Module 5

CRIMINAL LAW BOOK 1

Book Reference: Revised Penal Code Book 1, JB Reyes
The circumstances affecting criminal liability are:
I. Justifying circumstances (Art. 11)
II. Exempting circumstances (Art. 12), and other absolutory causes
(Arts. 20; 124, last par. 280, last par 332; 344; etc.)
III. Mitigating circumstances (Art. 13)
IV. Aggravating circumstances (Art. 14)
V. Alternative circumstances (Art. 15)

III. Mitigating Circumstances

1. Definition
Mitigating circumstances are those which, if present in the commission of the crime, do not
entirely free the actor from
criminal liability, but serve only to reduce the penalty.
2. Basis
Mitigating circumstances are based on the diminution of
either freedom of action, intelligence, or intent, or on the lesser
perversity of the offender.

Classes of mitigating circumstances.

1. Ordinary mitigating — those enumerated in subsections 1 to 10 of Article 13.
Those mentioned in subsection 1 of Art. 13 are ordinary mitigating circumstances, if Art.
69, for instance, is not applicable.
2. Privileged mitigating —
a. Art. 68. Penalty to be imposed upon a person under eighteen years of age. - When
the offender is a minor under eighteen years of age and his case falls under the provisions of
the Juvenile Justice and Welfare Act, the following rules shall be observed:
(1) A person under fifteen years of age, and a person over fifteen and under eighteen years of
age who acted without discernment, are exempt from criminal liability;
(2) Upon a person over fifteen and u n d er eighteen years of age who acted with discernment,
the penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. (As amended by Rep. Act No. 9344)
b. Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. —
A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed
is not wholly excusable by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability provided that the majority of such conditions be
present.
c. Art. 64. Rules for the application of penalties which contain three periods. — In c a s e
s in w h ich the penalties prescribed by law contain three periods, whether it be a single divisible
penalty or composed of three different penalties, e ach one of which forms a period x x x, the
courts shall observe for the application of the penalty the following rules, according to whether
there are or are not mitigating or aggravating circumstances:
(5) When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that prescribed by

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law, in the period that it may deem applicable, according to the number and nature of such
circumstances. X x x.

Privileged mitigating circumstances applicable only to particular crimes.

1. Voluntary release of the person illegally detained within 3 days without the offender attaining
his purpose and before the institution of criminal action. (Art. 268, par. 3) The
penalty is one degree lower.
2. Abandonment without justification of the spouse who committed adultery. (Art. 333, par. 3)
The penalty is one degree lower.

Distinctions.
1. Ordinary mitigating is susceptible of being offset by any aggravating circumstance; while
privileged mitigating cannot be offset by aggravating circumstance.
2. Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect of
applying the penalty provided by law for the crime in its minimum period, in case of divisible
penalty; whereas, privileged mitigating produces the effect of imposing upon the offender the
penalty lower by one or two degrees than that provided by law for the crime.

Mitigating circumstances only reduce the penalty, but do not change the nature of the
crime.
Where the accused is charged with murder, as when treachery as a qualifying
circumstance is alleged in the information, the fact that there is a generic or privileged mitigating
circumstance does not change the felony to homicide.
If there is an ordinary or generic mitigating circumstance, not offset by any aggravating
circumstance, the accused should be found guilty of the same crime of murder, but the penalty
to be imposed is reduced to the minimum of the penalty for murder.
If there is a privileged mitigating circumstance, the penalty for murder will be reduced by
one or two degrees lower.
In every case, the accused should be held guilty of murder. The judgment of the trial court that
the mitigating circumstance of non-habitual drunkenness changes the felony to homicide is
erroneous, because treachery is alleged in the information and the crime committed by the
appellant is that of murder. The mitigating circumstance reduces the penalty provided by law but
does not change the nature of the crime.

Art. 13. Mitigating circumstances. — The following are mitigating circumstances:

Those mentioned in the preceding chapter,

1. Those mentioned in the preceding chapter, when all the requisites necessary to justify
the actor exempt from criminal liability in the respective cases are not attendant.
2 . That the offender is under eighteen years of age or over seventy years. In the case of
the minor, he shall be proceeded against accordance with the provisions of the Article
80.
3. That the offender had no intention to commit so grave a wrong as that committed.
4 . That sufficient provocation nor threat to the part of the offended party immediately
preceded the act.
5 . That the act was committed in the immediate vindication of a grave offense to the one
committing the felony his spouse, ascendants, descendants, legitimate, natural or
adopted brothers or sisters, or relative by affinity within the same degrees.
6 . That of having acted upon an impulse so powerful as naturally to have produced
passion or obfuscation.

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7 . That the offender had voluntarily surrender himself to a person in authority or his
agents, or that he had voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.
(Impliedly repealed by Rep. Act. No. 9344. A child above 15 but below 18 who
acted without discernment may be exempt from criminal liability.)
8 . That the offender is deaf, dumb, blind or otherwise suffering some physical defect
which thus restricts his means of action, defense, or communication with his fellow
beings.
9 . Such illness of the offender as would diminish the exercise of the will-power of the
offender without however depriving him of consciousness of his acts.
10. And, finally, any other circumstances of as similar nature and analogous to those
above-mentioned.

Par. 1. — Those mentioned in the preceding chapter when all the requisites necessary to
justify the act or to exempt from criminal liability in the respective cases are not
attendant.

"Those mentioned in the preceding chapter."

This clause has reference to (1) justifying and (2) exempting circumstances which are
covered by Chapter Two of Title One.

Circumstances of justification or exemption which may give place to mitigation.

