CRIMINAL LAW I Ateneo de Davao College of Law MEMORY AID IN CRIMINAL LAW I

By ATTY. TEODORO V. ANGEL CRIMINAL LAW - branch of law which defines crimes, treats of their nature and provides for their punishment. LIMITATIONS ON CONGRESS POWER TO ENACT LAWS E 1) No Ex post facto laws enacted. -- See People vs. Ferrer, 48 SCRA 382 (1972) B 2) No Bill of attainder enacted. A 3) Of general Application. C 4) No Cruel or inhuman punishment inflicted, or excessive fines imposed. (Recall EBAC) COMMENTS: 1) LAW -- system of rules governing human conduct, just, obligatory, promulgated by competent authority and of general observance and benefit. 2) CRIMINAL LAW defined Ex post facto law: C a) Makes an act CRIMINAL now when act was innocent when done. I b) INCREASES the penalty A c) AGGRAVATES the crime A d) ALTERS the legal rules of evidence to make it easier to convict the accused. (Recall CIAA) 4) Two tests of ex post facto law: a) Prejudicial to accused b) Retroactive effect 5) Bill of attainder defined: (Cite People vs. Ferrer 48 SCRA 382 where the Supreme Court upheld the constitutionality of R.A. 1700 (Anti-Subversion Law) defining the CPP-NPA as an organized conspiracy to overthrow the government as not being a bill of attainder because membership must still be judicially determined to have been done knowingly, willfully and by overt acts as distinguished from mere nominal membership. There is still a judicial determination of guilt, not legislative determination of guilt or innocence of the accused which the Constitution frowns upon.

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ARTICLE 1. Time when Act takes effect. This Code shall take effect on the 1st of January 1932. THREE BASIC PRINCIPLES of CRIMINAL LAW Pro 1) Prospectivity -- Penal law being prospective in nature and not retroactive, except under Article 22 of RPC. Gen 2) Generality Refers to people and how penal laws apply to people, including resident aliens. (Article 14, Civil Code) Ter 3) Territoriality Criminal laws are only enforceable within Philippine territory, except those provided in Article 2, RPC (See Exceptions under Article 2, RPC -- Recall SCION) COMMENTS: 1) PROSPECTIVITY a) Crimes punishable by penal laws already in force at time of their commission, EXCEPT if favorable to accused, provided accused is not a habitual delinquent. b) Effects of REPEAL of penal law: 1) If new penal law has lighter penalty, new penal law applied RETROACTIVELY, except if accused is a habitual delinquent. 2) If new law carries a heavier penalty, the old law in force at time of commission of offense shall be applied. In other words, always apply penal law which is favorable to accused. 2) GENERALITY a) Article 14 (Civil Code) -- Penal laws shall be obligatory upon those who live or sojourn in Philippine territory, subject to principles of PIL and to treaty stipulations. b) Even foreigners not exempt from our penal laws, except heads of state, foreign ministers and diplomats. 3) TERRITORIALITY a) Criminal laws are enforceable only within Philippine territory, except as found in Article 2 (Extraterritoriality) ARTICLE 2. Application of its provisions. -Except as provided in treaties and laws of preferential application, the provisions of this Code shall take effect not only within the Philippine archipelago, including its atmosphere, its interior waters and maritime zone, but also outside its jurisdiction, against those who: S 1) Should commit an offense while on a Philippine Ship or airship.

C 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. I 3) Should be liable for acts connected with the Introduction into these islands of the obligations and securities mentioned in the preceding number. O 4) When being public Officers or employees, should commit an offense in the exercise of their functions. N 5) Should commit any of the crimes against National security and the law of nations, as defined in Title One of Book II of this Code. (Recall SCION) Note: Jurisdictional Rules: 1) French rule such crimes are not triable in territorial state, unless affecting peace and security of the state. (Nationality rule) 2) English rule such crimes are triable in the territorial state, unless such crime only affects the internal management of the vessel. (Territoriality rule) COMMENTS: 1) 1st par. -- A Philippine ship, although beyond three miles from our seashore, is considered part of our national territory hence, subject to jurisdiction of our courts. It is the registration of the vessel, or aircraft, in accordance with Philippine law, not citizenship of owner, which determines whether or not it is a Philippine ship or airship. Regarding foreign merchant vessels -- in Phils., we adopt the English rule that such crimes are triable in our country, unless affects only internal affairs of foreign vessel. In U.S. vs. Look Chaw,(p. 29, Reyes) SC held that mere possession of opium aboard a foreign merchant vessel in transit is not triable in our court, except if landed in our shores, or smoked opium inside vessel which pollutes our air, and due to its pernicious effects constituting breach of our public order, in People vs. Wong Cheng (p. 30, Reyes). Regarding warships -- considered extensions of territory of foreign country hence, cannot be subject to the laws of another state. 2) 2nd and 3rd par. intended to protect the economic interest of our country. Introduction of fake currency notes as dangerous as act of counterfeiting these coins and currencies. 3) 4th par. -- refers to crimes against public officers and committed in the discharge of their functions while abroad -- such as Direct bribery, Indirect bribery, Illegal exactions, Possession of prohibited interest, Malversation of public funds, Failure of accountable officer to render accounts, Technical malversation, Failure to make delivery of public funds or property, and Falsification under Article 171. 4) 5th par. -- refers to Treason, Conspiracy and Proposal to commit treason, Espionage, Inciting to war and giving motives for reprisals, Violation of neutrality, Correspondence with enemy country, Flight to enemy country, and Piracy and mutiny on the high seas. SCHOOLS of THOUGHT in CRIMINAL LAW 1) Classical -Basis of criminal liability is human free will; purpose of penalty being retribution and deterrence; penalty proportionate to offense; basis of crime is human nature; 2) Positivist -- Man is subdued by strange, morbid phenomenon which constrains him to do wrong despite his will to the contrary; purpose of penalty is reformation. 3) Eclectic -- Combination of best features of classical and positivist schools of thought from which the RPC is patterned after. Ideally, the classical theory should be applied to grievous crimes, while the positivist is made to apply on economic and social crimes. 4) Utilitarian -- This school of thought espouses the idea that the primary function of punishment in criminal law is to protect society from potential and actual wrongdoers. The retributive aspect of penal laws should be directed against them. thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the objective of the retribution of a wronged society should be directed against actual and potential wrongdoers. DISTINCTIONS: CRIMES MALA IN SE vs. MALA PROHIBITA a) Mala in se -- crimes punishable under RPC; determine whether or not act done with dolo or culpa; criminal intent, degree of participation and stage of execution as distinguished from crimes mala prohibita. b) Mala prohibita crimes punishable under special law; presence of dolo or culpa, criminal intent, degree of participation and stage of execution, and attendant circumstances are immaterial and irrelevant. See Padilla vs. Dizon, 158 SCRA 127 (1988) In this case, the SC dismissed Judge Dizon from the service gross ignorance of the law for acquitting Lo Chi Fai for Violation of CB Circular No. 960 on the flimsy ground that Lo Chi Fai had no intention or mens rea to violate the law when malice, or mens rea, is completely immaterial in a crime mala prohibita. COMMENTS: 1) Crimes mala in se are crimes wrong in themselves, or those so serious in their nature, and effects, to society they call for almost unanimous condemnation; while crimes mala prohibita are violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society, like dangerous drugs, or illegal possession of firearms.

2) In crimes mala prohibita, only question is: did accused perform the prohibited act. If he did, he is automatically liable, and no more questions asked. ARTICLE 3. Definition -- Acts and omissions punished by law are felonies. (delitos) Felonies are committed not only by 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 acts results from imprudence, negligence, lack of foresight, or lack of skill. ELEMENTS OF FELONY 1) Involves an act or omission. 2) Punishable by RPC. 3) Committed by either dolo or culpa. a) There is dolo if the criminal act is done Freely, Intelligently, and Intentionally while there is culpa if the criminal act is done Freely, Intelligently and Negligently. (Recall FIInt/FINe) COMMENTS: 1) In elements of felony, act is performed/not performed(omission) with: DOLO/CULPA + INJURY. 2) In crimes mala prohibita, only question is: did accused perform the prohibited act. If he did, automatically liable, and no more questions asked. 3) Requisites of DOLO: a) Freedom -- negatived by irresistible force or uncontrollable fear hence, exempt from criminal liability. b) Intelligence -- negatived by insanity or imbecility, or minority hence, also exempt form criminal liability. c) Intent -means purpose to use a particular means to effect a particular result; deduced from overt acts of accused. eg. If X box Y on stomach, no intent to kill; but if Mike Tyson boxes Y on stomach, intent to kill can be inferred. 4) Also explain ACTUS REUS NISI MENS SIT REA ACTUS REUS + MENS REA = DELITO CRIMINAL ACT/OMISSION + CRIMINAL INTENT = CRIME Whether by DOLO (Intentional felony) Or by CULPA (Culpable felony) DISTINCTIONS BETWEEN INTENT and MOTIVE a) Intent -- purpose to use a particular means to effect a particular result; objective phase. Criminal law, as a general rule, is concerned only with INTENT, and whether or not the accused acted freely, intelligently and INTENTIONALLY. In Ah Chong and Oanis cases, MISTAKE OF FACT negatives INTENT. b) Motive -- moving power which impels one to action for a definite result. Not an element of a crime except if doubt exists as to the identity, liability, or participation of the accused. See People vs. Temblor, 161 SCRA 623 (1988) In this case, SC affirmed Accused Temblors conviction and held that proof of motive is not essential in light of positive identification of accused who actually saw the witness shot by Accused Temblor. Motive is not an essential element of the crime but assumes importance only when there is doubt as to the identity and circumstances regarding the commission of the crime, and if one tries to prove the guilt of the accused through mere circumstantial evidence. COMMENTS: 1) Cite Padilla vs. Dizon, 158 SCRA 127 (1988) ARTICLE 4. Criminal liability -- Criminal liability shall be incurred: 1) By any person committing a felony (delito) although the wrongful act be different from that which he intended. 2) By any person performing an act which would be an offense against persons of property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means ELEMENTS of MISTAKE OF FACT Article 4, RPC 1) Act would have been lawful had facts been as accused believed them. 2) Intention of accused is lawful. 3) Mistake is not attended by fault or negligence on part of the accused. (Distinguish contrasting decisions between U.S. vs. Ah Chong 15 Phil. 488 (1910) from People vs. Oanis 74 Phil. 257 (1943) Mo 4) No Motive No 5) No reasonable opportunity to ascertain the facts without risk to himself. In Oanis, use of excessive force negatives accuseds defense of honest mistake of fact. If there is negligence, mistake of fact is not exempting but one can invoke PRAETER INTENTIONEM. (Recall AIM/MoNo) A I M KINDS OF MISTAKE 1) Error in personae -- Mistake in person 2) Aberratio ictus Mistake in blow

3) Praeter intentionem no intent to commit so grave a wrong as that committed Note: Proximate cause vs. remote cause (See Urbano vs. IAC, 157 SCRA 1 (1998); People vs. Abarca, 153 SCRA 735 (1987); also Bataclan vs. Medina, 102 Phil. 181, p. 74, Reyes) COMMENTS: 1) By person committing a felony, although wrongful act be different from that intended -- since it refers to a felony, it must be a mala in se, and not punishable under special law. 2) In People vs. Abarca, it must be a wrongful act and under Article 247, killing is an absolutory cause which is not a wrongful act. Hence, from frustrated homicide/murder, it was downgraded to physical injuries for the injuries sustained by the Amparado couple. 3) If there is negligence, apply Article 365 (culpa), not Article 4 which is more of dolo. 4) In par. 1 of Article 4, inherent impossibility refers to legal impossibility (theft of ones own watch) or physical impossibility (killing a dead person). 5) No attempted or frustrated state in impossible crimes. ARTICLE 5. Duty of the court in connection with acts which should be expressed but which are not covered by the law, and in cases of excessive penalties. -Whenever a court has knowledge of any act which it may deem proper to repress but which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation. In the same way the court shall submit to the Chief Executive, through the Department of justice, such statement as it 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 1) degree of malice and 2) the injury causes by the offense. COMMENTS: 1) In 1 st par., must acquit because of NULLUM CRIMEN NULLA POENA SINE LEGE. 2) In 2ND par., in cases of excessive penalties, judge should not suspend execution of sentence but submit recommendation to the Chief Execution/President, through the Secretary of Justice, recommending executive clemency, considering a) Lesser degrees of malice b) No injury, or injury is not serious 3) Example is wife who killed husband who kept a mistress, and beat her repeatedly. ARTICLE 6. Consummated, frustrated and attempted felonies. -- Consummated felonies, as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all 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. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. STAGES OF EXECUTION 1) Consummated all elements necessary for EXECUTION and ACCOMPLISHMENT are present. 2) Frustrated -all acts of EXECUTON performed but not produce felony as a consequence by reason of Causes Independent of the will of perpetrator. (Recall CaIn) 3) Attempted commences commission of felony directly by overt acts, but not perform all acts of EXECUTION by reason of some Cause Or Accident other than his own spontaneous desistance.) (Recall CorA) COMMENTS: 1) Use of firearm: a) If X shot Y and Y was hit only on the thigh, or arms, with intent to kill because Y was running away crime is attempted homicide/murder. (because not all acts of execution were performed because of CorA) b) If X shot Y and Y was hit with a mortal wound on the head, or heart but survived due to medical intervention crime is frustrated homicide/murder (because all acts of execution are present due to mortal wound but crime not accomplished because of CaIn) c) If X shot Y and Y suffered a mortal wound on the head and he subsequently died crime is consummated homicide/murder (because all acts of execution and accomplishment are present). 2) In case of rape: a) If X tried to commence sexual intercourse, but because of Ys resistance, and he was distracted and scared for fear of discovery -- crime is attempted rape. (because not all acts of execution were performed because of CorA)

