of a person who slightly injured another (Slight Physical Injuries) is not liable. (NOTE: See P.D. No. 1829 however)
CONSPIRACY AND PROPOSAL TO COMMIT FELONY
Conspiracy and Proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefore. (Art. 8. par. 1)
Conspiracy to commit a felony as well as Proposal to commit a felony is, generally speaking, not crimes. As such, they are not punishable. Thus, although conspiracy to murder a person is apparent, the conspirators can not be held criminally liable because there is no law punishing Conspiracy to Commit Murder.
If what was done however was Conspiracy to Commit Rebellion, then the conspirators are liable because there is a law that punishes Conspiracy to Commit Rebellion. (Art. 136) The same is true with Proposal to commit a felony. Unless there is a law that punishes Proposal to commit a crime, the proponents are not liable.
Art. 115 punishes Conspiracy and Proposal to Commit Treason, while Sec. 5 of R.A. No. 6968 penalizes Conspiracy and Proposal to Commit Coup d’etat. On the other hand, Conspiracy to Commit Sedition (not Proposal) is punishable under Art. 141, while Sec. 8 of P.D. No. 1613 punishes Conspiracy (not Proposal) to Commit Arson.
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. (par. 2, Ibid.) It could be evidenced by a written agreement among the conspirators or by their verbal covenant, or it could be inferred from the conduct of the accused before, during and after the commission of the crime. People vs. Manuel,234 SCRA 532)
There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. (par. 3, Ibid.) To constitute proposal, in law, the proponent himself must be determined to commit the crime so that if he only aired his grievances against the government and made suggestions on how to fight the authorities, he can not be considered liable for Proposal to Commit Rebellion.
Under Section 7 of P.D. No. 1613. Conspiracy to commit Arson shall be punished by prision mayor in its minimum period. It would seem that like in Sedition there is no crime of Proposal to Commit Arson.
On matters of conspiracy, it is a settled rule that it need not be proved by direct evidence prior agreement on the commission of the crime as the same can be inferred from the conduct of the accused before, during and after the perpetration of the offense showing that all the accused acted in unison with each other, evincing a common purpose or design. ( See People vs. Pablo,349 SCRA 79)
OFFENSES NOT SUBJECT TO THE CODE Special Laws
Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. (Art. 10)
Thus, in case of conflict between the provisions of the special laws and those of the Revised Penal Code, the former shall prevail. The provisions of the latter however shall be supplementary to special laws whenever applicable. In People vs. Simon,234 SCRA 555, citing People vs. Macatanda,109 SCRA 35, it was held:
“While these are special laws, the fact that the penalties thereunder are those provided for in the Revised Penal Code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express, or implicit proscription in these special laws.”
CHAPTER TWO
CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
There are five (5) circumstances affecting the criminal liability of an individual. They are justifying, exempting, mitigating, aggravating, and alternative circumstance. (Arts. 11, 12, 13, 14, and 15)
JUSTIFYING CIRCUMSTANCES 1. Self-Defense
No. 1 in justifying circumstances is SELF-DEFENSE. Thus, anyone who acts in defense of his person or rights incurs no criminal liability provided that the following circumstances concur:
(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.
This includes defense of honor, defense of home as defense of property. Unlawful aggression on the part of the injured or the victim is the first
element of self-defense. This is and indispensable requisite even in incomplete
self-defense. (People vs. Deopante,G.R. No. 102772, October 30, 1996) Without this requisite, we can not speak of complete self-defense as a justifying circumstance, or incomplete self-defense as a mitigating circumstance. (Art. 13, par. 1)
Unlawful Aggressio means an assault or attack, or a threat in an
imminent and immediate manner which places the defendant’s life in actual peril. (Philippine Law Dictionary by Moreno, 3rd Ed., 1980) There must be an actual assault or a threat but in case of the latter, it must be imminent and positively strong to palpably show the wrongful intent to cause injury. Mere intimidating attitude is not sufficient. thus, barging on the door of the accused with shouts of threats to kill can not be considered Unlawful Aggression. (People vs. Trison, G.R. No. 106345-46, September 16, 1996) Likewise, if the accused agrees to fight, Unlawful Aggression is wanting because by accepting the challenge and immediately approaching the victim, the accused places himself in an unlawful status and himself becomes an unlawful aggressor, as aggression as an incident of fight is bound to arise. (People vs. Galas,G.R. No.
