Criminal Law I

ART.1 RPC When Act Takes Effect February 1, 1932

Criminal law is that branch or division of municipal law which

- defines crimes,

- treats of their nature and

- provides for their punishment.

Characteristics of Criminal Law:

1. General binding on all persons who reside or sojourn in

the Philippines

Exceptions:

a. Treaty Stipulation

b. Laws of Preferential Application

c. Principles of Public International Law

Example

(1). sovereigns and other chiefs of state

(2). Ambassadors, ministers plenipotentiary, minister resident

and charges daffaires (BUT consuls, vice-consuls and

other foreign commercial representatives CANNOT claim the

privileges and immunities accorded to ambassadors and

ministers.)

2. Territorial penal laws of the Philippines are enforceable

only within its territory

Exceptions: (Art. 2 of RPC binding even on crimes

committed outside the Philippines)

a. offense committed while on a Philippine ship or airship

b. forging or counterfeiting any coin or

currency note of the Philippines or obligations and the

securities issued by the Government

c. introduction into the country of the above-mentioned

obligations and securities

d. while being public officers and employees, an offense

committed in the exercise of their functions

e. crimes against national security and the law of the

nations defined in Title One of Book Two

3. Prospective the law does not have any retroactive effect.

Exception: when the law is favorable to the accused

Exceptions to the Exception:

a. The new law is expressly made inapplicable to pending

actions or existing causes of action

b. Offender is a habitual criminal

Theories of Criminal Law:

1. Classical Theory basis is mans free will to choose between

good and evil, that is why more stress is placed upon the

result of the felonious act than upon the criminal himself.

The purpose of penalty is retribution. The RPC is generally

governed by this theory.

2. Positivist Theory basis is the sum of social and economic

phenomena which conditions man to do wrong in spite of or

contrary to his volition. This is exemplified in the provisions

on impossible crimes and habitual delinquency.

3. Mixed Theory combination of the classical and positivist

theories wherein crimes that are economic and social in nature

should be dealt in a positive manner. The law is thus

more compassionate.

Construction of Penal Laws:

1. Liberally construed in favor of offender

Ex:

a. the offender must clearly fall within the terms of the law

b. an act is criminal only when made so by the statute

2. In cases of conflict with official translation, original

Spanish text is controlling,

3. No interpretation by analogy.

LIMITATIONS ON POWER OF CONGRESS TO ENACT PENAL

LAWS

1. ex post facto law

2. bill of attainder

3. law that violates the equal protection clause

of the constitution

4. law which imposes cruel and unusual punishments nor excessive

fines

R.A. No. 75 - penalizes acts which would impair the proper

observance by the Republic and inhabitants of the Philippines of

the immunities, rights, and privileges of duly accredited

foreign diplomatic representatives in the Philippines

Art. 2. Application of RPC Provisions

Application of its provisions. Except as provided in the treaties

and laws

of preferential application, the provisions of this Code shall be

enforced not

only within the Philippine Archipelago, including its atmosphere, its

interior

waters and maritime zone, but also outside of its jurisdiction,

against

those who:

1. Should commit an offense while on a Philippine ship or

airship

RULES:

1. Philippine vessel or airship Philippine law shall apply to

offenses committed in vessels registered with the Philippine

Bureau of Customs. It is the registration, not the

citizenship of the owner which matters.

2. Foreign vessel

a. French Rule

General Rule: Crimes committed aboard a foreign vessel

within the territorial waters of a country are NOT

triable in the courts of such country.

Exception: commission affects the peace and security of

the territory, or the safety of the state is endangered.

b. English Rule

General Rule: Crimes committed aboard a foreign vessel

within the territorial waters of a country are triable

in the courts of such country.

Exception: When the crime merely affects things within

the vessel or it refers to the internal management

thereof.

This is applicable in the Philippines.

When the crime is committed in a war vessel of a foreign

country, the NATIONALITY of the vessel will ALWAYS

determine jurisdiction because war vessels are part of

the sovereignty of the country to whose navel

force they belong.

These rules are NOT applicable if the vessel is on the

high seas when the crime was committed, in these cases,

the laws of the nationality of the ship will always apply.

The country of registry determines the nationality of

the vessel, NOT ITS OWNERSHIP. A Filipino-owned

vessel registered in China must fly the Chinese flag.

Extraterritorial refers to the application of the

Revised Penal Code outside the Philippines territory:

Three International Theories on Aerial Jurisdiction

a. Free Zone Theory

The atmosphere over the country is free and not

subject to the jurisdiction of the subjacent state,

except for the protection of its national security

and public order.

b. Relative Theory

The subjacent state exercises jurisdiction over the

atmosphere only to the extent that it can effectively

exercise control thereof.

c. Absolute Theory

1. The subjacent state has complete jurisdiction

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over the atmosphere above it subject only to the

innocent passage by aircraft of a foreign country.

NOTE: The Philippines adopts this theory.

2. Under this theory, if the crime is committed in an

aircraft, no matter how high, as long as it can be

established that it is within the Philippine

atmosphere, Philippine criminal law will govern.

2. Should forge or counterfeit any coin or currency note of

the

Philippine Islands or obligations and securities issued by

the Government of the Philippine Islands;

1. The forgery is committed abroad

2. And it refers to Philippine coin, currency note,

obligation and security

3. Should be liable for acts connected with the introduction

into these islands of the obligations and securities

mentioned

in the presiding number;

4. While being public officers or employees, should commit

an

offense in the exercise of their functions; or

a) Those having to do with the discharge of their duties

in a foreign country.

b) The functions contemplated are those, which are, under

the law:

i) to be performed by the public officer

ii) in the Foreign Service of the Philippine government

iii) in a foreign country.

NOTE: The Revised Penal Code governs if the crime

(whether or not in relation to the exercise of

public functions) was committed within the

Philippine Embassy or within the embassy grounds

in a foreign country. This is because embassy

grounds are considered an extension of sovereignty.

Thus the crime is deemed to have been committed

in Philippine soil.

Illustration: A Philippine consulate official who is

validly married here in the Philippines and who marries

again in a foreign country cannot be prosecuted

here for bigamy because this is a crime not connected

with his official duties. However, if the second marriage

was celebrated within the Philippine embassy, he may be

prosecuted here, since it is as if he contracted the

marriage here in the Philippines.

5. Should commit any of the crimes against national

security and

the law of nations, defined in Title One of Book Two of this

Code.

1. Rebellion is not included.

2. Any crime against public order is under the jurisdiction

of the host country.

Art. 3. Felonies

Definitions - Acts and omissions punishable by law are felonies

(delitos).

Felonies are committed not only be means of deceit (dolo)

but also by means of fault (culpa).

There is deceit when the act is performed with deliberate intent

and there is fault when the wrongful act results from imprudence,

negligence, lack of foresight, or lack of skill.

Felonies acts and omissions punishable by the Revised Penal Code

Crime acts and omissions punishable by any law.