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Cite People vs. dela Pena, 233 SCRA 573 (1994) Facts: Accused dela Pena waylaid 9-year-old Rose Marasigan on her way to school. Due to her resistance, and then playing dead, the accused panicked, could not get an erection, and fled. Valenzuela RTC held its consummated rape and penalty was reclusion perpetua. Held: SC, however, modified Valenzuela RTC decision and held its only attempted rape. Although mere touching consummates rape, rape presupposes an erect penis because without erection, there can be no penetration, no matter how slight, and without penetration, there can be no consummation. Cite People vs. Campuhan, (2000 case) Facts: Mother saw accused and houseboy Campuhan in the act of almost raping her 4-year-old daughter in a kneeling position. Medical findings indicated hymen was still intact but since in previous Orita ruling entry into labia without rupture of hymen already consummated rape, issue is whether or not its consummated, or attempted, rape only. Held: SC held its attempted rape only. Touching here means the penis indeed touched the labia and slid into the female organ, and not merely stroke the external surface. Some degree of penetration beneath the surface must be achieved, and the labia majora must be entered. Victim herself testified that penis grazed but did not penetrate her organ. There was only a shelling of the castle, but no bombardment of the drawbridge yet. b) If X shot Y and Y was hit with a mortal wound on the head, or heart but survived due to medical intervention crime is frustrated homicide/murder (because all acts of execution are present due to mortal wound but crime not accomplished because of CaIn) Cite People vs. Orita, 184 SCRA 105 (1990) Facts: Accused PC soldier Orita followed 19-year-old Cristina Abayan from party, used knife to force her to have sexual intercourse, but while on top, she managed to escape. Samar RTC convicted him of frustrated rape and case went on appeal. Held: SC held its consummated rape, and not mere frustrated rape only. Citing People vs. Erinia, no frustrated stage anymore and Erinia ruling was a stray decision. It is settled that slight penetration consummates rape, and perfect penetration not essential. Mere touching of lips of vagina, without laceration of vagina or emission, already consummates rape. 3) In case of arson: a) If X was still placing flammable materials in strategic places in Ys house, and arrested, then crime is attempted arson only. b) If X has already finished placing all flammable materials in strategic places in Ys house, and lighted his match but arrested at that point (or wind blow it away), then crime is frustrated arson. c) If X placed flammable materials in Ys house, lighted his match and burned any part of house, no matter how minor, then crime is consummated arson. ARTICLE 7. When light felonies are punishable. -- Light felonies are punishable only when they have been consummated, with the exception of those committed against persons or property. ARTICLE 8. Conspiracy and proposal to commit felony. -Conspiracy and proposal to commit felony are punishable only in cases in which the law specially provides a penalty therefor. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is a proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. a) Distinguish Conspiracy vs. proposal (Article 8, RPC) Once proposal is accepted, it becomes a conspiracy. COMMENTS: 1) Conspiracy and proposal to commit a crime are merely preparatory acts, within the subjective phase -- hence, the law regard them as innocent or at least permissible, except in certain exceptional cases. 2) Mere proposal to commit treason, rebellion and coup are punishable already. 3) Mere conspiracy to commit treason, rebellion, coup and sedition are also punishable already because of threat to public order. 4) The conspirators should not actually commit treason, rebellion, coup and sedition otherwise, they will be held liable for treason, rebellion, etc, and not mere conspiracy to commit treason, rebellion, etc. ARTICLE 9.

Grave felonies, less grave felonies and light felonies. -- Grave felonies are those to which the law attaches the capital punishment, or penalties which is any of their periods are afflictive, in accordance with Article 25. Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional. x x x Light felonies are those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding P200, or both, is provided. Classification of felonies: 1) Grave felonies -- law attaches capital punishment, or in any of their periods are afflictive. 2) Less grave felonies -- law punishes with penalty which in maximum period is correctional. 3) Light felonies -- law provides penalty of arresto menor, or fine not more than P200, or both, is provided. COMMENTS: 1) Article 9 read in relation to Article 25 (Classification of penalties): a) Afflictive penalties: Reclusion perpetua, reclusion temporal down to prision mayor. b) Correctional penalties: Prision correccional down to arresto mayor. c) Light penalties: Arresto menor ARTICLE 10. Offenses not subject to the provisions of this Code. -- 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. COMMENTS: 1) The provisions of RPC on penalties cannot apply to offenses punishable under special laws. 2) Distinguish reclusion perpetua (RPC) from life imprisonment (special laws). 3) Plea of guilt, attendant circumstances not apply to offenses punishable under special law. eg. No plea of guilt in R.A. 9165. 4) Supplementary means supplying what is lacking, or additional. If the special law is silent, then court can apply provisions of RPC in a suppletory effect. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 1) JUSTIFYING CIRCUMSTANCES (Article 11) -- Act is lawful such that there is no crime and no criminal hence, accused incurs no criminal liability nor civil liability. 2) EXEMPTING CIRCUMSTANCES (Article 12) Act is wrongful, but actor not acted voluntarily, intelligently nor intentionally, neither is there dolo or culpa. Hence, there is no criminal but there is civil liability, except in no. 4 (accident) and no. 7 (lawful, insuperable cause). 3) MITIGATING CIRCUMSTANCES (Article 13) there is criminal and civil liability but reduced. 4) AGGRAVATING CIRCUMSTANCES (Article 14) There is criminal and civil liability and penalty increased. 5) ALTERNATIVE CIRCUMSTANCES (Article 15) Its either mitigating or aggravating depending on the nature and effects of the crime. JUSTIFYING C I R C U M S T A N C E S (Article 11)

ARTICLE 11. Justifying circumstances. -- The following do not incur any criminal liability: D 1) Anyone who acts in Defense of his person or rights, provided the following circumstances concur: First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. R 2) Anyone who acts in person of the person or rights of his Relatives such as spouse, ascendants, descendants or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, provided that the first two requisites are present, and in case provocation was given by the person attached, the one defending had no art therein. S 3) Anyone who acts in defense of Stranger, provided that the first two requisites are present and that the person defending be not induced by revenge, resentment or other evil motive. A 4) Any person who, In order to Avoid evil or injury, does an act which causes injury to another provided the following requisites are present: x x x R 5) Ay person who acts if fulfillment of duty or lawful exercise of Right or office. A 6) Any person who Acts in obedience to an order issued by a superior for lawful purpose (Recall DRSARA) 1) SELF-DEFENSE

a) Elements of self-defense: U 1) Unlawful aggression -- physical act manifesting actual or imminent danger to life or limb. R 2) Reasonable necessity of means employed -- there must be no other means to prevent or repel aggression so means must be reasonable; no excessive force.

L 3) Lack of sufficient provocation or no provocation at all given by person defending himself or provocation not sufficient to cause violent aggression on part of victim. (Recall URL) b) See People vs. Narvaez --121 SCRA 389 (1983); and People vs. Ignacio (Feb. 10, 2000) c) Defense of property cannot justify killing a human being, even an intruder unless there is actual, grave or imminent danger to ones life because mere defense of property can never be equated with value of human life. COMMENTS: 1) Self defense here pertains to defense of person or body of person assaulted, his rights to property, and honor prompted by instinct of self preservation and impossibility for State to protect each citizen from unlawful aggression all the time. In self-defense, defense of relative and strangers, most important element is presence of Unlawful aggression on part of victim. Without unlawful aggression, there can be no reasonable necessityand nothing to prevent or repeal nor lack of sufficient provocation on part of accused, which become immaterial. 2 ) UNLAWFUL AGGRESSION: This is equivalent to physical assault or threatened assault which is IMMEDIATE (or actual), or at least IMMINENT. In other words, there must be a direct, immediate and actual or at least, imminent peril, or threat, to ones life or limb. 3) PERIL to ones life: a) Actual danger must be present, or actually exist. ) b) Imminent -- danger is on the point of happening; its not required that attack already begins, for it may be too late. 4) A slap on the face constitutes unlawful aggression since face represents a persons dignity and hence, a serious personal attack. But mere insulting words, without actual physical assault, not constitute unlawful aggression to warrant killing. 5) RETALIATION negatives self defense. In retaliation, aggression commenced by injured party/victim already ceased when accused attacked him. In self-defense, required that aggression still existing when unlawful aggressor was injured or disabled by person making defense. Hence, there must be no appreciable length of time between aggression made by injured part and killing done by one making defense. 6) When aggressor flees, there is no more unlawful aggression, except if aggressor flees to take a more advantageous position, like getting a weapon, or asking assistance. 7) The rule now is STAND GROUND WHEN IN THE RIGHT. So where accused is where he has the right to be, law does not require him to retreat when his assailant is rapidly advancing upon him with a deadly weapon. 8) Also, there is no unlawful aggression when there is agreement to fight since X and Y here are reciprocal aggressors of each other. 9) Reasonable belief can constitute valid self-defense: If X used a toy pistol in assaulting Y, Y may kill X in valid self defense constituting MISTAKE OF FACT. 10) Defense of property can be invoked as justifying circumstance only when it is coupled with an attack on the person of one entrusted with said property. Cite People vs. Narvaez, 121 SCRA 389 (1983) Facts: Fleischer and Rubia, with three workers, tried to fence off the property of Narvaez, and rudely awakened him from his nap. When he tried to talk to him, Fleischer berated him instead, saying: No, gaddemit, proceed. Go ahead. Overcome with passion and obfuscation, he shot Fleischer and when Rubia fled towards the jeep to get a rifle, Narvaez shot him dead too. South Cotabato CFI convicted him for double murder with two reclusion perpetua. On appeal, he set up defense of property, particularly Article 429 (self-help doctrine) which recognizes that the owner or lawful possessor may use force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. Held: SC modified conviction to two homicides only because treachery was negative by passion and obfuscation when he was berated by Fleischer. There was incomplete defense of property because although there was unlawful aggression, and lack of provocation on part of Narvaez, there was no reasonable necessity to kill two victims since the aggression on Narvaezs property was not coupled with an attack or direct assault on his person. But because of incomplete defense of property where two requisites are present, accused was entitled to a lowering by two degrees. 11) REASONABLE NECESSITY: a) This refers to RATIONAL EQUIVALENCE (only what law requires), and not MATERIAL COMMENSURABILITY. If X attacks Y with a bladed weapon, X may use his gun to ward off the aggression. b) The reasonable necessity depends upon circumstances, particularly time, location, physical condition, relative size and weight of parties, and kind of weapon used. c) Means employed by person making defense need only be RATIONALLY EQUIVALENT OR NECESSARY to prevent or repel an aggression. 2) DEFENSE OF RELATIVE