114007,September 24, 1996)
To give rise to self-defense, the aggression must not be a lawful one like the attack of a husband against a paramour of his wife whom he surprised in an uncompromising situation, or a chief of police who threw stones at the
accused who was running away to elude arrest for a crime committed in his presence. Their aggression was not considered unlawful.
Unlawful Aggression contemplates an actual, sudden and unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude but when its author does not persist anymore in his purpose or when he discontinues his attitude to the extent that the object of his attack is no longer in peril, it ceases to be an unlawful aggression and does not warrant self-defense. (People vs. Geneblazo,361 SCRA 573)
The second element is Reasonable Necessity of the Means Employed to prevent or repel it. There must be a reasonable necessity of the course taken, and reasonable necessity of the means used. In People vs. Jaurigue, 76 Phil.
174, while it was ruled that when the deceased placed his hand on the upper
thigh of the lady accused, there was unlawful aggression but when the latter immediately stabbed him with a knife killing him, there was no reasonable necessity of her course of action since in the chapel where the killing took place, there were many people including her father, it was well lighted and there is no possibility of her being raped. Consequently, she was convicted.
When the deceased laid down his gun, unlawful aggression had already ceased and it was no longer necessary for accused-appellant to have fired successfully the way he did at the victim. (People vs. Rabanal, 387 SCRA 685)
The means employed by the person making a defense must be rationally necessary to prevent or repeal an unlawful aggression. What the law requires is a rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct more than the reason that moves or impels the defense.
On the other hand, whether the means employed is reasonable or not depends upon the nature and quality of the weapon used by the aggressor, his physical condition, character and size, as well as of the person defending and the place and occasion of the assault. (See The Revised Penal Code Book 1 by Luis B. Reyes, 1993 Ed., p. 176)
Self-defense and accidental shooting cannot be both be raised by the accused as a defense. If accused is acting in self-defense, that he could only have deliberately used the gun to repel the alleged aggression. On the other hand, if the shooting was accidental, then it was immaterial whether the accused employed reasonable means to repel the alleged aggression. (People
vs. Florague, 360 SCRA 587)
The third element – Lack of Sufficient Provocation on the part of the person defending himself – pictures a situation where there was total lack of provocation on the part of the accused when he was attacked without any reason at all, or when the accused gave provocation but is not sufficient for the offended party to assault him, or where provocation is sufficient but is not immediate to the act (U.S. vs. Laurel, 22 Phil. 252) or where the sufficient provocation was given by the companion of the accused of which the latter had no part.
Under the principle of Battered-Woman Syndrome, while there was an inkling that this syndrome could be considered as a viable plea within the concept of self-defense (People vs.Genosa,341 SCRA), the Supreme Court in
an en banc decision has ruled that the same can not be considered a form of self-defense. It would only imagine the woman accused liability.
However, in Sec. 26 of R.A. No. 9262, it is provided that victim-survivors of Battered Woman Syndrome do not incur any criminal and civil liabilities despite the absence of the elements of self-defense provided for in the Revised Penal Code.
In effect, the same has effectively amended par. 1 of Art. 11 of the Revised Penal Code.
2. Defense of Relatives
The law speaks only of spouse; ascendants, meaning parents, grandparents, great grandparents, etc.; descendants, meaning children, grandchildren, great grandchildren, etc.; brothers and sisters; relatives by affinity in the same degrees, that is, parents-in-law, children-in-law, and brothers or sisters-in-law as relatives. Outside of these people, the persons are considered, in criminal law, as strangers.
There are three (3) requisites – first is unlawful aggression, second is reasonable necessity of the means employed to prevent or repel it, and third is that the relative being defended gave no provocation. Anent the third requisite however, the law gives a leeway – that is, even if the relative being defended gave the provocation, if the relative making the defense had no part therein, he can successfully invoke defense of relative.
3. Defense of Stranger
Outside of himself, and those relatives mentioned in Art. 11, par. 2, any person who acts in defense of the person or rights of another can legitimately claim the defense of stranger. The first two (2) requisites however, that is, unlawful aggression, and reasonable necessity of the means employed to prevent or repel it, must be present. The law adds another requisite, which is, that the person is defending be not induced by revenge, resentment or other evil motive.