Act an overt or external act

Omission failure to perform a duty required by law

ELEMENTS OF FELONIES

a. There must be an act or omission

b. That the act or omission must be punishable by the RPC

c. That the act is performed or the commission incurred by means

of dolo or culpa

Dolo - deliberate intent.Must be coupled with freedom of action

and intelligence on the part of the offender as to the

act done by him.

Actus Reus - Physical act

Mens rea - a guilty mind, a guilty or wrongful purpose or

criminal intent.

Gravamen of the offense

Omission is a. the failure to perform a duty

b. required by law.

c. It is important that there is a law requiring

the performance of an act, if there is no

positive duty, there is no liability.

Examples: Omission

1. Failure to render assistance

2. Failure to issue receipt

3. non disclosure of knowledge of conspiracy

against the government.

NULLUM CRIMEN, NULLA POENA SINE LEGE There is no crime

when

there is no law punishing it.

Classification Of Felonies According To The Means By Which They Are

Committed:

1. Intentional Felonies- by means of deceit (dolo)

Requisites:

a. freedom

b. intelligence

c. intent.

MISTAKE OF FACT (Ignorantia Facti Excusat)misapprehension

of fact on the part of the person who caused injury to

another. He is not criminally liable.

Requisites:

a. the act done would have been lawful had the facts

been as the accused believed them to be

b. intention is lawful

c. mistake must be without fault or carelessness by

the accused

Example:

People v. Ah Chong (1910)

A houseboy who stabs his roommate in the dark,

honestly mistaking the latter to be a robber

responsible for a series of break-ins in the area,

and after crying out sufficient warnings and

believing himself to be under attack, cannot be

held criminally liable for homicide.

2. Culpable Felonies- by means of fault (culpa)

Requisites:

a. freedom

b. intelligence

c. negligence (lack of foresight) and imprudence (lack of skill)

ART.4 Criminal Liability

Par.1 Criminal liability for a felony committed different from

that intended to be committed

Requisites:

1. felony has been committed intentionally

2. injury or damage done to the other party is the direct,

natural and logical consequence of the felony

Hence, since he is still motivated by criminal intent,

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the offender is criminally liable in:

1. Error in personae mistake in identity

2. Abberatio ictus mistake in blow

3. Praetor intentionem - lack of intent to commit so

grave a wrong

PROXIMATE CAUSE the cause, which in the natural and

continuous sequence unbroken by any efficient intervening

cause, produces the injury, without which the result would

not have occurred

Par. 2 Impossible Crime

Requisites:

1. Act would have been an offense against persons or property.

2. There was criminal intent.

3. Accomplishment is inherently impossible; or inadequate

or ineffectual means are employed.

4. Act is not an actual violation of another provision of

the Code or of special law.

Impossible crime occurs when there is:

1. inherent impossibility to commit the crime

2. inadequate means to consummate the crime

3. ineffectual means to consummate the crime

Art. 5: Duty Of The Courts, Acts Not Covered By Law

Duty of the court in connection with acts which should

be repressed but which are not covered by the law, and in cases

of excessive penalties

Note: Paragraph 2 does not apply to crimes punishable by special

law, including profiteering, and illegal possession of firearms

or drugs. There can be no executive clemency for these crimes.

Article 5 covers two situations:

1. The court cannot convict the accused because the acts do not

constitute a crime.

a. The proper judgment is acquittal.

b. The court is mandated to report to the Chief Executive that

said act be made subject of penal legislation and why.

2. Where the court finds the penalty prescribed for the crime

too harsh considering the conditions surrounding the

commission of the crime,

a. The judge should impose the law.

b. The most that he could do is recommend to the Chief

Executive to grant executive clemency.

ART.6 Consummated, Frustrated, And Attempted Felonies

STAGES OF EXECUTION:

1. CONSUMMATED when all the elements necessary for

its execution

and accomplishment are present

2. FRUSTRATED

Elements:

a. offender performs all acts of execution

b. all these acts would produce the felony as a consequence

c. BUT the felony is NOT produced

d. by reason of causes independent of the will of the

perpetrator

3. ATTEMPTED

Elements:

a. offender commences the felony directly by overt acts

b. does not perform all acts which would produce the felony

c. his acts are not stopped by his own spontaneous desistance

Crimes, which do not admit of Frustrated and Attempted Stages:

1. Offenses punishable by Special Penal Laws, unless the law

provides otherwise

2. Formal crimes consummated in one instance (Ex: slander, adultery, etc.)

3. Impossible Crimes

4. Crimes consummated by mere attempt

(Ex: attempt to flee to an enemy country, treason, corruption of

minors)

5. Felonies by omission

6. Crimes committed by mere agreement (Ex: betting in sports:

ending,

corruption of public officers)

Crimes which do not admit of Frustrated Stage:

1. Rape

2. Bribery

3. Corruption of Public Officers

4. Adultery

5. Physical Injury

2 stages in the development of a crime:

1. Internal acts

- e.g. mere ideas of the mind

- not punishable

2. External acts

a. Preparatory acts - ordinarily not punishable except when

considered by law as independent crimes (e.g. Art. 304,

Possession of picklocks and similar tools)

b. Acts of Execution - punishable under the RPC

Attempted vs. Frustrated Felony

ART.7 When Light Felonies Are Punishable

General Rule: Punishable only when they have been consummated

Exception:

Even if not consummated, if committed against persons or property

Ex: slight physical injuries, theft, alteration of

boundary marks, malicious mischief, and intriguing

against honor.

Note: Only principals and accomplices are liable;

accessories are NOT liable even if committed against

persons or property.

ART.8 Conspiracy And Proposal To Commit Felony

CONSPIRACY

Requisites:

1. Two or more persons come to an agreement

2. For the commission of a felony

3. And they decide to commit it

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Concepts of Conspiracy:

1. As a crime in itself

Ex: conspiracy to commit rebellion, insurrection, treason,

sedition, coup d etat

2. Merely as a means to commit a crime

Requisites:

a. a prior and express agreement

b. participants acted in concert or simultaneously, which is

indicative of a meeting of the minds towards a

common criminal objective

Note: Conspiracy to commit a felony is different from

conspiracy as a manner of incurring criminal liability.

General Rule: Conspiracy to commit a felony is not punishable since

it is merely a preparatory act.

Exception: when the law specifically provides for

a penalty

Ex: rebellion, insurrection, sedition,

coup d etat

General Rule: The act of one is the act of all.

Exception: Unless one or some of the conspirators

committed some other crime which

is not part of the intended crime.

Exception to the exception: When the act

constitutes an indivisible offense.

People v. Abut, et al. (GR No. 137601, April 24, 2003)

OVERT ACTS IN CONSPIRACY MUST CONSIST OF:

1. Active participation in the actual commission of the crime

itself, or

2. Moral assistance to his co-conspirators by being present at

the time of the commission of the crime, or

3. Exerting a moral ascendance over the other co-conspirators

by moving them to execute or implement the criminal plan

PROPOSAL TO COMMIT A FELONY

Requisites:

1. A person has decided to commit a felony

2. And proposes its execution to some other person or persons

People vs. Nierra

If a co-conspirator merely cooperated in the commission of

the crime with insignificant or minimal acts, such co-conspirator

should be punished as an accomplice only.