a) Elements of defense of relative: U 1) Unlawful aggression; R 2) N Reasonable necessity of means employed; and P 3) In case Provocation was given by person attacked, one defending had no part therein. (Recall URP) b) In People vs. Ricohermorso, 56 SCRA 431 (1974) the son had prior knowledge that his father, and his brother-in-law were the unlawful aggressors hence, no defense of relative can be credited in his favor. Neither was there state of necessity or avoidance of greater evil because in holding the arms of the victims son, he did not prevent, but instead facilitated, even ensured, evil. COMMENTS: 1) Covers defense of spouse, ascendants, descendants, legitimate, natural or adopted brothers and sisters or relatives by affinity up to the fourth civil degree. 2) The first two requisites must be present, and third, that in case provocation was given by person being attacked, the one defending had no part therein meaning, no knowledge, or participation, in the aggression. 3) The gauge of reasonable necessity in defense of relative is as it appears to the person repelling the aggression or that he did not know that his relative commenced the aggression. 4) Reason here is that the one defending relative was prompted by some noble or generous sentiment in protecting a relative. But if he knew, he becomes criminally liable, even as a co-conspirator, or at least an accomplice. 3) a) U R N DEFENSE OF STRANGER Elements of defense of stranger: 1) Unlawful aggression; 2) Reasonable necessity of means employed; and 3) Person defending Not induced by revenge, resentment or other evil motive. (Recall URN) b) Check also Article 69 on effects of incomplete self-defense, defense of relative and defense of stranger results in lowering of penalty by one degree, provided majority of requisites are present. COMMENTS: 1) The first two requisites must be present, and third, that the one defending be not induced by revenge, resentment or other evil motive. 2) Strangers -- any person not included in the enumeration of relatives in par. 2. Hence, second cousins are deemed strangers, also your best friend. 3) Basis: ordinary man is not expected to stand idly while his companion is killed without attempting to save his friends life. 4) E G O AVOIDANCE OF GREATER EVIL or INJURY 1) Evil sought to be avoided actually exists. 2) Injury feared Greater than that done to avoid it. 3) No Other practical and less harmful means of preventing it. (Recall EGO) COMMENTS: 1) Causes damage to another -- refers to injury to persons and damage to property. 2) 1st requisite: Evil must actually exist and not merely expected or anticipated to happen in the future. 2nd requisite: Instinct of self-preservation makes one feel that his own safety more important than that of another. But greater evil should not be brought about by negligence of the actor, and must not result in violation of a law. 3rd requisite: Although there is no civil liability under Article 11, only exception is state of Necessity where civil liability is borne by persons benefited in proportion to extent of benefit received. 3) Cite People vs. Ricohermoso, 56 SCRA 431 (1974) FACTS:Geminiano went to house of Ricohermoso to ask for his share in the land cultivated by Ricohermoso which belonged to Geminiano. Ricohermoso, however, unsheathed his bolo and attacked Geminiano from the left while Severo(Ricohermosos father-in-law) got an axe and attacked Geminiano from the right. At the same time, Severos son suddenly embraced Geminianos son, Marianito who was carrying a gun slung on his shoulder, that Marianito fainted. Geminiano died and when prosecuted for murder, Severos son invoked Necessity allegedly in order to avoid greater evil or injury. HELD: SC affirmed conviction of Ricohermoso, Severo as well as Severos son, Juan for Murder of Geminiano, under theory of conspiracy. Juan cannot invoke avoidance of greater evil because on the contrary, by disabling Marianito, he insured evil to be consummated by forestalling any interference in the felonious assault. After all, Marianitos act of defending his father who was being attacked is not an evil but legitimate defense of relative.This is because it was accused Ricohermoso and Severo who were unlawful aggressors here. 5) Per Due FULFILLMENT OF DUTY or LAWFUL EXERCISE OF RIGHT/OFFICE 1) Accused acted in Performance of duty or lawful exercise of right or office. 2) Injury caused as necessary consequence of Due performance of duty or lawful exercise of right or office. (Recall PerDue)

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COMMENTS: 1) Fulfillment of duty: In People vs. Oanis, although Oanis and companion acted in performance of duty, they acted not in due performance thereof because they acted with excessive force in summarily killing the victim without first ascertaining the identity, without any risk to themselves. In People vs. Delima, police acted in due performance of duty when he shot the fleeing escaped prisoner who refused to part with his bamboo lance and in fact, earlier tried to hit the police with his lance. O P M 6) 1) 2) 3) (Recall OBEDIENCE TO SUPERIOR ORDER Order issued by superior. Lawful Purpose (or at least patently lawful) Means to carry out order also lawful. OPM)

COMMENTS: 1) Obedience to superior order: Cite Tabuena vs. Sandiganbayan, 268 SCRA 332 (1997) FACTS: President Marcos ordered Tabuena, General Manager of MIAA, through a Memorandum to pay P55 million directly to the Office of the President what MIAA owned to PNCC, pursuant to Ongpin memorandum. As instructed, Tabuena delivered in three installments, on January 10, 1986 and January 16, 1986 the amounts of P25 million, respectively, and on January 31, 1986 the remaining P5 million. Sandiganbayan convicted Tabuena for Malversation and case appealed. HELD: SC reversed Sandiganbayan decision, and acquitted Tabuena, and Peralta, for Malversation. Tabuena is entitled to the justifying circumstance of obedience to superior order since the order was patently lawful to pay an existing obligation, and he as subordinate was not aware of the illegality. In brief, he was acting in an honest mistake of fact committed in good faith. EXEMPTING C I R C U M S T A N C E S (Article 12)

ARTICLE 12. Exempting circumstances. -- The following are exempt from criminal liability: I 1) An Insane or imbecile person, unless the latter has acted during a lucid interval. x x x U 2) A person 15 years of age or Under at the time of the commission of the crime x x x D 3) A person above 15 years of age but below 18 yeas old, unless he acted with Discernment, in which case, such minor shall be proceeded against in accordance with Article 80 of this Code. x x x Acc 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. For 5) Any person who acts under the compulsion of an Irresistible Force. Fear 6) Any person who acts under the impulse of an Uncontrollable Fear. Fail 7) Any person who Fails to perform lawful act when prevented by some lawful or insuperable cause. (Recall IUDAccForFearFail) 1) INSANITY a) Basis for exemption is complete deprivation of intelligence and complete deprivation or absence of freedom of will, not mere feeblemindedness (Recall cognition and volition tests). b) Insanity must exist and proven before and during commission of crime, not after which is already immaterial as defense. See People vs. Pambid March 15, 2000/People vs. Puno 105 SCRA 151 (1981). c) Senility or second childhood is only mitigating. d) The presumption is that every person is sane hence, one who alleges insanity has the burden of proof of establishing that accused was really insane at the time of the commission of the offense. But once accused has been declared medically insane, the presumption is that he is continuously insane and the burden is on the prosecution to establish that accused, who was medically insane, acted during a lucid interval. e) Presumption is that child acted without discernment and prosecution has burden of proof to show otherwise. COMMENTS: 1) Two tests for insanity: a) Complete deprivation of intelligence (Cognition test) b) Complete deprivation of freedom of will (Volition test) 2) While insanity is not always exempting if insane acts during a lucid interval, imbecility is always exempting. An imbecile is one who, although advanced in age, has low mental development of between 2 and 7 years old. 3) Mere abnormality (or mild mental retardation) does not exempt form criminal liability. There must be complete deprivation of intelligence, or discernment (capacity to distinguish right from wrong). 4) If A is sane (not hospitalized nor declared insane), burden of proof rests of A as accused to establish that he was insane when he committed crime because presumption is in favor of sanity.

But if A already declared insane/hospitalized, he is presumed to be continuously insane and burden of proof shifts to B, the victim, to prove that A who injured B acted during a lucid interval. 5) In schizophrenia or split personality, if advanced schizophrenia, it is exempting; if only mild schizophrenia, only mitigating (such illness of the offender which diminishes exercise of willpower of offender without depriving him of consciousness of his actions.) 6) If sane during commission of crime but becomes insane during conviction -- court must suspend service of sentence until he recovers. 7) Evidence of insanity must refer to time immediately preceding and during the commission of the crime. Insanity subsequent to the commission of the time will only suspend proceedings, until accused recovers. If accused becomes insane only during service of sentence, accused is hospitalized until he recovers, then resumes service of sentence. 8) Hypnotism and somnambulism can also be exempting, akin to insanity. 2) 15 YEARS OF AGE or UNDER a) If 15 years old or under (ABSOLUTE IRRESPONSIBILITY) no criminal and no civil liability. COMMENTS: 1) 15 years of age or under is exempt from any criminal liability because of ABSOLUTE IRRESPONSIBILITY. 2) Reckoning period is age at the time of the commission of the crime, not during the date of his trial. 3) ABOVE 15 BUT BELOW 18, UNLESS ACTED WITH DISCERNMENT

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EFFECTS OF MINORITY/ DEGREE OF RESPONSIBILITY a) Under 15 years old, or exactly 15 years old (ABSOLUTE IRRESPONSIBILITY) b) Over 15 years old but less than 18 (with or without discernment (CONDITIONAL RESPONSIBILITY). 1) Without discernment no liability 2) With discernment mitigated liability (privileged mitigating) d) Over 18 years old and less than 70 years old (FULL RESPONSIBILITY) full criminal and full civil liability. e) Over 70 years old (MITIGATED RESPONSIBILITY) one degree lower similar to a privileged mitigating circumstance. If death penalty meted out, it shall be suspended, just like a pregnant woman and within one year after her delivery. COMMENTS: 1) Over 15 years old but less than 18 years of age -- depends on whether or not he acted with discernment. Discernment means capacity to appreciate the moral consequences of his unlawful act, or distinguish difference between right or wrong. 2) If minor is adjudged criminally irresponsible for acting with discernment, he enjoys suspended sentence under P.D. 603. a) If behaves properly case dismissed. b) If misbehaves/incorrigible -- go back to court for execution of judgment. c) Meantime, time spent under detention -- deducted from actual service of sentence imposed. If penalty less than 6 years -- can apply for probation. 3) When minor is disallowed form availing of suspended sentence: a) If penalty is death or life imprisonment. b) If availed of suspended sentence once before (incorrigible). c) Upon conviction, already over 18 years of age already. A C I N 4) 1) 2) 3) 4) (Recall ACCIDENT Accused performing a lawful Act. With due Care. Causes Injury to another by mere accident. No fault or intention of causing it. ACIN)

COMMENTS: 1) Accident defined: It is something that happens outside the sway of our will, and although it comes about through some act of our will, it lies beyond the bounds of humanly foreseeable consequences. 2) If, however, the consequences are foreseeable, and injury occurs due to act of accused, it is a case of negligence, and accused not exempt from criminal liability. 3) If X shot the ground to stop a quarrel, and Y, a bystander, was hit and killed -- crime is Reckless imprudence resulting in homicide, and not an accident because the consequence was foreseeable because crowded place. 4) Repeated blows and excessive force negatives accident.

5) a) b) P I T

IRRESISTIBLE FORCE Basis is complete absence of FREEDOM, or VOLUNTARIESS. Elements of irresistible force: 1) Compulsion by means of Physical force. 2) Physical force is Irresistible. 3) Physical force from Third person/outsider. (Recall PIT) c) Force which renders victim to a mere instrument without any freedom hence, incapable of committing a crime. See People vs. Loreno, 130 SCRA 311 (1984); People vs. Foronda, 222 SCRA 71 (1993) COMMENTS: 1) Force here must be so irresistible as to reduce actor to a mere instrument who acts not only without a will, but even against his will. Actor thus acts without freedom, intelligence or intent. 2) There is physical violence employed which must be present and actual, or imminent and impending inducing a well-grounded apprehension of death of serious bodily harm if act is not done by actor. Threat of future injury is not enough. 3) Also, the compulsion is such character that there is no opportunity for escape nor self defense in equal combat. 6) Gr Im UNCONTROLLABLE FEAR 1) Threat causes fear of equal, or Greater evil than that required to commit it. 2) Evil so Imminent and grave that ordinary man would succumb to it. (Recall GrIm) COMMENTS: 1) This refers more to something like psychological threat, not force or physical violence of irresistible force. 2) The fear of greater evil must be so grave and imminent that ordinary man would have succumbed to it. 3) Threat is also not remote, fanciful or speculative, but actual or at least imminent and impending. Not threat of mere future injury. 4) Like irresistible force, there is no opportunity for escape nor self defense in equal combat. 7) Fa Re In FAIL DUE TO LAWFUL/INSUPERABLE CAUSE 1) Accused Fails to perform an act. 2) Act Required by law to be done. 3) Failure due to lawful or Insuperable cause. (Recall FaReIn) See People vs. Bandian, 63 Phil. 530 (1936) ABSOLUTORY CAUSES Distinguish Entrapment vs. Instigation See Araneta vs. CA, 142 SCRA 532 (1986) COMMENTS: 1) Example is a public officer who fails to deliver the person arrested within 36 hours to the proper judicial authority because of the distance which required a journey of three days. Should have been liable for arbitrary detention except for a lawful, insuperable cause. 2) Also refers to ABSOLUTORY CAUSE were act committed should have been a crime but for reasons of public policy and sentence, no penalty is imposed. 3) Distinguish ENTRAPMENT vs. INSTIGATION: a) In entrapment, the police officer merely facilitates or provides ways and means/ opportunity for accused to execute accuseds criminal design crime and arrests the accused in the act. The original mens rea, however, still emanates from the accused hence, it is not a bar for prosecution. b) In instigation, the police officer himself directly induces or instigates accused to commit a crime and arrests him in the act. Mens rea here emanates from police officer himself who becomes a principal by inducement. Hence, this is a bar for prosecution. 4) Cite Araneta vs. CA (1986) Facts: Petitioner Aquilina Araneta approached and suggested to Mrs. Yopongco for the former to facilitate Mrs. Yopongcos claim for death benefits of her husband under Workmens Compensation. Ms. Araneta was caught in the act of receiving money and convicted by lower court. On appeal, she interposed the defense of instigation. Held: SC affirmed her conviction because it was Ms. Araneta who initiated the idea of Ms. Yopongco. The mens rea came from her hence, it was a legitimate entrapment, and not unlawful instigation. MITIGATING CIRCUMSTANCES

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a)

ARTICLE 13. Mitigating circumstances: The following are mitigating circumstances. N 1) Those mentioned in the preceding chapter, when Not all requisites to justify or exempt the act are attendant.