The circumstances of justification or exemption which may give place to mitigation,
because not all the requisites necessary to justify the act or to exempt from criminal liability in
the respective cases are attendant, are the following:
(1) Self-defense (Art. 11 par. 1);
(2) Defense of relatives (Art. 11, par. 2);
(3) Defense of stranger (Art. 11, par. 3);
(4) State of necessity (Art. 11 par. 4);
(5) Performance of duty (Art. par. 5);
(6) Obedience to order of superior (Art. 11 par. 6);
(7) Minority over 9 and under 15 years of age (Art. 12, par. 3);
(8) Causing injury by mere accident (Art. 12, par. 4); and
(9) Uncontrollable fear. (Art. 12, par. 6)
Paragraphs 1 and 2 of Article 12 cannot give place to mitigation, because, as stated by
the Supreme Court of Spain, the mental condition of a person is indivisible; that is, there is no
middle ground between sanity and insanity, between presence and absence of intelligence.
(Decs of Sup. Ct. of Spain of December 19, 1891 and of October 3, 1884)
But if the offender is suffering from some illness which would diminish the exercise of his
will-power, without however depriving him of consciousness of his acts, such circumstance is
considered a mitigation under paragraph 9 of Article 13. It would seem that one who is suffering
from mental disease without however depriving one of consciousness of one's act may be given
the benefit of that mitigating circumstance.

When all the requisites necessary to justify the act are not attendant.
1. Incomplete self-defense, defense of relatives, and defense of stranger.
Note that in t h e s e three classes of defense, unlawful aggression must be present, it being an
indispensable requisite. What is absent is either one or both of the last two requisites.

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Paragraph 1 of Art. 13 is applicable only when unlawful aggression is present but the
other two requisites are not present in any of the cases referred to in circumstances Nos.
1,2, and 3 of Art.11
Art. 13, par. 1 applies only when unlawful aggression is present, but the other two
requisites are not present. (Guevara) When two of the three requisites mentioned therein are
present (for example, unlawful aggression and any one of the other two), the case must not be
considered as one in which an ordinary or generic mitigating circumstance is present. Instead, it
should be considered a privileged mitigating circumstance referred to in Art. 69 of this Code.
Thus, if in self-defense there was unlawful aggression on the part of the deceased, the means
employed to prevent or repel it was reasonable, but the one making a defense gave sufficient
provocation, he is entitled to a privileged mitigating circumstance, because the majority of the
conditions required to justify the act is present. (Art. 69) Also, if in the defense of a relative there
was unlawful aggression on the part of the deceased, but the one defending the relative used
unreasonable means to prevent or repel it, he is entitled to a privileged mitigating circumstance.
When there is unlawful aggression on the part of the deceased without sufficient provocation by
the defendant, but the latter uses means not reasonably necessary, for after having snatched
the rope from the deceased, he should not have wound it around her neck and tightened it.
Held: There is incomplete self-defense on the part of the defendant, which may be considered a
privileged mitigating circumstance. (People vs. Martin, 89 Phil. 18, 24) But if there is no unlawful
aggression, there could be no selfdefense or defense of a relative, whether complete or
incomplete.

Example of incomplete defense.

The deceased was about to set on fire the house of the accused, where she was
sleeping together with her two children. They grappled and the accused boloed to death the
deceased.
There w a s unlawful aggression consisting in trying to set on fire the house of the accused.
There was the element of danger to the occupants of the house. But having already driven the
aggressor out of the house, who was prostrate on the ground, the accused should not have
persisted in wounding her no less than fourteen times. There is, therefore, absence of one
circumstance to justify the act-reasonable necessity of killing the aggressor. The accused was
entitled to a privileged mitigating circumstance of incomplete defense. Here, the accused acted
in defense of her person, her home, and her children. (U.S. vs. Rivera, 41 Phil. 472, 473-474)

Example of incomplete self-defense.

The accused is entitled to only incomplete self-defense. The deceased was in a state of
drunkenness, so he was not as dangerous as he would if he had been sober. His aim proved
faulty and easily evaded as shown by the fact that the person defending w a s not hit by the stab
attempts-blows directed against him. The necessity of the m e a n s used to repel the
aggression is not clearly reasonable. (People vs. De Jesus, No. L-58506, Nov. 19, 1982, SCRA
616, 627)

Example of incomplete defense of relative.

The deceased hit the first cousin of the accused with the butt of a shotgun. The
deceased also pointed the shotgun at the first cousin, took a bullet from his jacket pocket,
showed it to
him and asked him "Do you like this Dong?” to which the latter replied, "No, Noy, I do not like
that." The deceased then placed the bullet in the shotgun and w a s thus pointing it at the first
cousin when the accused came from behind the deceased and stabbed him. There was
unlawful aggression on the part of the deceased and there was no provocation on the part of the
accused.

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However, because of a running feud between the deceased and his brother on one side and the
accused and his brother on the other side, the accused could not have been impelled by pure
compassion or beneficence or the lawful desire to avenge the immediate wrong inflicted on his
cousin. He was motivated by revenge, resentment or evil motive. He is only entitled to the
privileged mitigating circumstance of incomplete defense of relative. (People vs. Toring, G.R.
No. 56358, Oct. 26, 1990, 191 SCRA 38, 45-48)

2. Incomplete justifying circumstance of avoidance of greater evil or injury.

Avoidance of greater evil or injury is a justifying circumstance if all the three requisites
mentioned in paragraph 4 of Article 11 are present. But if any of the last two requisites is
absent, there is only a mitigating circumstance.

3. Incomplete justifying circumstance of performance of duty.

As has been discussed under Article 11 there are two requisites that must be present in
order that the circumstance in Article 11, No. 5, may be taken as a justifying one, namely:
a. That the accused acted in the performance of a duty or in the lawful exercise of a right or
office; and
b. That the injury caused or offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office.