The common notion is that when there is conspiracy involved,

the participants are punished as principals. This notion is

no longer absolute. The reason given is that penal laws

always favor a milder form of responsibility upon and offender.

Illustration:

There was a planned robbery, and the taxi driver was present

during the planning. The taxi driver agreed for the use of

his cab but said, I will bring you there, and after

committing the robbery I will return later. The taxi driver

brought the conspirators where the robbery would be committed.

After the robbery was finished, he took the conspirators

back to his taxi and brought them away. It was held that

the taxi driver was liable only as an accomplice. His

cooperation was not really indispensable. The robbers could

have engaged another taxi. The taxi driver did not really

stay during the commission of the robbery. At most,

what he only extended was his cooperation.

A conspiracy is possible even when participants are not known to each other. When several persons who do not know each

other simultaneously attack the victim, the act of one is the

act of all, regardless of the degree of injury inflicted by

any one of them. All will be liable for the consequences.

Do not think that participants are always known to each other.

The Supreme Court has ruled that one who desisted is not

criminally liable. As pointed out earlier, desistance is true

only in the attempted stage. Before this stage, there is only

a preparatory stage. Conspiracy is only in the preparatory stage..

Illustrations:

A thought of having her husband killed because the latter was

maltreating her. She hired some persons to kill him and

pointed at her husband. The goons got hold of her husband

and started mauling him. The wife took pity and shouted

for them to stop but the goons continued. The wife ran away.

The wife was prosecuted for parricide. But the Supreme Court

said that there was desistance so she is not criminally

liable.

Do not search for an agreement among the participants. If they

acted simultaneously to bring about their common intention,

conspiracy exists. And when conspiracy exists, do not consider

the degree of participation of each conspiracy because the act

of one is the act of all. As a general rule, they have equal

responsibility.

Illustration:

A, B and C have been courting the same lady for several years.

On several occasions, they even visited the lady on intervening

hours. Because of this, A, B and C became hostile with one

another.

One day, D invited the young lady and she accepted the invitation.

Eventually, the young lady agreed to marry D. When A, B and C

learned about this, they all stood up to leave the house of

the young lady feeling disappointed. When A looked back at the

young lady with D, he saw D laughing menacingly. At that

instance,

A stabbed D. C and B followed. In this case, it was held that

conspiracy was present

People v. Pangilinan,

Implied Conspiracy Conspiracy need not be direct but may be

inferred

from the conduct of the parties, their joint purpose, community of interest and in the mode and manner of commission of

the offense.

The legal effects of implied conspiracy are:

a. Not all those present at the crime scene will be considered

conspirators;

b. Only those who participated in the criminal acts during the

commission of the crime will be considered co-conspirators;

c. Mere acquiescence to or approval of the commission of the

crime, without any act of criminal participation, shall not render

one

criminally liable as co-conspirator.

Siton vs. CA,

The idea of a conspiracy is incompatible with the idea of a free

for all. There is no definite opponent or definite intent as when

a basketball crowd beats a referee to death.

ART.9 Grave Felonies, Less Grave Felonies And Light Felonies

Importance of Classification

1. To determine whether the felonies can be complexed or not. 2. To determine the prescription of the crime and of the penalty.

Penalties (imprisonment):

1. Grave felonies afflictive penalties: 6 yrs. and 1 day to

reclusion perpetua (life)

2. Less grave felonies correctional penalties: 1 month and 1

day to 6 years

3. Light felonies - arresto menor (1 day to 30 days)

As to the liability of the participants in a grave, less grave

or light felony:

1. When the felony is grave, or less grave, all participants are

criminally liable.

2. But where the felony is only light, only the principal and

the accomplice are liable. The accessory is not.

Therefore, it is only when the light felony is against persons

or property that criminal liability attaches to the principal

or accomplice, even though the felony is only attempted or

frustrated, but accessories are not liable for light felonies.

ART.10 Offenses Not Subject To The Provisions Of RPC

General Rule: RPC provisions are supplementary to special laws.

Exceptions:

1. when special law provides otherwise

2. when provision of RPC are impossible of application, either

by express provision or by necessary implication

Provisions of RPC applicable to special laws:

- Art. 16 Participation of Accomplices

- Art. 22 Retroactivity of Penal laws if favorable to the accused

- Art. 45 Confiscation of instruments used in the crime

Note: When the special law adopts the penalties

imposed in the RPC i.e. penalties as reclusion

perpetua, prision correccional, etc. the provisions of

the RPC on imposition of penalties based on stages

of execution, degree of participation and attendance

of mitigating and aggravating circumstance may be

applied by necessary implication.

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Special Laws vs. Penal Laws

ART.11 Justifying Circumstances

JUSTIFYING CIRCUMSTANCES where the act of a person is

in accordance with law such that said person is deemed not to have

violated the law.

General Rule: No criminal and civil liability incurred.

Exception: There is civil liability with respect to par. 4

where the liability is borne by persons benefited

by the act.

Par. 1 Self-defense

Elements:

1. Unlawful Aggression

- indispensable requirement

- There must be actual physical assault or aggression or

an immediate and imminent threat, which must be offensive

and positively strong.

- The defense must have been made during the existence of

aggression, otherwise, it is no longer justifying.

- While generally an agreement to fight does not constitute

unlawful aggression, violation of the terms of the agreement

to fight is considered an exception.

2. Reasonable necessity of the means employed to prevent or repel

it

Test of reasonableness depends on:

(1) weapon used by aggressor

(2) physical condition, character, size and other circumstances

of aggressor

(3) physical condition, character, size and circumstances of

person defending himself

(4) place and occasion of assault

3. Lack of sufficient provocation on the part of the person

defending himself

NOTE: Perfect equality between the weapons used,

nor material commensurability between the means of

attack and defense by the one defending himself and

that of the aggressor is not required

REASON: the person assaulted does not have sufficient

opportunity or time to think and calculate.

Rights included in self-defense:

1. defense of person

2. defense of rights protected by law

3. defense of property (only if there is also an actual and

imminent danger on the person of the one defending)

4. defense of chastity

Kinds of Self-Defense:

1. self-defense of chastity there must be an attempt to

rape the victim

2. defense of property must be coupled with an attack on the

person of the owner, or on one entrusted with the care of

such property.

People v. Narvaez, (GR No. L-33466-67, April 20, 1983)

Attack on property alone was deemed sufficient to comply

with element of unlawful aggression.

3. self-defense in libel justified when the libel is aimed

at a persons good name.

Stand ground when in the right - the law does not require

a person to retreat when his assailant is rapidly advancing

upon him with a deadly weapon.

NOTE: Under Republic Act 9262 (Anti-Violence Against Women

and Their Children Act of 2004), victim-survivors who are

found by the Courts to be suffering from Battered Woman

Syndrome (BWS) do not incur any criminal or civil liability

despite absence of the necessary elements for the justifying

circumstance of self-defense in the RPC. BWS is a

scientifically defined pattern of psychological and behavioral

symptoms found in women living in battering relationships as

a result of cumulative abuse.