U I S A N S S I N a)

2) That the offender is Under eighteen (18) years of age or over 70. In the case of the minor, he shall be proceeded against in accordance wth Article 80. 3) That the offender had no Intention to commit so grave a wrong as that committed. 4) That Sufficient provocation or threat on the part of the offended party immediately preceded the act. 5) That act was committed in Immediate vindication of a grave offense to the one committing a felony x x x. 6) That of having acted from an impulse so powerful as Naturally to produce passion and obfuscation. 7) That offender voluntarily Surrenders or confesses his guilt prior to the presented of evidence for the prosecution. . 8) That offender is deaf, dumb or blind or Suffering from physical defect which restricts his means of action, defense or communication with his fellow beings. 9) Such Illness of the offender which would diminish exercise of willpower without depriving him of consciousness of his acts. 10) Other circumstances of similar or analogous Nature. (Recall NUISANSSIN) Distinguish ordinary mitigating from privileged mitigating

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Privileged mitigating: 1) Above 15 but less than 18 years: Penalty always one degree lower than that prescribed by law. 2) Incomplete justifying or exempting: lower by at least one degree provided majority of the conditions to justify or exempt are present. 3) Two or more mitigating and no aggravating: always lower by one degree. But if there is one aggravating, lower only to the minimum period of the prescribed penalty and not lower it by degree, regardless of number of mitigating circumstances. COMMENTS: 1) Mitigating circumstances do not justify or exempt from criminal and civil liability, but merely reduces liability of the offender. Basis is the diminution of freedom of action, intelligence or intent, and on the milder, or lesser, perversity of the offender. 2) Effects of ordinary/privileged mitigating: a) Ordinary mitigating is susceptible of being offset by any aggravating circumstance; while privileged mitigating cannot be offset by aggravating circumstance. b) Ordinary mitigating lowers it to minimum period, if not offset by aggravating circumstance; while privileged mitigating lowers it not only to period, but by an entire degree than that provided by law. (eg. Minority of 15 but less than 18 years old) 1) a) b) INCOMPLETE JUSTIFYING OR EXEMPTING Unlawful aggression must always be present to constitute incomplete justifying or exempting. If there are three requisites, at least two must be present to effect a lowering by one degree. COMMENTS: 1) Incomplete justifying include: a) All six justifying circumstances when not all requisites attendant. (But first, unlawful aggression must be present in self defense, defense of relative/stranger) b) Exempting such as Minority, Accident, and Uncontrollable fear. 2) Example is People vs. Narvaez where it could have been legitimate defense of property, except that reasonableness of means employed to prevent or repel aggression was not attendant. 2) OVER 15 BUT UNDER 18 YEARS OF AGE or OVER 70 YEARS OLD a) If minor more than 15 years old but less than 15 years and acted with discernment court shall apply suspended sentence under P.D. 603. b) If more than 15 but less than 18 years always one degree lower (privileged mitigating) COMMENTS: 1) The AGE of accused at time of commission of crime determines whether or not avail of this mitigating circumstance. 2) Over 70 years old: a) It is ordinary mitigating circumstance only. b) It becomes privileged mitigating if the offender committed an offense punishable by death (Article 47, par. 1) and when death sentence already imposed, it shall be suspended and commuted. 3) NO INTENT TO COMMIT SO GRAVE A WRONG a) Must be a notable and evident DISPROPORTION of the means employed and the resulting INJURY. b) Basis is INTENTION when crime actually committed, not when crime planned. COMMENTS: 1) INTENTION being internal, the intent to kill or not is judged based on the overt acts and means employed.

2) Basis: the weapon used, the part of body injured, the injury inflicted, and the manner injury is inflicted determine whether or not accused intended the wrong committed. If X boxed Y at the stomach, no intent to kill. But if Tyson boxes Y at the stomach, intent to kill can be inferred because Tyson is a professional boxer. 4) Pr Of Im SUFFICIENT PROVOCATION OR THREAT IMMEDIATELY PRECEDED ACT 1) Provocation must be sufficient. 2) Provocation originated from Offended party; and 3) Immediately preceded the act. (Recall PrOfIm)

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a) See requisites (Recall PrOfIm) b) Must immediately precede the criminal act coming from the offended party in order for it to be a mitigating circumstance. c) See People vs. Pagal, 79 SCRA 570 (1977) where both accused killed their former employer due to previous maltreatment. SC, however, did not credit in their favor sufficient threat or provocation because maltreatment as a source of provocation was not immediate, but happened several weeks, or months, prior to the killing. COMMENTS: 1) Sufficient provocation means adequate to excite a person to commit the wrong, and must be proportionate to its gravity. 2) Provocation means any unjust or improper conduct or act of offended party which is capable of exciting, inciting or irritating anyone to the point of triggering the attack. 3) Provocation must be IMMEDIATE or immediately PRECEDE commission of crime. 4) Also, provocation must originate or come from offended party. Eg. A immediately stabbed B for calling him a thief or wife shot husband who boxed her and maltreated her repeatedly. 5) IN IMMEDIATE VINDICATION OF A GRAVE OFFENSE.

a) Felony must be committed in immediate vindication of a grave offense done on the offended, his spouse, ascendant, descendant, etc. Immediate here means proximate allowing a lapse of a period of time. b) See People vs. Parana, 64 Phil. 331 (1937) where SC lowered crime from murder to homicide and credited as mitigating circumstance immediate vindication of a grave offense after accused was slapped by Mr. Montinola the night before, although the killing happened the following morning already, after several hours had already lapsed. c) Distinguish Sufficient Provocation from Immediate Vindication 1) In provocation, cause need not be grave offense; in vindication, cause must be a grave offense. 2) In provocation, cause must be immediate; in vindication, cause need not be immediate, but only proximate. COMMENTS: 1) Unlike sufficient provocation where provocation must immediately precede the act, immediate vindication means proximate. Probably because offense to honor lingers longer and is worse than mere provocation. 2) Basis for determining gravity of offense in vindication are as follows: social standing of accused, the place, the time, the persons witnessing the incident when insulted was hurled. 6) IMPULSE SO POWERFUL AS NATURALLY TO PRODUCE PASSION OR OBFUSCATION.

a) See requisites of passion or obfuscation b) Must arise from legitimate feelings and emotions like intense jealousy arising from married or amorous relations (People vs. Muit 117 SCRA 696(1982) but not if coming from a spirit of lawlessness, or if stemming from carnal lust. (People vs. Aquino January 20, 2000). c) This can never co-exist with evident premeditation which requires lapse of time to premeditate the commission of the offense. COMMENTS: 1) Basis: causes naturally producing in a person powerful excitement or uncontrollable fury that he loses his reason and self-control, thereby diminishing the exercise of his willpower. 2) Even if here is passion and obfuscation, if committed in a spirit of lawlessness (like vengeance or retaliation) cannot be basis for this mitigating circumstance. Common-law relationship generally cannot invoke this mitigating circumstance, except where grave abuse was evident against the other. 3) Vindication of grave offense cannot co-exist with passion and obfuscation. Invoke only one. If longer period of time, preferable to invoke vindication of grave offense. 4) Neither can one invoke both sufficient provocation as well as passion and obfuscation. Invoke only one. 5) Passion and obfuscation incompatible with treachery. This is because passion and obfuscation means overcome by raging fury that he loses his self-

control at the spur of the moment (nabigla) while treachery means offender consciously and deliberately adopted means, methods in attack. (hindi biglaan). 7) VOLUNTARY SURRENDER OR CONFESSION OF GUILT.

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a) Requisites of voluntary surrender: Not 1) That offender was Not actually arrested yet; Su 2) That offender Surrenders to a person In authority; and Vo 3) That surrender is Voluntary and unconditional and not because there is no means for escape. (Recall NotSuVo) See People vs. Dulos, 237 SCRA 141 (1994) b) C O P Requisites of voluntary plea of guilt: 1) Confess his guilt spontaneously. 2) It is done is Open court; and 3) Done Prior to presentation of evidence for prosecution. (Recall COP) See People vs. Jose, 37 SCRA 450 (1971)

c) In both instances, just like all ordinary mitigating circumstances, it will lower the penalty to minimum period and if two ordinary mitigating circumstances are present without any aggravating, it lowers penalty by one degree. d) These are two separate and distinct mitigating circumstances. COMMENTS: 1) Basis for mitigation: a) He acknowledges his guilt (remorse) hence, lesser perversity. b) Saves government from trouble and expense of arresting him. 2) Voluntary surrender: a) Must not be cornered yet hence, spontaneous. b) If warrant of arrest already issued, yet returned unserved because accused cannot be located, surrender still voluntary. 2) Must own up to the crime committed. Merely requesting a policeman to accompany him to headquarters without admitting liability is not voluntary surrender. 3) In People vs. Dulos,237 SCRA 141 (1984) after accused military officer shot GRO Susans boyfriend after Susan left with her boyfriend after receiving P500 from Dulos group, he went to Camp Siongco. Dulos was not placed under custody of military authorities as he was free to roam. Although accused claimed to have surrendered his gun to his superior officer Maj. Bermones this is not voluntary surrender contemplated by law. 4) Plea of guilt: a) Plea of guilt must be made before presentation of evidence for prosecution. If plea of guilt on appeal, not considered mitigating. b) Extrajudicial confession not mitigating, because it must be made in open court. c) Once prosecution starts presenting first witness, no more plea of guilt allowed. d) A conditional plea of guilt is not mitigating. Because a plea of not guilty will be entered if accused puts a condition. 5) Cite People vs. Jose (1971) -- When his co-accused were convicted and sentenced to death, Pineda argued that it was the duty of the court to insist on his presence during all stages of the trial. SC, however, said that while a plea of guilt is mitigating, it also constitutes an admission of all the material facts alleged in the Information, including all the attendant aggravating circumstances. Since Pined pleaded guilty, it was not incumbent upon the trial court to receive his evidence, or require his presence in court. 8) OFFENDER IS DEAF, DUMB OR BLIND OR SUFFERING FROM PHYSICAL DEFECT.

a) The physical defect must affect the means of action, defense or communication of the offender with his fellow human beings. COMMENTS: 1) Physical defect here refers to being armless, cripple, or a stutterer, whereby his means to act or defend himself or communication with his fellow human beings is limited. 2) Basis: Because offender is deaf, dumb or blind, he has no complete freedom of action and theres diminution of freedom/ voluntariness. But this must be related to the capacity to commit offense. 9) SUCH ILLNESS OF THE OFFENDER WHICH RESTRICTS HIS MEANS OF ACTION, ETC.

a) Such illness must only diminish the exercise of the willpower of the offender but must not deprive him of the consciousness of this acts; otherwise, it will be exempting. COMMENTS: 1) Refers to a diseased mind but not amounting to insanity -- such as mild behavior disorder, post-traumatic stress disorder, or acute neurosis. 2) Diseases of a pathological state which trouble the conscience or will, like a mother who, under influence of a puerperal fever, killed her child the day following her delivery. 3) Cite case of People vs. Bandian should also apply here. 10) a) OTHER CIRCUMSTANCES OF SIMILAR OR ANALOGOUS NATURE. Similar to mitigating circumstances found in paragraphs 1 to 9 of Article 13. COMMENTS: 1) Analogous circumstances: a) Over 60 years old, and with failing eyesight. b) Voluntary restitution of property stolen by accused or immediate restitution of amount malversed is akin to voluntary surrender. c) Testifying for the prosecution is analogous to voluntary surrender. AGGRAVATING C I R C U M S T A N C E S (Article 14)

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ARTICLE 14. Aggravating circumstances. The following are aggravating circumstances. A 1) That Advantage taken by the offender of his public position. I 2) That crime be committed in Contempt of, or Insult to public authorities. D 3) That act be committed with insult or Disregard due the offended party by reason of rank, age, or sex, or it be committed in the Dwelling of the offended party, if latter gave no provocation. A 4) That act be committed with Abuse of confidence or obvious ungratefulness. D 5) That crime be committed in the Palace of Chief Executive, or in his presence, or where public officers are engaged in the Discharge of their functions, or in a place Devoted to religious worship. U 6) That crime be committed in the nighttime, Uninhabited place, or by a band whenever such circumstances may facilitate the commission of the offense. S 7) That crime be committed on occasion of a Shipwreck, earthquake, or other calamity or misfortune. A 8) That crime be committed with the Aid of armed men who insure or afford impunity. R 9) That accused is a Recidivist. P 10) That accused has been Previously punished for an offense... P 11) That crime be committed in consideration of a Prize, reward or promise. I 12) That crime be committed by means of Inundation, fire, poison, explosion, or by use of any other means involving great waste or ruin. E 13) That crime be committed with Evident premeditation. E 14) The craft, fraud or disguise be Employed. A 15) That Advantage be taken by the offender of superior strength, or means employed to weaken the defense. T 16) That crime be committed with Treachery. There is treachery when x x x M 17) That Means employed or circumstances brought about which add ignominy to the natural effects of the crime. E 18) That there is unlawful Entry or when entrance is effected by a way not intended for the purpose. . D 19) That a wall, Door or window be broken. S 20) That crime be committed with aid of of minors below 15 years of age, or by means of motor vehicle, motorized watercraft, airship, or other Similar means. A 21) That wrong done in the commission of the crime be deliberaely Augmented by causing other wrong not necessary for its commission. (Recall AIDADUSAPIEEATMEDSA) 1) GENERIC AGGRAVATING a) Generally applies to all crimes, and if there is qualifying circumstance like treachery in murder, the other aggravating become mere GENERIC AGGRAVATING; b) Can be offset by ordinary mitigating circumstance and may be proved even if not alleged in Information; c) If not offset, serves to increase penalty to maximum period of penalty prescribed by law. 2) QUALIFYING AGGRAVATING a) Changes the nature of the felony itself, like abuse of trust and confidence in theft, making it qualified theft instead of simple theft. b) Cannot be offset by ordinary mitigating circumstance and cannot be proved if not expressly alleged in Information. c) Cannot be offset by ordinary mitigating circumstance because it changes not only nature but also name of offense itself, that offender becomes liable for a new and more serious offense. 3) INHERENT AGGRAVATING a) Considered integral part of the felony already, like unlawful entry in robbery with force upon things and does not increase the penalty.