Thus, one who, seeing his seventy-eight (78)-year-old neighbor held down on the ground by a strong and robust young man and in serious danger of being throttled, furnished the person assaulted with a gaff, as he himself is also old and may not be able to cope with the assailant, with which his neighbor used to inflict a mortal wound on the assailant is entitled to the claim of defense of strangers. (U.S. vs. Subingsubing, 31 Phil. 376)
4. Avoidance of Greater Evil or Injury/State of Necessity
The fourth justifying circumstance speaks of a person who, in order to avoid an evil or injury, does a act which causes damage to another. The following however must be present: first, that the evil sought to be avoided actually exists, second, that the injury feared be greater than that done to avoid it, and third, that there be no other practical and less harmful means of preventing it. (Art. 11, par. 4)
The doctor who had to kill a foetus to save the mother where both could not be saved, and he is running out of time, may invoke this defense. This is different however from Euthanasia – the so-called mercy-killing which is not justified in our jusrisdiction. A captain of a ship caught by storm and huge waves in his journey, who ordered the jettison of cargoes against the will of the owners to prevent the ship from sinking and save the passengers, can shield criminal liability behind this provision.
5. Fulfillment of Duty or Exercise of Right or Office
The fifth justifying circumstances provides that no criminal liability shall be incurred by any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.
Thus, a policeman who killed an escaping prisoner after making the warning shot and shouting to him not to continue with his escape, and who prior to that even attacked him with a spear, acted in lawful fulfillment of duty.
A person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office.
But we must that there are two (2) requisites for this justifying circumstance: (a) that the offender acted in the performance of a duty or in lawful exercise of a right, and (b) that the injury or offense committed be the necessary consequence of the due performance of such right or office. (People vs.Belbes, 334 SCRA 161)
So also, if A hit B with his fist inside a running passenger jeep because B was snatching his (A’s) watch, and as a consequence B fell from the jeep, hi head hitting the hard pavement causing his death, A acted in the lawful
exercise of right. And the executioner of convicts sentenced to die, who
would make the lethal injection in the Bureau of Corrections on the day and time scheduled by the Court, does so in the lawful exercise of an office. 6. Obedience to an Order of a Superior
It is also a justified act if a person acts in obedience to an order issued by a superior for some lawful purpose. (Art. 11, par. 6)
This justifying circumstance needs an order issued by a superior officer of the accused which was for a lawful purpose and the latter obeyed the order. Where the order of arrest was issued by his superior for the purpose of delivering the person’s subject of the order to the commanding officer who made the request that they be apprehended and arrested for a crime they committed but because they resisted arrest, the accused killed them, this justifying circumstance is applicable.
The order however of guerilla officer for the killing of a civilian is not lawful.
EXEMPTING CIRCUMSTANCES
Article 12 enumerates persons who are exempted from criminal liability. Unlike in justifying circumstances, here there was a crime committed, there is a criminal but for reasons of public policy, no penal liability shall be inflicted on him.
The following are exempt from criminal liability:
1. An Imbecile or an Insane Person Unless the Latter has Acted During a Lucid Interval.
In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act. Mere abnormality of the mental faculties will not exclude imputability. The accused must be “so insane as to be incapable of entertaining a criminal intent.” He must be deprived of reason and act without the least discernment because there is a complete absence of the power to discern or a total deprivation of the freedom of the will.
Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance must prove it by clear and positive evidence. And the evidence on this point must refer to the time preceding the act under prosecution or to the very moment of its execution. (See
People vs. Estrada, 333 SCRA 699; also People vs. Valledor, 383 SCRA 653)
An imbecile is a person marked by a mental deficiency while an insane person is one who has unsound mind or who suffers from mental disorder. An insane person may have suffered from mental disorder. An insane person may have lucid intervals but an imbecile has none. (People vs.
Ambal, 100 SCRA 325, citing 1 Viada, Codigo Penal, 4th. Ed.)
Imbecility is defined as a feeble-mindedness or a mental condition approaching that of one who is insane. It is analogous to childishness and dotage. An imbecile within the meaning of Article 12 is one completely deprived of reason or discernment and freedom of will at the time of committing the crime. While advanced in age, he has a mental development of children between two (2) and seven (7) years of age. The reasoning of the accused that he resorted to cutting grass instead of guarding his victim could hardly be indicative of imbecility. Rather, it may be considered negligence. (People vs. Nunez, G.R. No. 412429-30, July 23,
1947)
In People vs. Dungo, 199 SCRA 860, it was held that one who suffers from insanity at the time of the commission of the offense can not in a legal sense entertain a criminal intent and cannot be held criminally responsible for his acts. In People vs. Formigones, 87 Phil 658, the ruling was that, in order that a person could be regarded as an imbecile within the meaning of Art. 12 of the RPC so as to be exempt from criminal liability, he must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime.