Par. 2 Defense of Relative

Elements:

1. Unlawful Aggression (indispensable requirement) 2. reasonable necessity of the means employed to prevent or repel it

3. In case the provocation was given by the person attacked,

the one making the defense had no part in such provocation.

Relative entitled to the defense:

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 4th civil degree

NOTE: The relative defended may be the original

aggressor. All that is required to justify the act of the

relative defending is that he takes no part in such

provocation.

Par. 3 Defense of Stranger

Elements:

1. unlawful aggression (indispensable requirement)

2. reasonable necessity of the means employed to prevent or

repel it

3. person defending be not induced by revenge, resentment or

other evil motive

Par. 4 State of Necessity (Avoidance of Greater Evil or Injury)

Elements:

1. evil sought to be avoided actually exists

2. injury feared be greater than that done to avoid it

3. no other practical and less harmful means of preventing it

NOTE: The necessity must not be due to the negligence or

violation of any law by the actor.

Par. 5 Fulfillment of Duty or Lawful Exercise of a Right or

Office

Elements:

1. accused acted in the performance of duty or in the lawful

exercise of a right or office

2. the injury caused or offense committed be the necessary

consequence of the due performance of the duty, or the

lawful exercise of such right or office.

NOTE: The accused must prove that he was duly

appointed to the position claimed he was discharging

at the time of the commission of the offense. It must

also be shown that the offense committed was the necessary consequence of such fulfillment of duty, or

lawful exercise of a right or office.

Par. 6 Obedience to a Superior Order

Elements:

1. an order has been issued

2. order has a lawful purpose (not patently illegal)

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

NOTE: The superior officer giving the order cannot

invoke this justifying circumstance. Good faith is

material, as the subordinate is not liable for carrying

out an illegal order if he is not aware of its illegality

and he is not negligent.

General Rule: Subordinate cannot invoke this

circumstance when order is patently illegal.

Exception: When there is compulsion of an

irresistible force, or under impulse of

uncontrollable fear.

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ART.12 Circumstances Which Exempt from Criminal Liability

EXEMPTING CIRCUMSTANCES grounds for exemption from

punishment

because there is wanting in the agent of the crime any of the

conditions which make 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.

Burden of proof: Any of the circumstances is a matter of defense

and must be proved by the defendant to the satisfaction of the court.

Par. 1 Imbecility or Insanity

IMBECILE one while advanced in age has a mental development

comparable to that of children between 2 and 7 years old.

He is exempt in all cases from criminal liability.

INSANE one who acts with complete deprivation of

intelligence/reason or without the least discernment or with

total deprivation of freedom of will. Mere abnormality of the

mental faculties will not exclude imputability.

General Rule: Exempt from criminal liability

Exception: The act was done during a lucid interval.

NOTE: Defense must prove that the accused was insane at the

time of the commission of the crime because the presumption is

always in favor of sanity.

Par. 2 Under Nine Years of Age

Requisite: Offender is under 9 years of age at the time of the

commission of the crime. There is absolute criminal

irresponsibility in the case of a minor under 9

years of age.

NOTE: Under R.A. 9344 or the Juvenile Justice And Welfare Act

a minor 15 years and below is exempt from criminal liability

Par. 3 Person Over 9 and Under 15 Acting Without Discernment

NOTE: Such minor must have acted without discernment to be

exempt. If with discernment, he is criminally liable.

Presumption: The minor committed the crime without

discernment.

DISCERNMENT mental capacity to fully appreciate

the consequences of the unlawful act, which is shown by the:

1. manner the crime was committed

2. conduct of the offender after its commission

NOTE: Under R.A. 9344 a minor over 15 but but below 18 who

acted without discernment is exempt from criminal liability

Par. 4 Accident without fault or intention of causing it

Elements:

1. A person is performing a lawful act

2. with due care

3. He causes injury to another by mere accident

4. Without fault or intention of causing it.

Par. 5 Irresistible Force

IRRESISTIBLE FORCE offender uses violence or physical force

to compel another person to commit a crime.

Elements:

1. The compulsion is by means of physical force.

2. The physical force must be irresistible.

3. The physical force must come from a third person

NOTE: Force must be irresistible so as to reduce the

individual to a mere instrument.

Par. 6 Uncontrollable Fear

UNCONTROLLABLE FEAR offender employs intimidation or threat

in compelling another to commit a crime.

DURESS use of violence or physical force

Elements:

1. 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. It promises an evil of such gravity and imminence that an

ordinary man would have succumbed to it.

NOTE: Duress to be a valid defense should be based

on real, imminent or reasonable fear for ones life or

limb. It should not be inspired by speculative, fanciful

or remote fear. A threat of future injury is not enough.

ACTUS ME INVITO FACTUS NON EST MEUS ACTUS Any act done

by me

against my will is not my act.

PAR 7. Insuperable Cause

INSUPERABLE CAUSE some motive, which has lawfully, morally

or physically prevented a person to do what the law commands

Elements:

1. An act is required by law to be done.

2. A person fails to perform such act.

3. His failure to perform such act was due to some lawful or

insuperable cause.

Ex:

1. A priest cant be compelled to reveal what was confessed to him.

2. No available transportation officer not liable for

arbitrary detention

3. Mother who was overcome by severe dizziness and extreme

debility, leaving child to die not liable for infanticide

(People v. Bandian, 63 Phil 530)

ABSOLUTORY CAUSES where the act committed is a crime but

for some reason of public policy and sentiment, there is no

penalty imposed. Exempting

and justifying circumstances are absolutory causes.

Examples of such other circumstances are:

1. spontaneous desistance (Art. 6)

2. accessories exempt from criminal liability (Art. 20)

3. Death or physical injuries inflicted under exceptional

circumstances (Art. 247)

4. persons exempt from criminal liability from theft, swindling,

malicious mischief (Art 332)

5. instigation

NOTE: Entrapment is NOT an absolutory cause. A buy-bust

operation conducted in connection with

illegal drug-related offenses is a form of entrapment.

Entrapment from Instigation

1. The ways and means are resorted to for the purpose of trapping

and capturing the lawbreaker in the execution of his

criminal plan. while The Instigator practically induces the

would-be accused into the commission of the offense and

himself becomes a co-principal

2. In Entrapment, not a bar to accused prosecution and conviction

while in Instigation, Accused will be acquitted.

3. Entrapment is not an absolutoty cause while Instigation is an

absolutory cause.

ART.13 Mitigating Circumstances

MITIGATING CIRCUMSTANCES those which if present in the

commission

of the crime reduces the penalty of the crime but does not erase

criminal liability nor change the nature of the crime

NOTE: A mitigating circumstance arising from a single fact absorbs

all the other mitigating circumstances arising from that same fact.

Par. 1 Incomplete Justifying or Exempting Circumstances

NOTE: This applies when not all the requisites are present.

If two requisites are present, it is considered a privileged

mitigating circumstance. However, in reference to Art.11(4) if

any of the last two requisites is absent, there is only an

ordinary mitigating circumstance. Remember though, that in self-

defense, defense of relative or stranger, unlawful aggression

must always be present as it is an indispensable requirement

Par. 2 Under 18 or Over 70 Years Old

NOTE: Age of accused is determined by his age at

the date of commission of crime, not date of trial.