4. Incomplete justifying circumstance of obedience to an order.

Roleda fired at Pilones, following the order of Sergeant Benting, Roleda's superior. It
appears that on their way to the camp, Roleda learned that Pilones had killed not only a barrio
lieutenant but also a member of the military police, and this may have aroused in Roleda a
feeling of resentment that may have impelled him to readily and without questioning follow the
order of Sgt. Benting. To this may be added the fact of his being a subordinate of Sgt. Benting
who gave the order, and while out on patrol when the soldiers were supposed to be under the
immediate command and control of the patrol leader, Sgt. Benting.

When all the requisites necessary to exempt from criminal liability are not attendant.
1.Incomplete exempting circumstance of minority over 9 and under 15 years of age.
To be exempt from criminal liability under paragraph 3 of Article 12, two conditions must be
present:
a. That the offender is over 9 and under 15 years old; and
b. That he does not act with discernment.
Therefore, if the minor over 9 and under 15 years of age acted with discernment, he is
entitled only to a mitigating circumstance, because not all the requisites necessary to exempt
from criminal liability are present.
The case of such minor is specifically covered by Art. 68.
2. Incomplete exempting circumstance of accident.
Under paragraph 4 of Article 12, there are four requisites that must be present in order to
exempt one from criminal liability, namely:
a. A person is performing a lawful act;
b. With due care;
c. He causes an injury to another by mere accident; and
d. Without fault or intention of causing it.
If the second requisite and the 1st part of the fourth requisite are absent, the case will fall
under Art. 365 which punishes a felony by negligence or imprudence. In effect, there is a
mitigating circumstance, because the penalty is lower than that provided for intentional felony.
If the first requisite and the 2nd part of the fourth requisite are absent, because the person
committed an unlawful act and had the intention of causing the injury, it will be an intentional

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felony. The 2nd and 3rd requisites will not be present either. In this case, there is not even a
mitigating circumstance.
3. Incomplete exempting circumstance of uncontrollable fear.
Un d e r paragraph 6 of Article 12, uncontrollable fear is an exempting circumstance if
the following requisites are present:
a. That the threat which caused the fear was of an evil greater than, or at least equal to, that
which he was required to commit;
b. That it promised an evil of such gravity and imminence that an ordinary person would have
succumbed to it (uncontrollable).
If only one of these requisites is present, there is only a mitigating circumstance.

Illustration:
People vs. Magpantay
(C.A., 46 O.G. 1655)
Facts: In the night of May 8, 1947, Felix and Pedro took turns to guard, so that when one was
asleep the other was awake. At about nine o'clock when Pedro was asleep, the silhouette of a
man passed in front of their house without any light. The night was dark and it was drizzling.
The coconut trees and the bushes on the sides of the road increased the darkness. When Felix
saw the silhouette, he asked it who it was, but it walked hurriedly, which made Felix suspicious
as it might be a scouting guard of the Dilim gang. Felix fired into the air, yet the figure continued
its way. When Pedro heard the shot, he suddenly grabbed the rifle at his side and fired at the
figure on the road, causing the death of the man. This man was afterward found to be Pedro
Pinion, who was returning home unarmed after fishing in a river. The accused voluntarily
surrendered to the barrio-lieutenant and then to the chief of police.
Held: The accused acted under the influence of the fear of being attacked. Having already in his
mind the idea that they might be raided at any moment by the Dilim gang and suddenly
awakened by the shot fired by Felix, he grabbed his gun and fired before he could be fired upon.
The fear, however, was not entirely uncontrollable, for had he not been so hasty and had he
stopped a few seconds to think, he would have ascertained that there was no imminent danger.
He is entitled to the mitigating circumstance of grave fear, not entirely uncontrollable, under
paragraph 1 of Article 13 in connection with paragraph 6 of Article 12 of the Revised Penal
Code. That said two provisions may be taken together to constitute a mitigating circumstance
has been declared by the Supreme Court of Spain in its decision of February 24, 1897 and by
Groizard. (Codigo Penal, Vol. I, pp. 370-372, Third Edition)
Consequently, there are two marked mitigating circumstances in favor of the accused. Article
64, in paragraph 5, of the Revised Penal Code provides that: "When there are two or more
mitigating circumstances and no aggravating circumstances are present, the court shall impose
the penalty next lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances." The penalty for homicide is
reclusion temporal. The next lower penalty is prision mayor, which may be imposed in the
period that the court may deem applicable according to the number and nature of such
circumstance. In view of the foregoing, this Court finds the accused Pedro Magpantay guilty of
homicide, with two very marked mitigating circumstances, and modifies the judgment appealed
from by imposing upon him the penalty of from six (6) months and (1) one day prision
to six (6) years and (1) one day of prision mayor. With due respect, it is believed that Art. 69, in
connection with paragraph 6 of Article 12 not Article 13 paragraph 1 in relation to paragraph 6 of
Article 12, should be applied. When it considered grave fear, not entirely uncontrollable, as
ordinary mitigating circumstance under Article 13, paragraph 1, together with voluntary
surrender, and applied Article 64, the Court of Appeals should have fixed the maximum term of
the indeterminate penalty (prision mayor) in its medium period. The two mitigating circumstance
s having been considered already for the purpose of lowering the penalty for homicide by one

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degree, pursuant to paragraph 5 of Article 64, there is no mitigating circumstance that will justify
the imposition of prision mayor in its minimum period.
Had Article 69 in connection with paragraph 6 of Article 12 been applied, the penalty imposed
would have a correct basis. Under Article 69, the penalty one or two degrees lower than that
provided for the offense may be imposed. The mitigating circumstance of voluntary surrender
need not be considered in lowering the penalty by one degree. Therefore, the voluntary
surrender of the accused, which is a generic mitigating circumstance, may be considered for the
purpose of fixing prision mayor in its minimum period. (Art. 64, par. 2)

Par. 2. — That the offender is under eighteen years of age or over seventy years. In the
case of the minor, he shall be proceeded against in accordance with the provisions of
Article 80 (now Art. 192, P.D. No. 603).