Any deprivation therefore of reason or discernment at the time of the trial of the case is not an exempting circumstance.
2. A Person Fifteen Years of Age and Below. (R.A. No. 9344)
3. A Person Over Fifteen (15) above and under eighteen (18) Unless He Has Acted with Discernment (R.A. No. 9344)
It is clear therefore that even if a person has acted with discernment, if he is under fifteen (15) years of age, he is free from penal responsibility. On the other hand, if he is over fifteen (15) years of age but under eighteen (18), he will be held criminally liable if he acted with discernment.
An accused who knows the morality of his acts, or can fully appreciate the consequences of his actuation has acted with discernment which can be shown by the manner the crime was committed or his conduct after its commission.
4. Any Person Who, While Performing a Lawful Act With Due Care, Causes an Injury by Mere Accident Without Fault or Intention of Causing It.
So, one driving car duly licensed to do so, in the proper lane and within the limits prescribed by law, who hits a boy who suddenly darted into the street is exempted from criminal liability due to accident.
Problem:
A, armed with a .38 caliber and B, who has no weapon, robbed a store; but in the course thereof, were seen by P, a policeman who was armed with .45 caliber gun, and when he demanded for the surrender of A and B, A shot him but missed, and so P repelled the attack. In the exchange of shots, A was killed, together with B, and C the owner of the store. The three were killed by the bullets fired from a .45 caliber. In such case, P is not liable for the death of A due to
self-defense as all the three (3) elements were present. He is also not
liable for the death of B, not because of self-defense because the latter being weaponless can not commit unlawful aggression, but because of
performance of duty. For the death of C, the store owner, P, is also not
criminally liable obviously not because of self-defense nor of fulfillment of duty but because of accident provided for in par. 1 of Art. 12.
5. Any Person Who Acts Under the Compulsion of an Irresistible Force. Thus, a person who was compelled to bury the body of one who was murdered by the killers, striking him with the butts of their guns, threatening to kill him too, is not criminally liable as an accessory. 6. Any Person Who Acts Under the Impulse of an Uncontrollable Fear of
an Equal or Greater Injury.
If A with a revolver in his hand threw a knife at B, and ordered him to kill C, a person sleeping nearby otherwise he will shoot B, the latter can ask exemption from criminal liability if he stabbed C to death.
7. Any Person Who Fails to Perform an Act Required by Law When Prevented by Some Lawful or Insuperable Cause.
A policeman who arrested a man who had just killed another in his (policeman’s) presence, at 6:00 p.m. of a Saturday in a small town in the province, is not liable under Article 125 of the RPC when he filed the criminal complaint only in the morning of the following Monday [more than thirty-six (36) hours as required by the said Article] since there was
no court where to file the complaint. He was prevented by a lawful or insuperable cause to comply with the requirement of the law.
Absolutory Causes
Absolutory causes are those where the actors are granted freedom from charge or immunity from burden for reasons of public policy and sentiment even if their acts constitute a crime.
They are:
1. Accessories with respect to spouse, ascendants, descendants, brothers, sisters or relatives by affinity within the same degrees except those falling under par.1 of Art. 19. (Art. 20, RPC)
2. Spouse or parents who inflicted Less Serious or Slight Physical Injuries on his/her spouse or their daughters living with them, whom they surprised in the act of sexual intercourse with another.
(Art. 247, RPC)
3. Any person who entered another’s dwelling to prevent serious harm to himself, the occupants of the dwelling or a third person or rendered some service to humanity or justice, or entered cafes, taverns, inns and other public houses while the same were open.
(Art. 280, par. 3)
4. In case of theft, swindling or malicious mischief committed or caused mutually by spouses, ascendants and descendants or relatives by affinity in the same line, and brothers and sisters and brothers-in-law and sisters-in-law if living together. (Art. 332) 5. Instigation, where the actor otherwise innocent, was induced by a
public officer to commit the crime such that the latter himself becomes a principal by inducement or by indispensable cooperation.