Par. 3 No Intention to Commit so Grave a Wrong

NOTE: Can be used only when the proven facts show that there

is a notable and evident disproportion between the means

employed to execute the criminal act and its consequences.

Factors that can be considered are:

1. weapon used

2. injury inflicted

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3. part of the body injured

4. mindset of offender at the time of commission of crime

This provision addresses the intention of the offender at the

particular moment when the offender executes or commits the

criminal act, not to his intention during the planning stage

NOTE: In crimes against persons if victim does not die, the

absence of the intent to kill reduces the felony to mere

physical injuries. It is not considered as mitigating. It is

mitigating only when the victim dies.

NOTE: It is not applicable to felonies by negligence because

in felonies through negligence, the offender acts without

intent. The intent in intentional felonies is replaced by

negligence or imprudence. There is no intent on the part of

the offender, which may be considered as diminished

Par. 4 Provocation or Threat

Provocation any unjust or improper conduct or act of the

offended party, capable of exciting, inciting or

irritating anyone.

Requisites:

1. provocation must be sufficient

2. it must originate from the offended party

3. must be immediate to the commission of the crime by the

person who is provoked

NOTE: Threat should not be offensive and positively strong.

Otherwise, it would be an unlawful aggression, which may

give rise to self-defense and thus no longer a mitigating

circumstance.

Par. 5 Vindication of Grave Offense

Requisites:

1. a grave offense done to the one committing the felony, his

spouse, ascendants, descendants, legitimate, natural or

adopted brothers or sisters or relatives by affinity within

the same degrees

2. the felony is committed in immediate vindication of such

grave offense

NOTE: Immediate allows for a lapse of time, as long as

the offender is still suffering from the mental agony

brought about by the offense to him. (proximate time, not

just immediately after)

Par. 6 Passion or Obfuscation

Requisites:

1. offender acted upon an impulse

2. the impulse must be so powerful that it naturally produced

passion or obfuscation in him

NOTE: Act must have been committed not in the spirit of

lawlessness or revenge; act must come from lawful sentiments.

Act, Which Gave Rise To Passion And Obfuscation:

1. That there be an act, both unlawful and unjust

2. The act be sufficient to produce a condition of mind

3. That the act was proximate to the criminal act, not admitting

of time during which the perpetrator might recover his normal

equanimity

4. The victim must be the one who caused the passion or

obfuscation

NOTE: Passion and obfuscation cannot co-exist with treachery

since this means that the offender had time to ponder his

course of action.

Passion or Obfuscation from Irresistable Force

1. Passion or obfuscation is mitigating while Irresistable force

is exempting

2. Passion or Obfuscation, no physical force needed while

irresistable force requires physical force.

3. Passion and Obfuscation must come from the offender himself

while Irresistable Force must come from 3rd peson

4. Paasion or Obfuscation must come from lawful sentiments

while Irresistable force is unlawful.

Par. 7 Surrender and Confession of Guilt

WHEN SURRENDER VOLUNTARY

- must be spontaneous, showing the intent of the accused to

submit himself unconditionally to the authorities, either

because:

1. he acknowledges his guilt; or

2. he wishes to save them the trouble and expense necessarily

incurred in his search and capture.

NOTE: If both are present, considered as two independent

mitigating circumstances. Further mitigates penalty

NOTES:

Plea made after arraignment and after trial has begun does

not entitle accused to the mitigating circumstance

If accused pleaded not guilty, even if during arraignment,

he is entitled to mitigating circumstance as long as he

withdraws his plea of not guilty to the charge before the

fiscal could present his evidence.

Plea to a lesser charge is not a Mitigating Circumstance

because to be such, the plea of guilt must be to the

offense charged.

Plea to the offense charged in the amended info, lesser

than that charged in the original info, is Mitigating

Circumstance.

Par. 8 Physical Defect of Offender

The offender is deaf and dumb, blind or otherwise suffering

from some physical defect, restricting his means of action,

defense or communication with others.

NOTE: The physical defect must relate to the offense committed.

Par. 9 Illness of the Offender

Requisites:

1. The illness of the offender must diminish the exercise of

his will-power.

2. Such illness should not deprive the offender of

consciousness of his acts.

Par. 10 Similar and Analogous Circumstances

Example:

1. Defendant who is 60 years old with failing eyesight is

similar to a case of one over 70 years old.

2. Outraged feeling of an owner of an animal taken for

ransom is analogous to vindication of grave offense.

3. Impulse of jealous feeling, similar to passion and

obfuscation.

4. Voluntary restitution of property, similar to voluntary

surrender.

5. Extreme poverty, similar to incomplete justification based

on state necessity.

Introduction - Aggravating Circumstances

AGGRAVATING CIRCUMSTANCES Those which, if attendant in the

commission of the crime, serve to have the penalty imposed in

its maximum period provided by law for the offense or those that

change the nature of the crime.

BASIS: 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 the commission,

3. the means and ways employed

4. the time, or

5. the personal circumstances of the offender, or the offended party.

KINDS OF AGGRAVATING CIRCUMSTANCES:

1. Generic - those which apply to all crimes

2. Specific - those which apply only to specific crimes,

3. Qualifying - those that change the nature of the crime

4. Inherent - which of necessity accompany the commission of the

crime, therefore not considered in increasing the penalty

to be imposed

5. Special - those which arise under special conditions to

increase the penalty of the offense and cannot be offset

by mitigating circumstances

Generic Aggravating Circumstance Distinguished From Qualifying

Aggravating Circumstance

1. Generic Aggravating Circumstances - EFFECT : When not set

off by any mitigating circumstance, Increases the penalty

which should be imposed upon the accused to the maximum

period but without exceeding the limit prescribed by law

Qualifying Aggravating Circumstance - EFFECT: Gives the crime

its proper and exclusive name and places the author of the

crime in such a situation as to deserve no other penalty

than that specially prescribed by law for said crimes

(People v. Bayot, 64Phil269, 273)

2. Generic Aggravating Circumstances - If not alleged in the

information, a qualifying aggravating circumstance will be

considered generic

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Qualifying Aggravating Circumstances - To be considered

as such, MUST be alleged in the information.

3. Generic Aggravating Circumstances - May be offset by a

mitigating circumstance.

Qualifying Aggravating Circumstances - Cannot be offset by a

mitigating circumstance.

RULES ON AGGRAVATING CIRCUMSTANCES:

1. Aggravating circumstances shall NOT be appreciated if:

a) They constitute a crime specially punishable by law, or

b) It is included by the law in defining a crime with a penalty

prescribed, and therefore shall not be taken into account

for the purpose of increasing the penalty.

Ex: That the crime be committed by means of ...fire,...

explosion (Art. 14, par. 12) is in itself a crime of arson

(Art. 321) or a crime involving destruction (Art. 324). It

is not to be considered to increase the penalty for the

crime of arson or for the crime involving destruction.