Paragraph 2, Article 13 RPC impliedly repealed by Republic Act No. 9344.

Paragraph 2, Article 13 of the Revised Penal Code providing that offender under
eighteen years of age is entitled to a mitigating circumstance of minority is deemed repealed by
the provision of Republic Act 9344 declaring a child above fifteen (15) years but below (18)
eighteen years or age shall be exempt from criminal liability unless he/she has acted with
discernment. (Sec. 6, Rep. Act No. 9344) In other words, whereas before, an offender fifteen
(15) or over but under (18) eighteen years of age is entitled only to the benefits provided under
Article 68 of the Revised Penal Code, under Republic Act No. 9344 or the "Juvenile Justice and
Welfare Act of 2006," such offender may be exempt from criminal liability should he/she acted
without discernment. On the other hand, if such offender acted with discernment, such child in
conflict with the law shall undergo diversion programs provided under Chapter 2 of Republic Act
No. 9344.

Meaning of Diversion and Diversion Program under Republic Act No. 9344
"Diversion" refers to an alternative, child-appropriate process of determining the
responsibility and treatment of a child in conflict with the law on the basis of his/her social,
cultural, economic, psychological or educational background without resulting to formal
court proceedings. (Section 4 (j) Rep. Act No. 9344)
"Diversion Program" refers to the program that the child in conflict with the law is
required to undergo after he/she is found responsible for an offense without resorting to formal
court proceedings. (Section 4 (j) Rep. Act No. 9344)
System of Diversion.
Children in conflict with the law shall undergo diversion programs without undergoing
court proceedings subject to the following
conditions:
(a) Where the imposable penalty for the crime committed is not more than six (6) years
imprisonment, the law enforcement office or Punong Barangay with the assistance of the local
social welfare and development officer or other members of the Local Councils for the
Protection of Children (LCPC) established in all levels of local government pursuant to Rep. Act
No. 9344, shall conduct mediation, family conferencing and conciliation and, where appropriate,
adopt indigenous modes of conflict resolution in accordance with the best interest of the child
with a view to accomplishing the objectives of restorative justice and the formulation of a
diversion program. The child and his/her family shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not more than six (6) years of
imprisonment, the local social welfare and development officer shall meet with the child and
his/her parents or guardians for the development of the appropriate diversion and rehabilitation
program, in coordination with the Barangay Council for the Protection of Children (BCPC)
created pursuant to Rep. Act No. 9344.

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(c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment,
diversion measures may be resorted to only by the court. (See Section 23, Republic Act No.
9344)

Conferencing, Mediation and Conciliation.

A child in conflict with the law may undergo conferencing, mediation or conciliation
outside the criminal justice system or prior to his entry into said system. A contract of diversion
may be entered into during such conferencing, mediation or conciliation proceedings.
(Sec. 25, Rep. Act No. 9344)

Contract of Diversion.
If during the conferencing, mediation or conciliation, the child voluntarily admits the
commission of the act, a diversion program shall be developed when appropriate and desirable
as determined under Section 30. Such admission shall not be used against the child in any
subsequent judicial, quasi-judicial or administrative proceedings.
The diversion program shall be effective and binding if accepted by the parties concerned. The
acceptance shall be in writing and signed by the parties concerned and the appropriate
authorities. The local social welfare and development officer shall supervise the implementation
of the diversion program. The diversion proceedings shall be completed within forty-five (45)
days. The period of prescription of the offense shall be suspended until the completion of the
diversion proceedings but not to exceed forty-five (45) days.
The child shall present himself/herself to the competent authorities that imposed the diversion
program at least once a month for reporting and evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract of diversion, as certified by the
local social welfare and development officer, shall give the offended party the option to institute
the appropriate legal action.
The period of prescription of the offense shall be suspended during the effectivity of the
diversion program, but not exceeding a period of two (2) years. (Sec. 26, Rep. Act No. 9344)

Where diversion may be conducted.

Diversion may be conducted at the Katarungang Pambarangay, the police investigation
or the inquest or preliminary investigation stage and at all levels and phases of the proceedings
including judicial level. (Section 24, Republic Act No. 9344)

Duty of the Punong Barangay or the Law Enforcement Officer when there is no diversion.
If t h e offense does not fall u n d er the category where the imposable penalty for the
crime committed is not more than six (6) years of imprisonment or in cases of victimless crimes
where the imposable penalty is also not more than six years imprisonment, or if the child,
his/her parents or guardians does not consent to a diversion, the Punong Barangay handling the
case shall, within three (3) days from determination of the absence of jurisdiction over the case
or termination of the diversion proceeding as the case may be, forward the records of the case
to the law enforcement officer, prosecutor or the appropriate court, as the case may be. (See
Section 27, Republic Act No. 9344)
In case a Law Enforcement Officer is the one handling the case, within same period, the Law
Enforcement Officer shall forward the records of the case to the prosecutor or judge concerned
for the conduct of inquest and/or preliminary investigation. The document transmitting said
records shall display the word "CHILD" in bold letters. (Sec. 28, Rep. Act No. 9344)

Determination of age of child in conflict with the law.