COMMENTS: 1) Qualifying circumstances: a) Changes the nature of the crime b) Changes the designation of the offense Hence, they must be alleged in the Information otherwise, they only become generic aggravating circumstances if proven during trial. 2) Qualifying circumstances must also be proven beyond reasonable doubt because they increase penalty by DEGREE, not only by PERIOD. Eg. If qualified rape because incestuous rape and victim under 18, or victim is below seven years old, penalty is mandatory death. 1) That Advantage taken by the offender of his public position a) The offender must be a public officer who availed of influence or reputation inherent in his position to commit crime. b) Not appreciated when it is in an inherent element of the crime. c) See People vs. Gapain, 231 SCRA 728 (1994)

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COMMENTS: 1) Offender must be a public officer who deliberately took advantage of his public position to commit crime. (A jail warden who maltreats a prisoner under his custody. 2) Cannot be considered aggravating if already made an integral element of crime, as in Article 171. (eg. A DECS cashier who falsified check from P10,000.00 to P100,00.00 and pocketed the difference). 2) That crime be committed in Contempt of, or Insult to public authorities. a) Public authority is not the person against whom crime is committed otherwise, could be direct assault. b) Requisites: Offended party is engaged in exercise of his functions and despite offenders knowledge that offended party is public authority, offender committed crime in presence of public authority. c) See People vs. Rodil, 109 SCRA 308 (1981) COMMENTS: 1) Basis: Lack of respect for persons in authority 2) Must be committed in the presence of a PIA, and not a mere agent. 3) Person in authority -a public officer who is directly vested with jurisdiction, that is a public officer who has the power to govern and execute the laws. (eg. A councilor, mayor, government, barangay captain, and now school teacher, town or municipal health officer, agent of BIR, chief of police) 4) Agent of a PIA -a subordinate public officer charged with the maintenance of public order and protection and security of life and property. (eg. A barrio policeman, councilman, and any person who comes to the aid of a PIA) 5) Crime should not be committed against public authority, or else it becomes direct assault. Lack of knowledge that he is a PIA is a defense since offender had no intention to insult public authority. 3) That act be committed with Disregard due the offended party by reason of rank, age, or sex, or it be committed in the Dwelling of the offended party. a) This applies only to crimes against persons or honor. b) This does not apply when offender acted with passion or obfuscation. c) See People vs. Mandolado, 123 SCRA 128 (1983) COMMENTS: 1) If all four aggravating circumstances are present, they shall be considered only as one. 2) Disregard on account of RANK there must be a disparity in rank, like an attempt on the life of a general by a mere sergeant. a) Cite People vs. Rodil (1981) 3) Disregard on account of AGE the victim must be either too young or too old and the offender rather strong, such as when aggressor is 45 years old and the victim is an octogenarian. 4) Disregard on account of SEX the victim must be female. a) This aggravating circumstance of disregard of SEX not attendant when the offender acted with passion and obfuscation. b) When condition of being a woman is indispensable in commission of the crime, like rape or forcible abduction. 5) Disregard of DWELLING refers to building or structure, exclusively used for rest and comfort. a) Combination of house and store or a market stall where victim slept is not a dwelling. b) Basis: Violation of sanctity of privacy and abode. c) This does not apply if offended party gave the provocation. d) Dwelling is aggravating, even if offended did not enter the upper part of the house where where victim was, but shot from under the house.

e) Even if killing took place outside dwelling, it applies if commission of crime begun in the dwelling. Also, dwelling includes dependencies, the foot of the staircase, and enclosures under the house. 6) DWELLING NOT APPLICABLE: a) When both offender and offended party are occupants of the same house. b) When dwelling is inherent in crime: robbery by use of force upon things, or trespass to dwelling. c) Where dwelling where crime was committed did not belong to the offended party (stranger or guest only) but a victim raped in the boarding house where she is a bedspacer constitutes dwelling. Cite People vs. Daniel (1978) 4) That act be committed with Abuse of confidence or obvious ungratefulness.

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a) There must be a relationship of trust and confidence and offender abused such trust and such abuse facilitated commission of the crime. b) Relationship of trust and confidence must be: 1) Immediate and 2) Personal. COMMENTS: 1) ABUSE OF CONFIDENCE: a) This is inherent and not aggravating in Malversation, Qualified theft, Estafa by conversion, and Qualified seduction. 2) OBVIOUS UNGRATEFULNESS: a) The ungratefulness must be obvious, manifest and clear. Cite People vs. Mandolado (1983) FACTS: Mandolado and three others, who were trainess/draftees of AFP, just knew each other and got drank on a bus terminal. Mandolado and his companion suddenly started firing. HELD: SC held there is no obvious ungratefulness here because the accused and the victims only met for the first time hence, no personal and immediate relationship upon which confidence might rest between them. 5) That crime be committed in the Palace of Chief Executive, or in his presence, or where public officers are engaged in the Discharge of their functions, or in a place Devoted to religious worship. a) Necessary to show that accused deliberately and consciously sought any of these places to facilitate the commission of the crime. COMMENTS: 1) PLACE WHERE PUBLIC AUTHORITIES ENGAGE IN DISCHARGE OF DUTIES: a) Public authorities must be in their office discharging their public functions; and public authority may be the offended party. 2) CONTEMPT OF OR INSULT TO PUBLIC AUTHORITIES: a) Public authorities are outside their office; and public authority should not be the offended party. 3) If it is Malacanang, always aggravating. Also if involves the President who need not be in the Palace. His presence alone in the place enough to constitute this as aggravating. 4) Cemetery is not a place devoted for religious worship. 6) That crime be committed in the nighttime, Uninhabited place, or by a band. a) Nighttime means literally nocturnity or nighttime, not mere absence of light such as in a movie house; nighttime must also be consciously and deliberately adopted in order to facilitate commission of crime, avoid detection or arrest, and ensure or afford impunity. b) Uninhabited place means there is no opportunity to ask for help although not literally isolated or uninhabited (See People vs. Desalisa, 299 SCRA 35 (1994) where uninhabited place was considered aggravating because of shrubs and trees rendering assistance nil or unavailable, even if it was not actually uninhabited because of the presence of neighbors, who are relatives of the victim. c) By a band means at least four armed men, or malefactors. Each of them must be armed since if one of the four is not armed, band is not aggravating. d) Offender must be shown to especially seek these circumstances to ensure commission of crime; or offender took advantage thereof to insure or afford impunity. COMMENTS: 1) These three aggravating can be considered SEPARATELY. 2) Aggravating if: a) When it facilitated the commission of the crime. b) When offender especially sought it to insure commission of crime for purpose of affording impunity (avoiding arrest), or facilitating means of escape, or to insure concealment of offense. 3) NIGHTTIME a) Crime must begin and accomplished in nighttime.

b) Crime actually committed in darkness of night. Does not apply if place is well-lighted. c) This literally means nocturnity or from dusk till dawn. Dark place like theater not nighttime. UNINHABITED PLACE a) Could be LITERAL or where there are no other houses or isolated place. Or FIGURATIVE where there is no reasonably possibility of victim getting help. b) Cite People vs. Desalisa, 299 SCRA 35 (1994) BAND a) Whenever more than 3 armed malefactors shall have acted together in the commission of an offense, it is a BAND. b) All four armed men must take direct part in the commission of offense. If one of four armed men is a mere inducer, not a band. c) Band is considered in crimes against property, but not in crimes against chastity. d) Band is inherent in BRIGANDAGE hence, not aggravating here. 7) That crime be committed on occasion of a Shipwreck, earthquake, or other calamity or misfortune. a) Requisites: 1) There is a calamity or misfortune. 2) Offender took advantage of the chaotic condition from such misfortune. b) Basis of penalty: Commission of the crime adds to the suffering of the victim by offender taking advantage of the calamity or misfortune instead of helping the victim, showing greater perversity of the offender. COMMENTS: 1) Basis: Greater perversity of accused who, in the midst of a great calamity, instead of helping would add to the suffering of victims by taking advantage of their misfortune. 2) Other calamity or misfortune refers to other ocnditions of distress like conflagration, shipwreck, earthquake or epidemic. 8) a) b) band. That crime be committed with the Aid of armed men who insure or afford impunity. Requisites: 1) That armed men took part in commission of the crime. 2) That accused availed himself or relief upon their aid to commit crime. If there are more than three armed men, aid of armed men is absorbed in the employment of a COMMENTS: 1) This shall not apply when the attacking party and party attacked were equally armed. 2) If there are four armedmen, aid of armed men is absorbed by band. Armed men include armed women. 9) a) That accused is a Recidivist. Requisites: 1) Offender is on trial for one offense. 2) He was previously convicted by final judgment of another crime. 3) Both first and second offenses are embraced in the same Title. 4) Offender is convicted of the new offense. b) What controls is the time of trial, not the time of the commission of the offense. Time of trial means from arraignment until after sentence is announced by the judge in open court. COMMENTS: Section 7 of Rule 120 provides when judgment in a criminal case becomes final: a) After lapse of period for perfecting an appeal. b) When sentence has been partially or totally satisfied or served. c) When defendant expressly waived his right to appeal. d) When accused applied for probation. 2) There is recidivism even if the lapse of time between two felonies is more than ten (10) years. Recidivism taken into account no matter how many years intervened between 1 st and 2nd felonies. 3) Pardon does not oblierate fact that accused was a recidivist. But amnesty extinguishes penalty and its effects. 1) 4) 10) a) Cite People vs. Molina (2000) 5) 4)

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That accused has been Previously punished for an offense Requisites: 1) Accused is on trial for an offense. 2) Accused has previously served sentence for another offense, to which the law attaches an equal or greater penalty, or for two or more crimes to which it attaches a lighter penalty than that for the new offense. b) Recidivism vs. Habituality (Reiteracion):

1) In recidivism, enough that accused previously convicted by final judgment of an offense; in habituality, offender must be previously punished (must actually serve sentence for first offense). 2) In recidivism, two offenses must be embraced in same title of RPC; in habituality, two offenses need not be embraced in same Title of RPC. Habitual delinquency -within ten (10) years from last release or last conviction, of the crimes of Falsification, Robbery, Estafa. Theft, Serious or Less serious physical injuries ( Recall FRETSel), the offender is found GUILTY of any of said crimes a third time or oftener. Ten years from last release, or last conviction.