2. The same rule shall apply with respect to any aggravating

circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof

(Art.62, par.2)

3. Aggravating circumstances which arise:

a) From the moral attributes of the offender;

b) From his private relations with the offended party; or

c) From any personal cause,

shall only serve to aggravate the liability of the

principals, accomplices and accessories as to whom such

circumstances and a attendant. (Art.62, par. 3)

4. The circumstances which consist :

a) In the material execution of the act, or

b) In the means employed to accomplish it,

shall serve to aggravate the liability of only those

persons who had knowledge of them at the time

of the execution of the act or their cooperation

therein. Except when there is proof of conspiracy

in which case the act of one is deemed to be the

act of all, regardless of lack of knowledge of the

facts constituting the circumstance. (Art. 62, par.4)

5. Aggravating circumstances, regardless of its kind, should

be specifically alleged in the information AND proved as

fully as the crime itself in order to increase the penalty.

(Sec. 9, Rule 110, 2000 Rules of Criminal Procedure)

6. When there is more than one qualifying aggravating

circumstance present, one of them will be appreciated as

qualifying aggravating while the others will be considered

as generic aggravating.

ART.14 Aggravating Circumstances

Par. 1. That advantage be taken by the offender of his public

position

Requisites:

1. Offender is public officer

2. Public officer must use the influence, prestige, or

ascendancy which his office gives him as means to

realize criminal purpose

It is not considered as an aggravating circumstance where

taking advantage of official position is made by law an

integral element of the crime or inherent in the offense,

Ex: malversation (Art. 217), falsification of a document

committed by public officers (Art. 171).

When the public officer did not take advantage of

the influence of his position, this aggravating

circumstance is not present

NOTE : Taking advantage of a public position is

also inherent in the case of accessories under

Art. 19, par. 3 (harboring, concealing, or assisting

in the escape of the principal of the crime), and in

crimes committed by public officers (Arts. 204-245).

Par. 2. That the crime be committed in contempt of or with

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.

PERSON IN AUTHORITY public authority, or person who is

directly vested with jurisdiction and has the power to

govern and execute the laws

Ex:

1. Governor

2. Mayor

3. Barangay captain/ chairman

4. Councilors

5. Government agents

6. Chief of Police

NOTE: A teacher or professor of a public or recognized

private school is not a public authority within the

contemplation of this paragraph. While he is a person

in authority under Art. 152, that status is only for

purposes of Art. 148 (direct assault) and Art.

152 (resistance and disobedience)

The crime should not be committed against the public authority (otherwise it will constitute direct assault

under Art.148) This is NOT applicable when committed

in the presence of a mere agent.

AGENT subordinate public officer charged w/ the

maintenance of public order and protection and

security of life and property

Ex: barrio vice lieutenant, barrio councilman

Par. 3. That the act be committed:

(1) with insult or in disregard of the respect due the

offended party on account of his

(a)rank,

(b) age, or

(c) sex or

(2) that it be committed in the dwelling of the offended

party, if the latter has not given provocation

Rules regarding par 3(1):

1. These circumstances shall only be considered as one

aggravating circumstance.

2. Rank, age, sex may be taken into account only in

crimes against persons or honor, they cannot be

invoked in crimes against property.

3. It must be shown that in the commission of the crime

the offender deliberately intended to offend or

insult the sex, age and rank of the offended party.

RANK The designation or title of distinction used to

fix the relative position of the offended party in

reference to others (There must be a difference in the

social condition of the offender and the offended party).

AGE may refer to old age or the tender age of the victim.

SEX refers to the female sex, not to the male sex.

The AC of disregard of rank, age, or sex is not

applicable in the following cases:

1. When the offender acted with passion and obfuscation.

2. When there exists a relationship between the

offended party and the offender.

3. When the condition of being a woman is indispensable

in the commission of the crime.

(Ex: in parricide, abduction, seduction and rape)

People vs. Lapaz, March 31, 1989

Disregard of sex and age are not absorbed in treachery because treachery refers to the manner of the commission

of the crime, while disregard of sex and age pertains

to the relationship of the victim.

DWELLING must be a building or structure exclusively

used for rest and comfort (combination of house and store

not included), may be temporary as in the case of guests

in a house or bedspacers. It includes dependencies, the

foot of the staircase and the enclosure under the house

NOTES:

The aggravating circumstance of dwelling requires that

the crime be wholly or partly committed therein or in

any integral part thereof.

Dwelling does not mean the permanent residence or

domicile of the offended party or that he must be the

owner thereof. He must, however, be actually living or

dwelling therein even for a temporary duration or purpose.

It is not necessary that the accused should have actually

entered the dwelling of the victim to commit the offense;

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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.

What aggravates the commission of the crime in

ones dwelling:

1. The abuse of confidence which the offended party reposed

in the offender by opening the door to him; or

2. The violation of the sanctity of the home by trespassing

therein with violence or against the will of the owner.

Meaning of provocation in the aggravating circumstance

of dwelling:

The provocation must be:

1. Given by the owner of the dwelling,

2. Sufficient, and

3. Immediate to the commission of the crime.

NOTE: If all these conditions are present, the offended

party is deemed to have given the provocation, and the

fact that the crime is committed in the dwelling of the

offended party is NOT an aggravating circumstance.

REASON: When it is the offended party who has provoked

the incident, he loses his right to the respect and consideration due him in his own house

Dwelling is not aggravating in the following cases:

1. When both the offender and the offended party are

occupants of the same house, and this is true even

if offender is a servant in the house.

exception: In case of adultery in the conjugal

dwelling, the same is aggravating.

However, if the paramour also dwells

in the conjugal dwelling, the applicable

aggravating circumstance is abuse of

confidence.

2. When robbery is committed by the use of force upon

things, dwelling is not aggravating because it is

inherent.

However, dwelling is aggravating in robbery with

violence against or intimidation of persons because

this class of robbery can be committed without the

necessity of trespassing the sanctity of the

offended partys house.

3. In the crime needed to see this picture. dwelling,

it is inherent or included by law in defining the

crime.

4. When the owner of the dwelling gave sufficient and

immediate provocation.

There must exist a close relation between the

provocation made by the victim and the

commission of the crime by the accused.

5. The victim is not a dweller of the house.

Par. 4. That the act be committed with:

(1) abuse of confidence or

(2) obvious ungratefulness

There are two aggravating circumstances present under

par.4 which must be independently appreciated if present

in the same case

While one may be related to the other in the factual

situation in the case, they cannot be lumped together.

Abuse of confidence requires a special confidential

relationship between the offender and the victim, while this is not required for there to be obvious

ungratefulness

Requisites Of Abuse Of Confidence:

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.

NOTE: Abuse of confidence is inherent in malversation

(Art. 217), qualified theft (Art. 310), estafa by

conversion or misappropriation (Art. 315), and qualified

seduction (Art. 337).

Requisites of obvious ungratefulness:

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 act be committed with obvious ungratefulness.

NOTE: The ungratefulness contemplated by par. 4 must be

such clear and manifest ingratitude on the part of

the accused.