The child in conflict with the law shall enjoy the presumption of minority. He/She shall
enjoy all the rights of a child in conflict with the law until he/she is proven to be (18) eighteen

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years old or older. The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence of these documents, age
may be based on information from the child himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child
in conflict with the law prior to the filing of the information in any appropriate court may file a
case in a summary proceeding for the determination of age before the Family Court which shall
decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all
interested parties.
If a case has been filed against the child in conflict with the law and is pending in the
appropriate court, the person shall file a motion to determine the age of the child in the same
court where the case is pending. Pending hearing on the said motion, proceedings on the main
case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges and other government officials
concerned shall exert all efforts at determining the age of the child in conflict with the law.
(Section 7, Republic Act No. 9344)

That the offender is over 70 years of age is only a generic mitigating circumstance.
While paragraph 2 of Article 13 covers offenders under 18 years of age and those over
70 years, Article 68, providing for privileged mitigating circumstances, does not include the case
of offenders over 70 years old.
Prior to the enactment of Rep. Act No. 9346 prohibiting the imposition of the death penalty,
there were two cases where the fact that the offender is over 70 years of age had the effect of a
privileged mitigating circumstance, namely: (1) when he committed an offense punishable by
death, that penalty shall not be imposed (Art. 47, par. 1) and (2) when the death sentence is
already imposed, it shall be suspended and commuted. (Art. 83) In any of the above-mentioned
two cases, the penalty of death will have to be lowered to life imprisonment. (reclusion
perpetua)

Basis of paragraph 2.
The mitigating circumstances in paragraph 2 of Art. 13 are based on the diminution of
intelligence, a condition of voluntariness.

Par. 3. — That the offender had no intention to commit so grave a wrong as that
committed.

Rule for the application of this paragraph.

This circumstance can be taken into account only when the facts proven show that there
is a notable and evident disproportion between the means employed to execute the criminal act
and its consequences. (U.S. vs. Reyes, 36 Phil. 904, 907)

Illustrations:
1. The husband who was quarreling with his wife punched her in the abdomen, causing the
rupture of her hypertrophied spleen, from which she died. (People vs. Rabao, 67 Phil.
255, 257, 259)
2. The accused confined himself to giving a single blow with a bolo on the right arm of the victim
and did not repeat the blow. The death of the victim was due to neglect and the lack
of medical treatment, his death having resulted from hemorrhage which those who attended to
him did not know how to stop or control in time. (U.S. vs. Bertucio 1 Phil. 47, 49)

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3. The accused, a policeman, boxed the deceased, a detention prisoner, inside the jail. As a
consequence of the fistic blows, the deceased collapsed on the floor. The accused stepped
on the prostrate body and left. After a while, he returned with a bottle, poured its contents on the
recumbent body of the deceased, ignited it with a match and left the cell again. As a
consequence, the victim later on died. Held: The accused is entitled to the mitigating
circumstance of "no intention to commit so grave a wrong as that committed." (People vs. Ural,
No. March 27, 1974, 56 SCRA 138, 140-141, 146)

Intention, being an internal state, must be judged by external acts.

The intention, as an internal act, is judged not only by the proportion of the means
employed by him to the evil produced by his act, but also by the fact that the blow was or was
not aimed at a vital part of the body. Thus, it may be deduced from the proven facts that the
accused had no intent to kill the victim, his design being only to maltreat him, such that when he
realized the fearful consequences of his felonious act, he allowed the victim to secure medical
treatment at the municipal dispensary. (People vs. Ural, No. March 27, 1974, 56 SCRA 138,
146)
Thus, where the accused fired a loaded revolver at the deceased and killed him, it must be
presumed, taking into consideration the means employed as being sufficient to produce the evil
which resulted, that he intended the natural consequence of his act and he is, therefore, not
entitled to the benefit of the mitigating circumstance of lack of intention to commit a wrong as
that committed. (U.S. vs. Fitzgerald, 2 Phil. 419, 422)
Thus, where at the time of the commission of the crime, the accused was 32 years of age, while
his victim was 25 years his senior, and when the latter resisted his attempt to rape her by biting
and scratching him, to subdue her, the accused boxed her and then held her on the neck and
pressed it down, while she was lying on her back and he was on top of her, these acts were
reasonably sufficient to produce the result that they actually produce the death of the victim.
(People vs. Amit No. L-29066, March 32 SCRA 95, 98)
So also, when the assailant, armed with a bolo, inflicted upon his victim a serious and fatal
wound in the abdomen, it is not to be believed that he had no intention of killing his victim,
having clearly shown, by the location of the wound, that he had a definite and perverse intention
of producing the injury which resulted. (U.S. vs. Mendac, 31 Phil. 240, 244-245)
Defendant alleged as mitigating circumstance that he did not intend to commit so grave an
injury. Held: The plea is groundless; he used a knife six inches long. The fatal injury was the
natural and almost inevitable consequence. Moreover, he attempted to stab a second time but
was prevented from doing so. (People vs. Orongan, et 58 Phil. 426, 429)

The weapon used, the part of the body injured, the injury inflicted, and the manner it is
inflicted may show that the accused intended the wrong committed.
1. Intention must be judged by considering the weapon used, the injury inflicted, and his attitude
of the mind when the accused attacked the deceased. Thus, when the accused used a heavy
club in attacking the deceased whom he followed some distance, without giving him an
opportunity to defend himself, it is to be believed that he intended to do exactly what he did and
must be held responsible for the result, without the benefit of this mitigating circumstance.
(People vs. Flores, 50 Phil. 548, 551)
2. When a person stabs another with a lethal weapon such as a fan knife (and the same could
be said of the butt of a rifle), upon a part of the body, for example, the head, chest, or stomach,
death could reasonably be anticipated and the accused must be presumed to have intended the
natural consequence of his wrongful act. (People vs. Reyes, 61 Phil. 341, 343; People vs. Datu
Baguinda, 44 O.G. 2287)
3. The weapon used, the force of the blow, the spot where the blow was directed and landed,
and the cold blood in which it w a s inflicted, all tend to negative any notion that the plan was