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1)

COMMENTS: Four kinds of Repetition: a)RECIDIVISM b)REITERACION (HABITUALITY) c) HABITUAL DELINQUENCY (MULTI-RECIDIVISM) d) QUASI-RECIDIVISM -- Any person who shall commit a FELONY after having been convicted by final judgment, before beginning to serve sentence, or while serving th same, shall be punished by MAXIMUM period of penalty prescribed by law for the NEW FELONY. 2) Cite People vs. Dioso, 132 SCRA 616

11) a)

That crime be committed in consideration of a Prize, reward or promise. Requisites: 1) Involves at least two principals: 1st, principal by inducement and 2nd, principal by direct participation. Both equally liable. 2) The price, reward or promise is previous to, and in consideration, of the commission of the criminal act. COMMENTS: 1) There must be two ore more principals here, the one who gives or offers the price or promise, and the one who accepts it, 2) When this is present, both are liable. Evidence must show that one of accused used money or other valuable consideration to induce another to perform the unlawful act. 12) That crime be committed by means of Inundation, fire, poison, explosion, or by use of any other means involving great waste or ruin. a) The wasteful means used by offender to accomplish the criminal purpose. COMMENTS: 1) If crime is arson, use of fire is inherent so absorbed. If someone dies, crime is still arson provided intention was really to put house on fire, not to kill. 2) Killing by means of inundation, fire, poison, explosion qualifies killing to murder. 3) All these must be deliberately used by offender to facilitate commission of crime. 13) That act be committed with Evident premeditation. a) Requisites of evident premeditation: T 1) Time when offender came to DETERMINATION to commit crime; and A 2) Overt Acts indicating that offender clung tenaciously to his determination to commit crime; and La 3) Sufficient Lapse of time between determination and execution allowing offender to calmly reflect on consequences of his actions. (Remember TALa) b) This is negatived by passion and obfuscation and two can never co-exist in one crime. c) See People vs. Lug-aw, 299 SCRA 308 (1994) See People vs. Ilaoa, 233 SCRA 231(1994) COMMENTS: 1) This means deliberate, conscious planning of unlawful act before executing it. 2) Cannot be appreciatd unless proof as to how and WHEN plan was hatched, or what time ELAPSED before crime was carried out. 3) Conspiracy generally presupposed evident premeditation. 4) Evident premeditation, while inherent in robbery, may be aggravating in robbery with homicide if premediTation included the killing of the victim. 5) Cite People vs. Lug-aw, 299 SCRA 308 (1994) FACTS: Victim Pal-loy was fencing boundary limits of land he was farming in Mountain Province when his daughter heard a shot. She immediately went uphill and saw Lug-aw and companion from a distance and her father about to draw his bolo when Lug-aw shot him dead. Lower court convicted accused for Murder qualified by treachery and evident premeditation. HELD: SC reduced murder to Homicide only. No evident premeditation because no proof as to the initial attack or that accused had sufficient time to reflect coolly and cling tenaciously to this criminal intent to kill. There is likewise no treachery because no particulars on how aggression commenced, or how acts leading to death actually unfolded."

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6) Cite People vs. Ilaoa, 233 SCRA 231 (1994) FACTS: The five accused were charged for gruesome murder of Nestor de Loyola who sustained 43 stab wounds. The conviction based on following circumstances: 1) Deceased was last seen drinking with some of accused; 2) Drunken voices of Ruben and Nestor were heard and victim Nestor was later seen being mauled by five accused; and 3) Some of accused borrowed tricycle of Alex around 2 am. HELD: SC reduced it from Murder to HOMICIDE only because: a) No evident premeditation because no proof of time when they decided to kill. Rather, evidence suggests a series of circumstances culminating in the killing constitutes an unbroken chain of events with no interval of time separating them for calculation and meditation. Also, no cruelty was present because not shown that they took delight in unduly prolonging victims physical suffering, but probably carried only by the intensity of the attack due to the fight. 14) That craft, fraud or disguise be Employed. a) Craft -- involves intellectual trickery and cunning on accuseds part.(eg. Accused used chocolates containing drugs to perpetrate rape; usually involves overt acts) b) Fraud -- involves insidious words or machinations to induce victim to act in a manner which would enable offender to carry out his criminal design; usually involves entrapping or beguiling language) c) Disguise -deliberately resorting to a device to conceal identity. See People vs. Empacis, 222 SCRA 59 (1993) COMMENTS: 1) Cite People vs. Empacis, 222 SCRA 59 (1993) FACTS: In Cebu, Empacis and Longomez pretended to be customers, bought food, rice and cigarettes and fired at victim until Peter, 13-year-old son, helped his father and two fled. HELD: Since accused Empacis and Langomes pretended to be bona fide customers to gain entry into the victims store, SC affirmed conviction for robbery with homicide and considered aggravating circumstance of CRAFT/FRAUD by falsely pretending to be legitimate customers. 15) a) I N K That Advantage be taken by the offender of superior strength. Requisites: There are three tests: 1) Notorious Inequality of forces; 2) Numerical superiority of accused over victim; and 3) Kind of weapon used by accused out of proportion to defense available to victim. (Recall INK) b) Basis: To purposely use excessive force out of proportion to the means of defense available to person attacked, or victim. The means used, however, must not totally or completely eliminate possible defense of victim otherwise, it falls under treachery. c) No abuse of superior strength if crime committed out of passion and obfuscation during a quarrel. For instance, if there is a quarrel between X and Y where X has a gun while Y only has a bladed weapon and X killed Y, there is no abuse of superior strength. d) Abuse of superior strength must be alleged in the Information and proven during trial beyond reasonable doubt. Burden of proof rests on prosecution to establish that accused deliberately and consciously took advantage of his superior strength to weaken the defense and/or afford or ensure impunity. COMMENTS: 1) No abuse of superior strength in parricide because presumed that husband is stronger physically than the wife. 2) Treachery oftentimes absorbs superior strength. 3) Abuse of superior strength is aggravating in coercion and forcible abduction, when greatly in excess of that required to commit the offense. 4) The gravamen of the offense is abuse of superiority by taking advantage of offenders collective strength to overcome their weaker victims. 5) This is oftentimes absorbed in treachery. One who, while fighting wit another, casts sand or dirt upon the latters eyes and then would or kills him, employs means to weaken defense of victim. 16) That crime be committed with Treachery. a) Requisites: Co 1) That offender Consciously adopted this particular means; and Me 2) That the Means would ensure commission of crime without Risk to himself Arising from Defense that offended party might make. (Recall CoMe/ Also RADe) b) An attack from behind or at the back is always treacherous but even a frontal attack constitutes treachery if it is so sudden, unexpected and unprovoked. c) In People vs. Lug-aw, there can be no treachery if there are no particulars on how aggression commenced, or circumstances showing how acts leading to death actually unfolded. d) Treachery sometimes absorbs superior strength or evident premeditation, and if there is unlawful killing, the other aggravating circumstances like dwelling, nighttime, uninhabited place, abuse of confidence, band, etc. would become mere generic aggravating circumstances which can be offset by ordinary mitigating circumstances. e) See People vs. Jose, (January 31, 2000)

COMMENTS: 1) There is no treachery when attack is preceded by a warning or if accused gave the deceased a chance to prepare. No treachery if there is a quarrel. 2) Treachery is never presumed. It must be proven as clearly and convincingly as the crime itself because it increases the penalty. 3) Applies only to crime against persons. 4) Mere suddenness of attack not enough to constitute treachery. Mode of attack must be deliberately and consciously adopted, such as when victim was asleep, or being held, or attacked from behind. 5) When aggression is CONTINUOUS, treachery must be present in beginning of the assault. If NOT CONTINUOUS, and there was an INTERRUPTION, sufficient that treachery was present at precise moment the fatal blow was given. 6) If principal by inducement did not specify details on MEANS to carry out assault, treachery cannot be taken against the inducer. 7) When there is conspiracy, treachery is considered against ALL offenders. 8) Treachery, evident premeditation and superior strength are by their nature inherent in the crime of treason. 9) Nighttime and craft are absorbed in treachery, except if treachery rests upon an independent factual basis. 10) Treachery cannot co-exist with passion and obfuscation. 11) Cite People vs. Verchez, 233 SCRA 174 (1994) where SC held there was no treachery employed by Verchez, et al who were suspected bank robbers in a hideout when they shot it out with PC agents. This is because the lawmen should have been prepared to deal with any resistance when they attacked the hideout of Verchez et al. In People vs. Jose, (Jan. 31, 2000) SC held it was murder qualified by treachery when Jose suddenly hacked Felix Zacarias at the back, at around 1:00 a.m. after victim became drunk and boisterous and challenged anyone to a fight. Treacherous because victim was unarmed, and attacked unprovoked and unexpected, under cover of darkness. Challenging anyone to a fight does not constitute sufficient provocation. 17) That Means employed or circumstances brought about which add ignominy to the natural effects of the crime. a) Requisites of ignominy: 1) Crime must be against chastity, less serious physical injuries, light or grave coercion, and murder. 2) The circumstance consciously adopted to make the crime more humiliating and shameful to the victim. b) Ignominy adopted to increase moral suffering or humiliation and disgrace of the victim. c) See People vs. Jose, 37 SCRA 450 (1971) COMMENTS: 1) IGNOMINY refers to circumstance pertaining to the MORAL order, or that which adds disgrace and obloquy to the material injury caused by the crime. 2) This is applicable to crimes against chastity, and persons. 3) Cite People vs. Torrefiel, where SC said there was ignominy when accused raped a woman after winding cogon grass around his genital organ. 4) Means employed or circumstances brought about which tend to make the crime more humiliating or put offended party to greater shame, or ridicule, like a married man being raped before the husband. 18) That crime committed after unlawful Entry. a) Unlawful entry when entrance is effected by a way not intended for the purpose. Must be to effect entrance, and not exit. b) Inherent and therefore, not aggravating in 1) Trespass to dwelling; 2) Robbery with force upon things; and 3) Robbery with violence against or intimidation of persons. c) See People vs. Baello, 224 SCRA 218 (1993) COMMENTS: 1) Breaking a door falls under par. 19, not under this paragraph because entry here must be effected through entrance not intended for such purpose. 2) Basis: greater perversity of the offender for not respecting walls erected by men to safeguard their lives and property. 3) Unlawful entry is inherent in ROBBERY with force upon things. 19) a) That a wall, Door or window be broken as means to commission of crime.. Requisites: 1) A wall, roof, window or door must be broken. 2) Such were broken to effect entrance. b) When breaking of wall, door or window is lawful: 1) Involving an officer who would break wall, etc to make a lawful arrest where accused is believed to be. 2) Involving an officer who may break open any door or window to execute search warrant or to liberate himself. 20) That crime be committed with aid of minor below 15 years of age, or by means of motor vehicle, motorized watercraft, airship or other Similar means. a) Basis: To counteract the great facility afforded modern criminals in their means of committing crimes, especially in absconding and fleeing from the crime scene.

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b) Necessary that the motor vehicle be an important tool to commit crime and must be motorized vehicle (bicycles not included). c) To punish criminal taking advantage of minors irresponsibility when committing crimes. (Minority is privileged mitigating, and if below 15 years of age, even exempting). COMMENTS: 1) Motor vehicle: aggravating where accused used the motor vehicle in going to the place of the crime, in carrying away the effects thereof, and in facilitating their escape. 2) If motor vehicle used only to facilitate escape, it is not aggravating. 21) That wrong done in the commission of the crime be deliberately Augmented by causing other wrong not necessary for its commission. a) Cruelty is when offender derives pleasure in increasing physical suffering or pain of victim. eg. stabbing a dying victim repeatedly while in the throes of death to augment the physical pain of victim. Several stab wounds on victims body, even a decapitated body, does not automatically mean cruelty absent proof that offender deliberately performed acts to increase the physical suffering of victim. But if victim already dead, no more cruelty. b) Ignominy is adding insult to injury by increasing the moral suffering or shame of the victim eg. In People vs. Jose, where the accused Jose, Pineda, et al forced actress Maggie dela Riva to strip naked for them and dance suggestively while they ogled over her naked body, SC held this act constitutes ignominy. c) Cruelty and ignominy are never presumed but must be specified and alleged in the Information and proven beyond reasonable doubt during trial, just like the elements of the crime committed. See People vs. Ilao-a, 233 SCRA 231(1994) COMMENTS: 1) There is no cruelty when other wrong was done after victim was dead. 2) Cite People vs. Ilaoa (supra) where SC held tht the fact that victims decapitated body bore 43 stab wounds, 24 of which were fatal, and was found dumped in the street is not sufficient basis for a finding of cruelty absent proof that accused Ilao-a derived pleasure and satisfaction in increasing the physical pain of victim. Number of wounds alone not sufficient criterion for appreciation of cruelty nor dismemberment of victims dead body. ALTERNATIVE CIRCUMSTANCES (Article 15) ARTICLE 15. Alternative circumstances -- Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other condictions attending its commission. They are relationship, intoxication and degree of instruction and education of the offender. The alternative circumstance of relationship shall be taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister or relative by affinity in the same degrees of the offender. The intoxication of the offender shall be taken into consideration as mitigating when the offender has committed a felony in a state of intoxication if the same is not habitual or subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional, it shall be considered as aggravating. ALTERNATIVE CIRCUMSTANCES a) Kinds of alternative circumstances: I 1) Intoxication R 2) Relationship E 3) Education (Recall IRE) b) Intoxication is mitigating: Ha 1) If not Habitual In 2) Not Intentional or subsequent to the plan to commit the felony. It is aggravating if Habitual and Intentional or subsequent to plan to commit felony. c) Relationship is aggravating in crimes against persons but mitigating in crimes against property. d) Education is aggravating if one uses his high educational attainment to commit crime with impunity, especially a lawyer, for instance but mitigating if accused has so little, or is bereft of any education that he could not fully appreciate the gravity of his actions. See People vs. Bandian, (supra) where accused mother charged with infanticide was acquitted by the SC because of lawful, insuperable cause, as well as her very low level of education that she did not know that she was already giving birth when answering the call of nature, especially because she was a primipara. Not mitigating in the following crimes: 1) Crimes against property 2) Crimes against chastity, including rape. 3) Crime of treason COMMENTS: 1) In People vs. Atop (1998), SC held rape was not qualified by aggravating circumstance of relationship when 11-year-old Regina was raped four times by her