Par. 5. That the crime be committed in the palace of the Chief

Executive, or in his presence, or where public

authorities are engaged in the discharge of their duties,

or in a place dedicated to religious worship.

Actual performance of duties is not necessary when crime

is committed in the palace or in the presence of the

Chief Executive

Requisites Regarding Public Authorities:

1. crime occurred in the public office

2. public authorities are actually performing their

public duties

Requisites (Place Dedicated To Religious Worship):

1. The crime occurred in a place dedicated to the

worship of God regardless of religion

2. The offender must have decided to commit the crime

when he entered the place of worship

Except for the third which requires that official functions are being performed at the time of the

commission of the crime, the other places mentioned are

aggravating per se even if no official duties or acts

of religious worship are being conducted there.

Cemeteries, however respectable they may be, are not

considered as place dedicated to the worship of God.

Par. 6. That the crime be committed

(1) in the nighttime, or

(2) in an uninhabited place, or

(3) by a band,

whenever such circumstance may facilitate

the commission of the offense

NOTE: When present in the same case and their

element are distinctly palpable and can subsist

independently, they shall be considered separately.

When nighttime, uninhabited place or band aggravating:

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

2. When 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

NIGHTTIME (obscuridad) that period of darkness

beginning at the end of dusk and ending at dawn.

Commission of the crime must begin and be accomplished

in the nighttime. When the place of the crime is

illuminated by light, nighttime is not aggravating.

It is not considered aggravating when the crime

began at daytime.

Nighttime is not especially sought for when the notion

to commit the crime was conceived of shortly before

commission or when crime was committed at night upon a

casual encounter

However, nighttime need not be specifically sought for

when

(1) it facilitated the commission of the offense, or

(2) the offender took advantage of the same to

commit the crime

A bare statement that crime was committed at night is insufficient. The information must allege that nighttime

was sought for or taken advantage of, or that it

facilitated the crime

GENERAL RULE: Nighttime is absorbed in treachery.

EXCEPTION: Where both the treacherous mode of attack and

nocturnity were deliberately decided upon in the same case,

they can be considered separately if such circumstances

have different factual bases. Thus:

In People vs. Berdida, et. al. (June 30, 1966),

nighttime was considered since it was purposely sought,

and treachery was further appreciated because the

victims hands and arms were tied together before he

was beaten up by the accused.

In People vs. Ong, et. al. (Jan. 30, 1975), there was

treachery as the victim was stabbed while lying face

up and defenseless, and nighttime was considered upon

proof that it facilitated the commission of the offense

and was taken advantage of by the accused.

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UNINHABITED PLACE (despoblado) one where there are no

houses at all, a place at a considerable distance from

town, where the houses are scattered at a great distance

from each other

Solitude must be sought to better attain the criminal

purpose

What should be considered here is whether in the

place of the commission of the offense, there was

a reasonable possibility of the victim receiving

some help.

BAND (en cuadrilla) whenever there are more than 3 armed

malefactors that shall have acted together in the commission

of an offense

NOT E: There must be four or more armed men

If one of the four-armed malefactors is a principal

by inducement, they do not form a band because

it is undoubtedly connoted that he had no direct

participation.

By a band is aggravating in crimes against property or

against persons or in the crime of illegal detention or

treason but does not apply to crimes against chastity

By a band is inherent in brigandage

This aggravating circumstance is absorbed in the

circumstance of abuse of superior strength

Par. 7. That the crime be committed on the occasion of a

conflagration, shipwreck, earthquake, epidemic or

other

calamity or misfortune.

Requisites:

1. The crime was committed when there was a calamity or

misfortune

2. The offender took advantage of the state of confusion

or chaotic condition from such misfortune

If the offended was PROVOKED by the offended party

during the calamity/misfortune, this aggravating

circumstance may not be taken into consideration.

Par. 8.That the crime be committed with the aid of

(1) armed men or

(2) persons who insure or afford impunity

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

NOTE: This aggravating circumstance requires that the armed

men are accomplices who take part in a minor capacity

directly or indirectly, and not when they were merely

present at the crime scene. Neither should they constitute

a band, for then the proper aggravating circumstance

would be cuadrilla.

When This Aggravating Circumstance Shall Not Be Considered:

1. When both the attacking party and the party attacked

were equally armed.

2. 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. 3. When the others were only casually present and the

offender did not avail himself of any of their aid or

when he did not knowingly count upon their assistance

in the commission of the crime

If there are four armed men, aid of armed men is absorbed

in employment of a band. If there are three armed men or

less, aid of armed men may be the aggravating circumstance.

Aid of armed men includes armed women.

Par. 9. That the accused is a recidivist

RECIDIVIST 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 RPC.

Requisites:

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.

MEANING OF at the time of his trial for one crime.

It is employed in its general sense, including the

rendering of the judgment. It is meant to include

everything that is done in the course of the trial, from

arraignment until after sentence is announced by the

judge in open court.

What is controlling is the TIME OF THE TRIAL,

not the time of the commission of the offense.

GENERAL RULE: To prove recidivism, it is necessary to

allege the same in the information and to attach thereto

certified copy of the sentences rendered against the accused.

Exception: If the accused does not object and when he

admits in his confession and on the witness stand.

Recidivism must be taken into account no matter

how many years have intervened between the

first and second felonies.

Amnesty extinguishes the penalty and its effects.

However, pardon does not obliterate the fact that

the accused was a recidivist. Thus, even if the

accused was granted a pardon for the first

offense but he commits another felony embraced

in the same title of the Code, the first conviction

is still counted to make him a recidivist

Being an ordinary aggravating circumstance,

recidivism affects only the periods of a penalty,

except in prostitution and vagrancy (Art. 202) and

gambling (PD 1602) wherein recidivism increases

the penalties by degrees. No other generic

aggravating circumstance produces this effect

In recidivism it is sufficient that the succeeding

offense be committed after the commission of the

preceding offense provided that at the time of his

trial for the second offense, the accused had

already been convicted of the first offense.

If both offenses were committed on the same date,

they shall be considered as only one, hence, they

cannot be separately counted in order to constitute

recidivism. Also, judgments of convicted handed down

on the same day shall be considered as only one

conviction.

REASON: Because the Code requires that to be

considered as a separate convictions, at the time of

his trial for one crime the accused shall have

been previously convicted by final judgment of the other.

Par. 10. That the offender has been previously punished for

an

offense to which the law attaches an equal or greater

penalty or for two or more crimes to which it attaches

a

lighter penalty.

Requisites Of Reiteracion Or Habituality:

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

a) Equal or

b) Greater penalty, or

c) For two or more crimes to which it attaches a lighter penalty than that for the new offense; and

3. That he is convicted of the new offense

Habituality vs Recidivism

1. As To The First offense

Habituality - It is necessary that the offender shall

shall have served out his sentence for the first

offense.

Recidivism - It is enough that a final judgment has

been rendered in the first offense.

2. As to the kind of offenses involved

Habituality - The previous and subsequent offenses must

not be embraced in the same title of the code.

Recidivism - Requires that the offenses be included

in the same title of the code.