10
anything less than to finish the intended victim. The accused in this case struck the victim with a
hammer on the right forehead. (People vs. Banlos, G.R. No. Dec. 29, 1950)
4. As to the alleged lack of intent to commit so grave a wrong as that committed, the same
cannot be appreciated. The clear intention of the accused to kill the deceased may be inferred
from the fact that he used a deadly weapon and fired at the deceased almost point blank,
thereby hitting him in the abdomen and causing death. (People vs. Reyes, No. Feb. 27, 1976,
69 SCRA 474, 482)
5. Where the evidence shows that, if not all the persons who attacked the deceased, at least
some of them, intended to cause his death by throwing at him stones of such size and weight as
to cause, as in fact they caused, a fracture of his skull, and as the act of one or some of them is
deemed to be the act of the others there being sufficient proof of conspiracy, the mitigating
circumstance of lack of intent to commit so grave a wrong as the one actually committed cannot
favorably be considered. (People vs. Bautista, Nos. L-23303-04, May 20, 1969, 28 SCRA
People v. Espejo)

Inflicting of five stab wounds in rapid succession negates pretense of lack of intention to cause
so serious an injury.
The inflicting by the accused of five (5) stab wounds caused in rapid succession brings forth in
bold relief the intention of the accused to snuff out the life of the deceased, and definitely
negates any pretense of lack of intention to cause so serious an injury. (People vs. Braña) No.
Oct. 31, 1969, 30 SCRA 307, 316)

Art. 13 par. 3, is not applicable when the offender employed brute force.
To prove this circumstance, the accused testified that "my only intention was to abuse
her, but when she tried to shout, I covered her mouth and choked her and later I found out that
because of that she died." The Supreme Court said: "It is easy enough for the accused to say
that he had no intention to do great harm. But he knew the girl was very tender in age (6 years
old), weak in body, helpless and defenseless. He knew or ought to have known the natural and
inevitable result of the act of strangulation, committed by men of superior strength, specially on
an occasion when she was resisting the onslaught upon her honor. The brute force employed
by the appellant, completely contradicts the claim that he had no intention to
kill the victim." (People vs. Yu, No. Jan. 28, 1961, 1 SCRA

It is the intention of the offender at the moment when he is committing the crime which is
considered.
The point is raised that the trial court should have considered the mitigating
circumstance of lack of intent to commit so grave a wrong as that was committed. The argument
is that the accused planned only to rob; they never meant to kill. Held: Art. 13, par. 3, of the
Revised Penal Code addresses itself to the intention of the offender at the particular moment
when he executes or commits the criminal act; not to his intention during the planning stage.
Therefore, when, as in the case under review, the original plan was only to rob, but which plan,
on account of the resistance offered by the victim, was compounded into the more serious crime
of robbery with homicide, the plea of lack of intention to commit so grave a wrong cannot be
rightly granted. The irrefutable fact remains that when they ganged up on their victim, they
employed deadly weapons and inflicted on him mortal wounds in his neck. At that precise
moment, they did intend to kill their victim, and that was the moment to which Art. 13, par. 3,
refers. (People vs. Boyles, No. May SCRA 88, 95-96; People vs. No. L-26789, April 25, 1969,
27 SCRA 1037, 1045-1046)
Art. 13, par. 3 of the Revised Penal Code "addresses itself to the intention of the offender at the
particular moment when he executes or commits the criminal act; not to his intention during the
planning stage." Therefore, if the original plan, as alleged by the accused, was merely to ask for

11
forgiveness from the victim's wife who scolded them and threatened to report them to the
authorities, which led to her killing, the plea of lack of intention to commit so grave a wrong
cannot be appreciated as a mitigating circumstance. The records show that the accused held
the victim's wife until she fell to the floor, whereupon they strangled her by means of a piece of
rope tied around her neck till she died. The brute force employed by the accused completely
contradicts the claim that they had no intention to kill the victim. (People vs. Garachio No. L-
30849, March SCRA 131, 152)

Lack of intention to commit so grave a wrong mitigating in robbery with homicide.

The mitigating circumstance of lack of intent to commit so grave a wrong may be
appreciated favorably in robbery with homicide, where it has not been satisfactorily established
that in forcing entrance through the door which was then closed, with the use of pieces of wood,
the accused were aware that the deceased was behind the door and would be hurt, and there is
no clear showing that they ever desired to kill the deceased as they sought to enter the house to
retaliate against the male occupants or commit robbery. (People vs. Abueg, No. Nov. 24, 1986,
145 SCRA 622, 634)

Appreciated in murder qualified by circumstances based on manner of commission, not

on state of mind of accused.
Several accused decided to have a foreman beaten up. The deed was accomplished.
But the victim died as a result of hemorrhage. It was not the intention of the accused to kill the
victim. Held: Murder results from the presence of qualifying circumstances (in this case
with premeditation and treachery) based upon the manner in which the crime was committed
and not upon the state of mind of the accused. The mitigating circumstance that the offender
had no intention to commit so grave a wrong as that committed is based on the state of mind of
the offender. Hence, there is no incompatibility between evident premeditation or treachery,
which refers to the manner of committing the crime, and this mitigating circumstance. (People
vs. Enriquez, 58 Phil. 536, 544-545)

Not appreciated in murder qualified by treachery.

Lack of intention to commit so grave a wrong is not appreciated where the offense
committed is characterized by treachery. The five accused claim that the weapons used are
mere pieces of wood, and the fact that only seven blows were dealt the deceased by the five of
them, only two of which turned out to be fatal, shows that the tragic and grievous result was far
from their minds. The record shows however, that the offense committed was characterized by
treachery and the accused left the scene of the crime only after the victim had fallen down.
Hence, the mitigating circumstance of lack of intention cannot be appreciated in their favor.
(People vs. Pajenado, No. L-26458, Jan. 30, 1976, 69 SCRA 172, 180)

Lack of intent to kill not mitigating in physical injuries.