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lolas live-in partner because law cannot be stretched to include common-law relations. In this case, no blood relationship is attendant, nor any legal bond that links Atop to his victim, Regina. 2) In People vs. Renejane, 158 SCRA 258 (1998) SC held that drunkenness is not necessarily an aggravating circumstance. Fact that accused was with the two victims and they were driniking prior to crime did not necessarily qualify it as aggravating. Intoxication is aggravating only if habitual or intentional. No finding of either by lower court, and it was an ordinary drinking party. Neither can this be considered mitigating in absence of proof that intake of alcohol blurred accuseds sense of reason and deprived him of certain degree of control. Policemen victim around one month earlier arrested Renejane for illegal possession of marijuana. 3) LACK OF EDUCATION: Not illiteracy alone, but also lack of intelligence necessary for this to apply. Lack of education cannot be take into account where defendant admitted he studied in the 1st grade in a public elementary school. Article 15 only applies to one who really has not received any instruction. a) Ordinarily, lack of education mitigating in all crimes, except: Crimes against property like Estafa, theft and robbery, arson; Crimes against chastity; Treason; and Murder. ABSOLUTORY CAUSES: ENTRAPMENT vs. INSTIGATION a) Entrapment is a scheme used by police officer to facilitate and secure apprehension of accused; mens rea, however, still emanated from accused and public officer merely facilitate commission of a crime. Hence, it is not an absolutory cause and accused is criminally liable. b) Instigation is where public officer directly induces accused into committing the offense which accused would otherwise not have had committed on his own. Hence, instigation is an absolutory cause where accused is not criminally liable akin to an exempting circumstance. (See Araneta vs. Court of Appeals, supra) b) Instigation is an exempting circumstance, just like an absolutory cause in Article 247. COMMENTS: 1) Absolutory causes are those where act committed is a crime, but for reasons of public policy and sentiment, there is no penalty imposed. 2) In ENTRAPMENT, ways and means are resorted to by the public officer for purpose of trapping and capturing accused in the act of executing his criminal plan; Mens rea came from accused hence, it is not a bar to prosecution and conviction of lawbreaker. 3) In INSTIGATION, police officer practically induces accused into commission of offense and accused merely adopts idea, and carries it into execution; Mens rea emanates from police officer hence, it is a BAR to prosecution and conviction of accused. DEGREE OF PARTICIPATION (Article 16) ARTICLE 16. Who are criminally liable: The following are criminally liable for grave and less grave felonies: 1) Principals 2) Accomplices 3) Accessories The following are criminally liable for light felonies: 1) Principals 2) Accomplices COMMENTS: 1) Accessories are not liable for light felonies because in light felonies, social wrong and individual prejudice is so small that penal sanction not deemed necessary. 2) Light felonies are punishable only when they have been consummated. But when light felonies are committed against persons or property, they are punishable even if only in the attempted or frustrated stage of execution. 3) Only principals and accomplices are liable for light felonies. And only natural persons liable for crime because of highly PERSONAL nature of criminal responsibility. 4) Officers, not corporation, are criminally liable. ARTICLE 17. Principals: The following are considered principals: 1) Those who take a direct part in the execution of the act. 2) Those who directly force or induce others to commit it. 3) Those who cooperate in the commission of the offense by another act without which it would not have been accomplished. Note: a) Principal by direct participation must actually participate in the commission of the crime which directly tended to the same end; must actually be present in the scene of the crime otherwise, his absence is deemed as desistance on his part, except is he is a principal by inducement. b) Principal by inducement: the inducement must be: Ma 1) Made directly to procure the commission of the crime: and

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De 2) Inducement is Determining or moving cause for commission of crime through the accuseds moral ascendancy or direct instructions or promise of reward or prize; Principal by inducement is usually not in scene of the crime as the mastermind and his absence is not considered desistance on his part, unlike a principal by direct participation. (See People vs. Agapito dela Cruz, 97 SCRA 385 (1980) c) Principal by indispensable cooperation: the offender here performs another act without which the crime would not have been committed or accomplished, or his participation is absolutely necessary to the consummation of the crime, unlike an accomplice whose cooperation is dispensable since even without accomplices participation, crime would still be committed. COMMENTS: 1) For an accused to held guilty as co-principal by reason of CONSPIRACY, it must be established that he performed an OVERT ACT in furtherance of conspiracy, either: a) By actively participating in the commission of crime. b) By lending moral assistance by being present at scene of crime. c) Or by exerting moral ascendancy over rest of co-conspirators to move them to execute the plan. 2) Mere KNOWLEDGE without cooperation or agreement to cooperate is not enough to constitute conspiracy. Silence also does not make one a co-conspirator. 3) The existence of conspiracy does not require agreement for an appreciable length of time prior to execution of its purpose, provided there is UNITY in planning and execution of crime. 4) Conspiracy arises on very instant that plotters agree, EXPRESSLY or IMPLIEDLY, to commit felony and forthwith decide to pursue it. 5) When there is conspiracy, not necessary to ascertain each SPECIFIC ACT of each co-conspirator. Also, no conspiracy to commit offense through negligence. 6) Cite People vs. Nunag, 173 SCRA 274 (1989) where SC held that only accused Nunag, Mandap and Manalili raped 15-year-old Lornza Lopez so, each liable for three separate crimes of rape, being principals by DIRECT PARTICIPATION. The other two were held liable only as principals by INDISPENSABLE COOPERATION since no evidence to establish they also raped since victim passed out occasionally during rape. 7) Cite People vs. Dela Cerna, 21 SCRA 569 (1967) where SC held that Dela Cerna cannot be held liable for death of Casiano, relative of victim Rafael who filed ejectment against Dela Cerna. This is because co-conspirators are liable only for acts done pursuant to conspiracy. But for other acts done outside agreement of conspirators, or which are not necessary and logical consequence of intended crime, only the actual perpetrators are liable. 8) PRINCIPAL BY INDUCEMENT: one cannot be a principal by inducement without first being shown that crime was actually committed. No principal by inducement if no principal by direct participation. 9) Cite People vs. Dela Cruz (supra) where Dela Cruz was convicted as principal by inducement for killing of Chinese businessman Yu Chi Chong, the other brother of intended victim, because without Dela Cruz who planned everything, crime would not have been conceived, much less committed. 10) Cite People vs. Montealegre (1988) where SC held that accused was convicted as co-principal for having collaborated with Capalad in killing the police officer. The two acted in concert and even if accused himself did not stab victim, accused was equally guilty for having prevented the police from resisting the attack against him. Accused Montealegre ws a principal by INDISPENSABLE COOPERATION. ARTICLE 18. Accomplices. -Accomplices are those persons who, not being included in Article 17, cooperate in the execution of the offense by previous or simultaneous acts. Note: a) An ACCOMPLICE cooperates by previous or simultaneous acts in the commission of the crime with the principal but his participation is not indispensable but only minor; performs material or moral aid but which is not indispensable to commission of crime because even without his participation, crime would have been committed nonetheless. (See People vs. Doctolero) b) Example is if X lent his car to Y and Z for the latter to commit kidnapping but Y and Z have their own cars such that crime would have been committed even without X lending his car. X is therefore liable only as an accomplice provided he knew of the illicit act to be performed by Y and Z. COMMENTS 1) Participation of an ACCOMPLICE presupposes the commission of the crime by the principal by DIRECT PARTICIPATION. 2) An accomplice does NOT have previous agreement, or understanding, and is not in conspiracy with the principal by direct participation. 3) While a co-conspirator DECIDES that a crime should be committed, an accomplice merely ASSENTS to the plan and cooperate in its accomplishment.

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4) While a co-conspirator is an AUTHOR of the crime, accomplices are merely INSTRUMENTS who perform acts not essential to the perpetration of the offense. 5) The cooperation of an accomplice is not due to conspiracy, and his participation is not indispensable to commission of crime. An accomplice merely supplies principal with MATERIAL or MORAL AID without conspiracy with the principal. The MORAL aid may be through advice, encouragement and agreement. 6) If homicide, the wounds inflicted by a co-conspirator should not be mortal, and should not have caused the death of the victim. ARTICLE 19. Accessories: Accessories are those who, having knowledge of the commission of the crime, without having participated therein either as principals or accomplices, take part subsequent to its commission in any of the following manner: Pro 1) By Profiting themselves, or assisting the offender, to profit by the effects of the crime. Co 2) By Concealing or destroying body of the crime, effects or instruments thereof in order to prevent its discovery; and Ha 3) By Harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions, or whenever the author of the crime is guilty of treason, parricide, murder or attempt on the life of the Chief Execution, or is habitually guilty of some other crime. (Recall ProCoHa) COMMENTS: 1) An accessory always takes part AFTER the commission of the offense. 2) PROFITING the accessory must receive the property from the principal. 3) CONCEALING the corpus delicti or body of the crime. 4) HARBORING, CONCEALING, OR ASSISTING IN ESCAPE OF PRINCIPAL a) PUBLIC officer who assists in escape by taking advantage of his public functions. b) PRIVATE person who harbors, conceals or assists in escape and offender is guilty of Treason, Parricide, Murder, or Attempt on the life of the President, or is known to be Habitually guilty of some other crime. 5) Relate to P.D. 1612 (Anti-Fencing Law of 1979) ARTICLE 20. Accessories exempt from criminal liability. -- Penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of Article 19. Note: a) Takes part SUBSEQUENT to commission of crime, or after the fact in any of the three (3) modes, or manner. b) Generally, a relative who conceals, harbors or assists in escape of an accused relative is exempt from criminal liability except if that relative profited from the effects or instruments of crime because he is not prompted by profit motive, not by blood relations. c) Article 19 limits the instances wherein an accessory is liable for by harboring, concealing or assisting in escape of principal to crimes where principal accused is guilty of Treason, Parricide, Murder, or Attempt on the life of Chief Executive or where principal accused is Habitually guilty of some other crime. (Recall TPMAHa) So if crime committed by accused is robbery or kidnapping, there is no accessory. d) X assisted Y, a cellphone snatcher, by selling the stolen cellphone and dividing the proceeds between them. X can be held liable not only as accessory for theft or robbery (which is crime mala in se), but also as a principal in the crime of Fencing for buying, selling or possessing goods which he knew, or should have known, to be proceeds of robbery, or theft. But X must be charged first in a separate Information for violation of the Anti-Fencing Law, a crime mala prohibita. There is no double jeopardy here even if X is being charged for two crimes arising from the same criminal act because the elements of the two crimes are different, separate and distinct from each other. Although both offenses refer to the same criminal act of the accused, they are punishable under two different laws (one under RPC and the other under a special law) hence, X can be prosecuted and convicted for two crimes for a single criminal act without infringing on his right to double jeopardy or to due process of law. COMMENTS: 1) Nephew or niece is not included here. 2) An accessory is not EXEMPT from criminal liability even if principal is related to him, if such accessory PROFITS from the effects of the crime, or assisted the offender to profit from the effects of the crime. 3) Reason here is that offender is prompted not by defense of relative but more by greed, and personal gain. 4) Exemption here is based on ties of blood, and preservation of the cleanliness of ones name, which compels one to conceals crimes committed by relatives. PENALTIES a) Penalty is a punishment inflicted on an offender in the form of deprivation of life, liberty or property after due process of law, for accuseds act of violating the law. It is essentially legislative.