THE FOUR FORMS OF REPETITION ARE:

1. Recidivism (par. 9, Art. 14) Where a person, on

separate occasions, is convicted of two offenses

embraced in the same title in the RPC. This is a

generic aggravating circumstance.

2. Reiteracion or Habituality (par. 10, Art. 14)

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Where the offender has been previously punished for

an offense to which the law attaches an equal or

greater penalty or for two crimes to which it attaches

a lighter penalty. This is a generic aggravating

circumstance.

3. Multi-recidivism or Habitual delinquency (Art.

62, par, 5) Where a person within a period of ten

years from the date of his release or last conviction of

the crimes of serious or less serious physical injuries,

robbery, theft, estafa or falsification, is found guilty of

the said crimes a third time or oftener. This is an

extraordinary aggravating circumstance.

4. Quasi-recidivism (Art. 160) Where a person

commits felony before beginning to serve or while

serving sentence on a previous conviction for a

felony. This is a special aggravating circumstance.

Since reiteracion provides that the accused has duly

served the sentence for his previous conviction/s, or

is legally considered to have done so, quasi-recidivism

cannot at the same time constitute reiteracion,

hence this aggravating circumstance cannot apply

to a quasi-recidivist.

If the same set of facts constitutes recidivism and

reiteracion, the liability of the accused should be

aggravated by recidivism which can easily be proven.

Par. 11. That the crime be committed in consideration of

price,

reward or promise.

Requisites:

1. There are at least 2 principals:

- The principal by inducement (one who offers)

- The principal by direct participation (accepts)

2. The price, reward, or promise should be previous to

and in consideration of the commission of the

criminal act

NOTE: The circumstance is applicable to both principals.

It affects the person who received the price / reward as

well as the person who gave it.

If without previous promise it was given voluntarily after

the crime had been committed asan expression of his

appreciation for the sympathy and aid shown by the other

accused, it should not be taken into consideration for the

purpose of increasing the penalty.

The price, reward or promise need not consist of or refer

to material things or that the same were actually delivered,

it being sufficient that the offer made by the principal

by inducement be accepted by the principal by direct

participation before the commission of the offense.

The inducement must be the primary consideration for the

commission of the crime.

Par. 12. That the crime be committed by means of inundation,

fire,

explosion, stranding of a vessel or intentional damage

thereto,

derailment of a locomotive, or by use of any artifice

involving

great waste and ruin

The circumstances under this paragraph will only be considered

as aggravating if and when they are used by the offender as a

means to accomplish a criminal purpose

When another aggravating circumstance already qualifies the crime, any of these aggravating circumstances shall be

considered as generic aggravating circumstance only

When used as a means to kill another person, the crime is

qualified to murder.

Par. 13. That the act be committed with evident

premeditation

Requisites:

The prosecution must prove

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.

Essence of premeditation: 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.

To establish evident premeditation, it must be shown that there

was a period sufficient to afford full opportunity for

meditation and reflection, a time adequate to allow the

conscience to overcome the resolution of the will, as well as

outward acts showing the intent to kill. It must be shown that

the offender had sufficient time to reflect upon the

consequences of his act but still persisted in his determination

to commit the crime. (PEOPLE vs. SILVA, et. al., GR No.

140871, August 8, 2002)

Premeditation is absorbed by reward or promise.

When the victim is different from that intended, premeditation

is not aggravating. However, if the offender premeditated on

the killing of any person, it is proper to consider against

the offender the aggravating circumstance of premeditation,

because whoever is killed by him is contemplated in his

premeditation.

Par. 14. That (1) craft,

(2) fraud, or

(3) disguise be employed.

Requisite

The offender must have actually used craft, fraud, or disguise

to facilitate the commission of the crime.

CRAFT (astucia) involved the use of intellectual trickery or

cunning on the part of the accused. A chicanery resorted to

by the accused to aid in the execution of his criminal design.

It is employed as a scheme in the execution of the crime

FRAUD (fraude) insidious words or machinations used to induce

the victim to act in a manner which would enable the offender

to carry out his design

Craft and fraud may be absorbed in treachery ifthey have been

deliberately adopted as the means, methods or forms for the

treacherous strategy, or they may co-exist independently where

they are adopted for a different purpose in the commission

of the crime.

Ex:

In People vs. San Pedro (Jan. 22, 1980),

where the accused pretended to hire the driver in order to

get his vehicle, it was held that there was craft directed

to the theft of the vehicle, separate from the means

subsequently used to treacherously kill the defenseless

driver.

In People vs. Masilang (July 11, 1986)

there was also craft where after hitching a ride, the accused

requested the driver to take them to a place to visit somebody,

when in fact they had already planned to kill the driver.

DISGUISE (disfraz) resorting to any device to conceal identity

The test of disguise is whether the device or contrivance

resorted to by the offender was intended to or did make

identification more difficult, such as the use of a mask or

false hair or beard.

The use of an assumed name in the publication of a libel

constitutes disguise.

Par. 15. That (1) advantage be taken of superior strength, or

(2) means be employed to weaken the defense.

Par. 15 contemplates two aggravating circumstances, either of

which qualifies a killing to murder.

MEANING OF advantage be taken:To deliberately use excessive

force that is out of proportion to the means for self-defense

available to the person attacked. (PEOPLE vs. LOBRIGAS, et.

al., GR No. 147649, December 17, 2002)

No Advantage Of Superior Strength In The Following:

1. One who attacks another with passion and obfuscation does

not take advantage of his superior strength.

2. When a quarrel arose unexpectedly and the fatal blow was

struck at a time when the aggressor and his victim were

engaged against each other as man to man.

TEST for abuse of superior strength: the relative strength of

the offender and his victim and whether or not he took

advantage of his greater strength.

When there are several offenders participating in the crime,

they must ALL be principals by direct participation and their

attack against the victim must be concerted and intended

to be so.

Abuse of superior strength is inherent in the crime of

parricide where the husband kills the wife. It is generally

accepted that the husband is physically stronger than the wife.

Abuse of superior strength is also present when the offender

uses a weapon which is out of proportion to the defense

available to the offended party.

NOTE: Abuse of superior strength absorbs cuadrilla (band).

MEANING OF Means employed to weaken defense - the offender

employs means that materially weaken the resisting power of

the offended party.

Ex:

1. Where one, struggling with another, suddenly throws a

cloak over the head of his opponent and while in this

situation he wounds or kills him.

2. One who, while fighting with another, suddenly casts sand

or dirt upon the latter eyes and then wounds or kills him.

3. When the offender, who had the intention to kill the

victim, made the deceased intoxicated, thereby materially

weakening the latters resisting power.

NOTE: This circumstance is applicable only to crimes against

persons, and sometimes against person and property, such as

robbery with physical injuries or homicide.

Par. 16. That the act be committed with treachery (alevosia)

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.

Requisites:

1. That at the time of the attack, the victim was not in a

position to defend himself; and

2. That the offender consciously adopted the particular means,

method or form of attack employed by him.

TEST: It is not only the relative position of the parties but,

more specifically, whether or not the victim was forewarned or