In crimes against persons who do not die as a result of the assault, the absence of the
intent to kill reduces the felony to mere physical injuries, but it does not constitute a mitigating
circumstance under Art. 13, par. 3. (People vs. Galacgac, C.A., 54)

Mitigating when the victim dies.

As part of their fun-making, the accused merely intended to set the deceased's clothes
on fire. Burning the clothes of the victim would cause at the very least some kind of physical
injuries on this person. The accused is guilty of the resulting death of the victim but he is
entitled to the mitigating circumstance of no intention to commit so grave a wrong as that
committed. (People vs. Pugay, No. L-74324, Nov. 17, 1988, 167 SCRA 439, 449)

12
Not applicable to felonies by negligence.
In the case of infidelity in the custody of prisoners through negligence (Art. 224), this
circumstance was not considered. (People vs. Medina, C.A., 40 O.G. 4196)
The reason is that in felonies through negligence, the offender acts without intent. The intent in
intentional felonies is replaced by negligence, imprudence, lack of foresight or lack of skill in
culpable felonies. Hence, in felonies through negligence, there is no intent on the part of the
offender which m a y be considered as diminished.

Is Art.13 par. 3, applicable to felonies where the intention of the offender is immaterial?
In unintentional abortion, where the abortion that resulted is not intended by the
offender, the mitigating circumstance that the offender had no intention to commit so grave a
wrong as that committed is not applicable. (People vs. Cristobal, C.A., G.R. No. 8739, Oct.)
But in another case, where the accused pulled the hair of the complainant who w a s three
months pregnant causing her to fall on her buttocks on the cement floor, with the result that after
experiencing vaginal hemorrhage the foetus fell from her womb, it w a s held that the accused
having intended at the most to maltreat the complainant only, the mitigating circumstance in Art.
13, par. 3, should be considered in his favor. (People vs. Flameño C.A., 58
O.G. 4060)
Unintentional abortion is committed by any person who by violence, shall cause the killing of the
foetus in the uterus or the violent expulsion of the foetus from the maternal womb, causing its
death, but unintentionally. (Art. 257)

Applicable only to offenses resulting in physical injuries or material harm.

Thus, the mitigating circumstance that the offender did not intend to commit so grave a wrong
as that committed was not appreciated in cases of defamation or slander. (People vs. Galang
de Bautista, C.A., 40 O.G. 4473)

Basis of paragraph 3.
In this circumstance, intent, an element of voluntariness in intentional felony, is
diminished.

Par. 4. — That sufficient provocation or threat on the part the of the offended party
immediately
preceded the act.

What is provocation?
By provocation is understood any unjust or improper conduct or act of the offended
party, capable of exciting, inciting, or irritating any
Requisites:
1. That the provocation must be sufficient.
2. That it must originate from the offended party
3. That the provocation must be immediate to the act, i.e., to the commission of the crime by the
person who is provoked.

The provocation must be sufficient

Provocation in order to be mitigating must be sufficient and immediately preceding the
act. (People vs. Pagal No. L-32040, Oct. 79 SCRA 570, 575-576) The word "sufficient" means
adequate to excite a person to commit the wrong and must accordingly be proportionate to its
gravity. (People vs. Nabora, 73 Phil. 434, 435)

13
As to whether or not a provocation is sufficient depends upon the act constituting the
provocation, the social standing of the person provoked, the place and the time w h e n the
provocation is made.

Examples of sufficient provocation.

1. The accused was a foreman in charge of the preservation of order and for which purpose he
provided himself with a pick handle. The deceased, one of the laborers in the line to receive
their wages, left his place and forced his way into the file. The accused ordered him out, but he
persisted, and the accused gave him a blow with the stick on the right side of the head above
the ear. Held: When the aggression is in retaliation for an insult, injury, or threat, the offender
cannot successfully claim self-defense, but at most he can be give n the benefit of the mitigating
circumstance under the provisions of paragraph 4 of Article 13. (U.S. Carrero vs. 9 Phil. 544,
545-546)
2. When the deceased abused and ill-treated the accused by kicking and cursing the latter, the
accused who killed him committed the crime with this mitigating circumstance. (U.S. Firmo vs.
37 Phil. 133, 135)
3. When in his house the accused saw an unknown person jump out of the window and his wife
begged for his pardon on her knees, he killed her. Such conduct on the part of his wife
constitutes a sufficient provocation to the accused. (People vs. Marquez, 53 Phil. 260, 262-263)
4. Although there was no unlawful aggression, because the challenge w a s accepted by the
accused, and therefore there was no self-defense, there w a s however the mitigating
circumstance of immediate provocation. In this case, the deceased insulted the accused and
then challenged the latter. (U.S. vs. Cortes, 36 Phil. 837)

When the defendant sought the deceased, the challenge to fight by the latter is not
provocation.
Thus, if the defendant appeared in front of the house of the deceased, after they had
been separated by other persons who prevented a fight between them, even if the deceased
challenged him to a fight upon seeing him near his house, the defendant cannot be given the
benefit of the mitigating circumstance of provocation, because when the defendant sought the
deceased, the former was ready and willing to fight. (U.S. vs. Mendac, 31 Phil. 240)