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b) The criminal act brings about a social injury (offense against the state or breach of the Kings peace) and personal injury (offense or damage to the private offended party). This social injury can be pardoned by the Chief Executive but such pardon does not extinguish civil liability on the part of the private offended party. The personal injury, on the other hand, can only be pardoned by the private offended party but such pardon does not wipe out the criminal liability. c) Further, pardon by the Chief Executive could only come after conviction while a pardon by the private offended party must be done prior to conviction, and if possible, preferably before the institution of the criminal case. RECLUSION PERPETUA vs. LIFE IMPRISONMENT a) While reclusion perpetua is penalty for violation under RPC, life imprisonment is a penalty for violation of a special law. b) While reclusion perpetua has a fixed duration of 20 years and one day to 40 years, life imprisonment has no fixed duration and could be literally for life. c) While reclusion perpetua has accessory penalties, life imprisonment carries no accessory penalties. DURATION/DEGREE vs. PERIODS OF PENALTIES a) Memorize duration of principal penalties under Article 27, RPC. Also master the minimum, medium and maximum periods of the principal penalties, particularly reclusion temporal and prision correccional. b) A degree could refer to one entire penalty (eg. death or reclusion perpetua) or one whole unit of penalties under the graduated scale of penalty in Article 71 while a period is composed of three equal portions of a divisible penalty. c) Principal penalties vs. accessory penalties: Principal penalties include death, reclusion perpetua, reclusion temporal, prision mayor, prision correccional, arresto mayor, arresto menor while accessory penalties include: a) Perpetual or temporary absolute/special disqualification; b) Suspension from public office, the right to vote and be voted for; c) Civil interdiction; d) Indemnificaton for damages; e) Forfeiture or confiscation of instruments and procceds of the offense; and f) Payment of costs. COMPLEX CRIMES a. See Article 48 (RPC) KINDS OF COMPLEX CRIMES 1) When a single act constitutes two or more grave or less grave felonies, otherwise called COMPOUND CRIMES eg. X shoots Y, killing Y and injuring Z riding on a bike with Y. Crime is Complex crime of Homicide/Murder with serious physical injuries. 2) Or when an offense is a necessary means for committing another, otherwise called COMPLEX CRIME PROPER. eg. DECS treasurer falsified amount in check from P1,000 to P10,000 and pocketed the difference. Crime is complex crime of Malversation through Falsification. (NOTE: Also remember composite crimes or special complex crime/ continued crimes or single larceny doctrine and continuing crime.) (3) If it is a complex crime, remember always the penalty: find the most serious crime, then apply the maximum period of the most serious crime. Example: If complex crime of Robbery with homicide and assuming penalty for homicide is reclusion temporal while penalty for robbery is prision mayor. Find the most serious crime which obviously is homicide because of its higher penalty, and after this apply the penalty of homicide which is reclusion temporal in its maximum period. Hence, penalty for complex crime of robbery with homicide is reclusion temporal maximum. a) Just disregard the penalty for robbery because since it is the less serious crime and irrelevant for purposes of finding the penalty for such complex crime. COMPUTATION OF PENALTIES a) Remember the Table of Penalties discussed in class. b) Recall Article 46 where if penalty is silent, penalty is presumed to be imposed upon principals in a consummated felony. Also recall Articles 50 to 57 on penalties for principals/accomplices/accessories in a consummated, frustrated and attempted felony, etc. with Article 46 on principal of a consummated felony as baseline, or frame of reference. c) Also master the application of Article 63 (Rules for the application of indivisible penalties) and Article 64 (Rules for application of divisible penalties). In indivisible penalties, if neither aggravating nor mitigating is present, apply the lesser penalty. If mitigating only, apply lesser penalty. If aggravating only, apply higher penalty. d) In divisible penalties under Article 64, if neither mitigating nor aggravating, medium period. If one mitigating and no aggravating, minimum period. If one aggravating and no mitigating, apply maximum period. If both mitigating and aggravating present, offset each other. e) If two mitigating and no aggravating, one degree lower If three mitigating and no aggravating, one degree lower and since one mitigating left and no aggravating, apply minimum period. Remember, however, if there are three or more mitigating circumstances but one aggravating, apply the minimum period of the appropriate penalty but you cannot lower it by one degree anymore because of the presence of one aggravating circumstance.

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THREE-FOLD RULE a) See Article 70 (RPC) on the Three-Fold Rule

27
APPLYING THE THREE FOLD RULE 1) If convict has to serve two or more penalties, he must serve them SIMULTANEOUSLY if nature of penalties permit. 2) Otherwise, he shall serve them SUCCESSIVELY in order of their respective severity, for purposes of being granted pardon. 3) Notwithstanding such rule, maximum duration of convicts sentence shall not be more than three-fold corresponding to the most severe of penalties imposed upon him. 4) Such maximum period shall in no case exceed 40 years. 5) For purposes of this rule, the duration of perpetual penalties shall be computed at thirty (30) years. PROBLEM: If John Villanuueva, the accused was convicted of four crimes with the following penalties as mentioned hereunder, and applying the three-fold rule under Article 70 of RPC, what is the appropriate penalty to be imposed on the accused. Homicide -- 18 yrs, 3 mos, 1 day x 3 = 54 yrs., 9 mos, and 3 days Frustrated robbery -- 10 yrs, 2 mos, 1 day Less serious physical inj. -2 mos. Slight physical injuries -10 days ________________________________________________________________ TOTAL 28 yrs., 7 mos., and 12 days ------------ 40 years ANSWER: Applying Article 70 under three-fold rule, the appropriate penalty to be imposed on the accused Mr. Villanueva is 28 years, 7 mos, and 12 days because it is the lowest penalty. It cannot be 54 years, 9 mos, and 3 days which is obtained by multiplying by 3 the penalty for the most serious crime because it is more than 40 years which is the maximum. Neither can it be 40 years because if you add up all the penalties applying the Material accumulation system, the total is only 28 yrs, 7 mos, and 12 days which is less than 40 years, the maximum provided by law under the three-fold rule. INDETERMINATE SENTENCE LAW (ACT 4103) APPLICATION First, the court shall sentence accused to an INDETERMINATE sentence by first determining MAXIMUM taking into account the following: a) Degree of participation of accused; b) Stage of execution of crime; and c) Attendant circumstances. Second, after finding maximum, look for the MINIMUM which is found within any of the range of the next lower penalty. DISQUALIFIED from availing of Indeterminate Sentence Law are the following: 1) Those convicted of death penalty or life imprisonment; 2) Those with imprisonment not exceeding one year; 3) Those convicted of treason, conspiracy or proposal to commit treason; 4) Misprision of treason, rebellion, sedition and espionage; 5) Convicted of piracy; 6) Habitual delinquent; 7) Those who escaped from confinement or evaded sentence. Advantage of Indeterminate Sentence Law (ISL) is after serving the minimum, one can apply for parole and can leave prison and live a normal life, but subject, of course, to supervision of parole officer. PROBLEM: Assuming that the penalty for homicide is reclusion temporal, and the accused X was 17 years old when he committed the offense, and there is one mitigating and no aggravating circumstance attending the commission of the crime, answer the following:

(a) (b)
(c) (d)

What is the exact range of the maximum of the Indeterminate Sentence of X, and why? What is the exact range of the minimum of the Indeteminate Sentence of X, and why? If you are a very strict judge, what is the most serious, or highest penalty you can impose on X? If you are a very lenient judge, what is the least serious, or lowest penalty you can impose on X?

ANSWER: (a) If I were the judge, I will first look for the maximum, taking into account the attendant circumstances in the commissin of the crime. Considering that homicide is punishable with reclusion temporal, and since X was a minor when he committed the offense, the penalty should be one degree lower, or prision mayor. And since there is one mitigating circumstance present and no aggravating, the maximum should be within the range of prision mayor in its minimum period, or exactly within the range of 6 years, one day to 8 years. (b) After finding the maximum, Ill look for the minimum by simply going one degree lower from prision mayor, which is prision correccional. Therefore, the minimum of the penalty to be imposed on X is within any of the range of prision correccional, which is six months and one day to six years. (c) If I were a very strict judge, the highest penalty, or most serious penalty, I can impose on X is 6 years up to 8 years. This means that after serving 6 years, accused can be released on parole subject to terms and conditions of the Board of Pardon and Parole, and under supervision of a parole officer.

(d) If I were a very lenient judge, the lowest penalty, or least serious penalty, I can impose on X is 6 months and one day to six years and one day. PROBATION a) If penalty is not more than six years, one can apply for probation, in which case sentence is suspended. b) Probation and appeal are mutually exclusive. If one applies for probation, one accepts correctness of lower courts decision hence, waiver of right to appeal. Once convict appeals, he challenges lower courts decision and if appeal denied later, he can no longer apply for probation. c) The following are disqualified from applying for probation: 1) If imprisonment exceeds six years; 2) If previously convicted of offense with penalty of not less than one month and one day or arresto mayor; 3) If availed of probation before; 4) If convicted of subversion, etc or crimes against national security and public order; and 5) If already serving sentence when this law became applicable. d) After service of probation, accused is still civilly liable because probation only extinguishes the criminal liability, just like in parole, commutation of service of sentence, pardon, etc.

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CHILD AND YOUTH WELFARE CODE (P.D. 603) a) Under P.D. 603, if you are a minor which means less than 21 years of age, upon commission, trial and conviction of offense, you are entitled to a suspended sentence and serve time in a welfare institution like DSWD or govt agency, not in prison. b) But to enjoy suspended sentence, the accused must be a minor at time of commission, trial, conviction and application for suspended sentence under P.D. 603. c) Those DISQUALIFIED from availing of suspended sentence are the following: 1) Those convicted of an offense punishable by death or life imprisonment; 2) Those who have previously availed of suspended sentence; and 3) Those convicted for an offense by the military tribunals. d) If the youthful offender has shown good behavior, he will be released, and his records shall remain confidential. If he is found to be incorrigible, he will be sent back to court for pronouncement of judgment, in which case he will be read his sentence of conviction and serve sentence, although the period of preventive imprisonment will be deducted from his actual sentence. EFFECTS OF PARDON by PRESIDENT a) In Monsanto vs. Factoran, SC laid down the following pronouncement on the effects of pardon: 1) Pardon does not automatically restore right to hold public office or be reinstated to previous public position, unless it is expressly stated in the pardon. 2) Pardon merely restores the eligility of the accused public officer, and removes her disqualification from seeking said pubic office but it does not ipso facto restore her position and she must reapply to the same position, especially because public office is a public trust. 3) Pardon is not acquittal, but on the contrary, pardon implies guilt. Pardon, after all, means forgiveness, and not forgetfulness. 4) Pardon only extinguishes criminal liability which was pardoned by the act of the President but such pardon does not wipe out civil liability which persists and can still be recovered despite the pardon, just like in probation, commutation. 5) Upon being pardoned, it means that the pending appeal from the conviction of the Sandiganbayan, or lower court, is automatically witndrawn. As such, the conviction of the Sandiganbayan, or lower court, becomes final. 6) Neither is accused entitled to reinstatement and backwages which was a form of penalty for her conviction which already became final upon her being pardoned. Only that she was extended clemency or forgiveness by the Chief Executive hence, she did not have to serve time in prison. CIVIL INDEMNITY FOR CRIMES a) Remember Article 100 stating that every person criminally liable is also civilly liable. 1) If acquittal based on reasonable doubt (because prosecution could not prove the guilt of the accused beyond reasonable doubt) does not bar complainant from filing separate and independent civil action for civil liability arising from crime. This is because the amount of evidence required for civil indemnity or damages arising from crime is merely preponderance of evidence and not guilt beyond reasonable doubt. 2) If acquittal based on finding that accused did not commit the crime at all this bars complainant from filing a separate civil action for damages. b) And Article 1157 enumerates the sources of obligations being:

1st, law; 2nd, contracts; 3rd, quasi-contracts; 4th, delicts or acts and omissions punished by law; and 5th, quasi-delicts. c) Also recall Article 102 on subsidiary civil liability of innkeeopers, tavernkeepers and proprietors of establishments and Article 103 on subsidiary civil liability of other persons, particularly employers, teachers, persons and corporations for acts or omissions of their servants, pupils, workmen, apprentices or employees in the discharge of

their duties, which caused damage or injury to another. indemnity arising from crime, or delict, or ex delicto.

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These

are

obligations,

or

civil

These are, however, subject to the following conditions or requsites: 1) That the employer is engaged in some kind of business or industry. 2) That there exists an employer-employee relationship between the offender and his employer. 3) That the felony was committed by the employee while in the performance of his duties. 4) That the employee from whom civil liability was sought was insolvent. (Article 103. RPC) d) Aside from civil indemnity arising from crime, or delict, there is also civil indemnity arising from quasi-delict. This is found under Article 2176 and Article 2180 on subsidiary civil liability of father, mother or guardian, owners and managers of establishment, employers, teachers or heads of establishments of arts and trade on the acts or omission of their minor chilldren, employees, pupils, students or apprentices. PROBLEM: D, the driver of a passenger jeepney, while drunk and overspeeding, bumped a P, the pedestrian and because of the sudden brakes, A, B and C passengers suffered slight physical injuries. a) What are the causes of action of the pedestrian P, passengers A, B and C against D for recovery of civil liability for the negligence of D. b) If D is insolvent, whom can they ran after, and under what causes of action. ANSWER: a) P, the pedestrian, can sue D to recover civil liability on the basis of Article 100 of RPC known as culpa criminal, or ex delicto. The three passengers A, B and C, on the other hand, can sue D on the basis of culpa contractual, there being an existing contractual relation between D and the passengers for D to safely carry them to their destination. b) If D is insolvent, P the pedestrian can sue the employer/operator on the basis of Article 103 on the subsidiary civil liability of the employer/operator in the form of subsidiary civil liability of the owner/employer arising from delict. Or as an option, P may also sue the employer/operator on the basis of Article 2176 and Article 2180 in the form of subsidiary civil liability of the owner/employer arising from quasi- delict. This is, howevr, subject to the condition imposed by Article 2177 which states that civil liability arising from quasi-delict under Article 2176 is separate and distinct from civil liability arising from crime under Article 103. But plaintiff cannot recover damages twice from the same act or omission of the defendant. Tva:Powerpoint1C_Crim1