[NOTE: Entrapment however is not an absolutory cause. In Entrapment, ways and means are resorted to by the authorities to trap and capture the actor, already a law-breaker, in the execution of his criminal activities. Buy-bust operation is a form of entrapment and the accused entrapped is liable. (People vs. Juma, 220 SCRA 432; People vs. Nicolas, et.
al., G.R. No. 110116, February 1, 1995)
MITIGATING CIRCUMSTANCES
Mitigating circumstances are those which do not entirely free the actor from penal responsibility but serve only to lessen or reduce the penalty imposable. They are two (2) classes – Ordinary Mitigating which can be offset by aggravating circumstances, and which if present tends to reduce the penalty by periods, and Privileged Mitigating which can not be offset by any aggravating circumstance, and which if present tends to reduce the penalty by degrees.
The following are mitigating circumstances:
1. Incomplete justifying and incomplete exempting circumstances. 2. When the offender is under eighteen (18) years or over seventy (70)
years of age.
3. When the offender had no intention to commit so grave a wrong as that committed.
4. When there was sufficient provocation or threat on the part of the offended party that immediately preceded the act.
5. When the act was committed in the immediate vindication of a grave offense to the person committing the felony, his spouse, ascendants, descendants, brothers or sisters or relatives by affinity within the same degrees.
6. When the accused acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
7. Voluntary surrender to person in authority or his agents by the accused, or if he voluntarily confessed his guilt before the court prior to prosecution’s presentation of evidence.
8. If the offender is deaf and dumb, blind in two eyes, or otherwise suffering from physical defect which restricts his means of action, defense or communication with his fellow beings.
9. Such illness on the part of the offender as would diminish the exercise of his will power without depriving him of the consciousness of his acts.
10. Any other circumstances of a similar nature or analogous to those above-mentioned.
1. Incomplete Justifying and Incomplete Exempting Circumstances In incomplete self-defense, incomplete self-defense of relative and incomplete self-defense of stranger, the element Unlawful Aggression on the part of the victim is an indispensable requisite. It is the second (2nd) or the third (3rd) element that is lacking, otherwise there is no incomplete justification as a mitigating circumstance under par.1 of Art. 13.
An illustration of incomplete exempting circumstances of uncontrollable fear is one where the accused, while sleeping, was awakened by a shot, and because he was expecting an attack by a group of armed men, shot a man he saw in the dark who turned out to be unarmed innocent person. (People vs. Magpantay, C.A. 46 O.G. 1655) He acted under an impulse of a fear which is not uncontrollable although it promised an equal or greater injury
2. Under eighteen (18) or over seventy (70) Years Old
For purposes of criminal liability, the age of a person may be divided as follows:
1. nine (9) years or below – exempted from penal responsibility; 2. over nine (9) and below fifteen (15) – conditional – liability –
that is, if he acted without discernment, he is exempted.
3. over nine (9) and below fifteen (15) acting with discernment –
mitigated liability at least by two (2) degrees lower. (Art. 68,
par.1)
4. over fifteen (15) but below eighteen (18) years of age – mitigated liability by one degree lower. (Art. 68, par.2)
5. over eighteen (18) and below seventy (70) years of age – complete criminal liability.
6. over seventy (70) years of age – mitigated liability.
3. Lack of Intent to Commit so Grave a Wrong
Intention partakes of the nature of a mental process, an internal act. It can be gathered from and determined by the conduct and external acts of the offender and the results of the act themselves. So, the accused who was charged with Rape with Homicide, and who admitted that “My only intention was to abuse her, but when she tried to shout I covered her mouth and choked her, and later I found that because of that she died,” is not entitled to this mitigating circumstance, for he knew that the girl was very tender in age [six (6) years old], weak in body, helpless and defenseless and he ought to know the natural and inevitable result of the act of strangulation. (People vs. Yu, 1 SCRA 199)
A husband who slaps his wife who fell down her head hitting a hard pavement and died as a result can avail of this mitigating circumstance.
But this attenuating circumstance is not applicable in case of several accused where conspiracy was proven for in conspiracy the act of one is the act of all. (People vs. Bautista, 38 SCRA 184)
4. Sufficient Provocation or Threat
The sufficient provocation or threat on the part of the victim must immediately precede the act of the offender. A killed his father-in-law who warned him to be careful because he would kill him before the end of the day, after he told said father-in-law that he can not live anymore with his adulterous wife, the daughter of the deceased, whom he caught in
flagrante with her paramour. He is entitled to this mitigating circumstance.
(People vs. Rivero, 242 SCRA 354) He could have interpreted this warning as a serious threat which prompted him to decide to eliminate his father-in-law before he could carry out such threat.