5. There was sufficient provocation on the part of the victim where the latter hit the accused with
his fist on the eye of the accused before the fight. (People vs. Manansala, Jr.,
31 SCRA 401)
6. The deceased, while intoxicated, found the accused lying down without having prepared the
evening meal. This angered the deceased and he abused the accused by kicking and cursing
him. A struggle followed and the accused stabbed him with a pen knife. The accused was
entitled to the mitigating circumstance that sufficient provocation or threat immediately preceded
the act. (U.S. Firmo vs. 37 Phil. 133)
7. The victim's act of kicking the accused on the chest prior to the stabbing does not constitute
unlawful aggression for purposes of self-defense, but the act may be considered as sufficient
provocation on the victim's part, a mitigating circumstance that may be considered in favor of
the accused. (People vs. Macariola No. L-40757, Jan. 24, 1983, 120 SCRA 92, 102)
8. Thrusting his bolo at petitioner, threatening to kill him, and hacking the bamboo walls of his
house are, in our view, sufficient provocation to enrage any man, or stir his rage and obfuscate
his thinking, more so when the lives of his wife and children are in danger. Petitioner stabbed
the victim as a result of those provocations, and while petitioner was still in a fit of rage. In our
view, there was sufficient provocation and the circumstance of passion or obfuscation attended
the commission of the offense. Romera vs. People, G.R. No. 151978, July 14, 2004)

14
Provocation held not sufficient.
(a) When the injured party asked the accused for an explanation for the latter's derogatory
remarks against certain ladies, the accused cannot properly claim that he was provoked to kill.
(People vs. Laude, 58 Phil. 933)
(b) While the accused was taking a walk at the New Luneta one evening, the deceased met him
and pointing his finger at the accused asked the latter what he was doing there and the n said:
“Don’t you know we are watching for honeymooners here?" The accused drew out his knife and
stabbed the deceased who died as a consequence. Held: The provocation made by the
deceased was not sufficient. (People vs. Nabora, 73 Phil. 434)
(c) The fact that the deceased (a public officer) had ordered the arrest of the accused for
misdemeanor is not such a provocation within the meaning of this paragraph that will be
considered in mitigation of the penalty for the crime of homicide committed by the accused who
killed the officer giving such order. (U.S. vs. Abijan, 1 Phil. 83) The performance of a duty is not
a source of provocation.
(d) Assuming for the sake of argument that the blowing of horns, cutting of lanes or overtaking
can be considered as acts of provocation, the same were not sufficient. The word sufficient
means adequate to excite a person to commit a wrong and must accordingly be proportionate to
its gravity. Moreover, the deceased's act of asking for the accused to claim that he was
provoked to kill or injure the deceased. (People vs. Court of Appeals, et. G.R. No. 103613, Feb.
23, 2001)

Provocation must originate from the offended party.

Where the alleged provocation did not come from the deceased but from the latter's
mother, the same may not be appreciated in favor of the accused. (People vs. Reyes, No. Feb.
27, 1976, 69 SCRA 474, 481)
A and B were together. A hit C on the head with a piece of stone from his sling-shot and
ran away. As he could not overtake A, C faced B and assaulted the latter. In this case, C is not
entitled to this mitigating circumstance, because B never gave the provocation
or took part in it. The reason for the requirement is that the law says that the provocation is "on
the part of the offended party." If during the fight between the accused and another person who
provoked the affair, the deceased merely approached to separate them and did not give the
accused any reason for attacking him, and in attacking the other person the accused killed the
deceased, the provocation given by the other person cannot be taken as a mitigating
circumstance. (U.S. vs. Malabanan, 9 Phil. 262, 264)

Difference between sufficient provocation as requisite of incomplete self-defense and as

a mitigating circumstance.
Sufficient provocation as a requisite of incomplete self-defense is different from sufficient
provocation as a mitigating circumstance. As an element of self-defense, it pertains to its
absence on the part of the person defending himself; while as a mitigating circumstance,
it pertains to its presence on the part of the offended party. (People vs. Court of Appeals, et.
G.R. No. 103613, Feb. 23, 2001)

The provocation by the deceased in the first stage of the fight is not a mitigating
circumstance when the accused killed him after he had fled.
The provocation given by the deceased at the commencement of the fight is not a
mitigating circumstance, where the deceased ran away and the accused killed him while fleeing,
because the deceased from the moment he fled did not give any provocation for the accused
to pursue and to attack him. (People vs. Alconga, 78 Phil. 366, 370)

Provocation must be immediate to the commission of the crime.

15
 Between the provocation b y t h e offended party an d t h e commission of the crime by
the person provoked, there should not be any interval of time. The reason for this requirement is
that the law states that the provocation "immediately preceded the act”. When there is an
interval of time between the provocation and the commission of the crime, the conduct of the
offended party could not have excited the accused to the commission of the crime, he having
had time to regain his reason and to exercise self-control. Provocation given by an adversary at
the commencement and during the first stage of a fight cannot be considered as mitigating
where the accused pursued and killed the former while fleeing, and the deceased, from the
moment he had fled after the first stage of the fight to the moment he died, did not give any
provocation for the accused to pursue, much less further attack him. (People vs. Tan, No. L-
22697, Oct. 5, 1976, 73 SCRA 288, 294) The provocation did not immediately precede the
shooting. The accused had almost a day to mull over the alleged provocation before he reacted
by shooting the victim. The inevitable conclusion is that he did not feel sufficiently provoked at
the time the alleged provocation was made, and when he shot the victim the next day, it was a
deliberate act of vengeance and not the natural reaction of a human being to immediately
retaliate when provoked. (People vs. Benito, No. L-32042, Feb. 13, 1975, 62 SCRA 351, 357)
But see the case of People vs. Deguia et G.R. No. April where one of the accused, after
the provocation by the deceased consisting in accusing him of having stolen two jack fruits from
his tree and summarily taking them from the sled of the accused, went home and later returned
fully armed and killed the deceased. Yet, it was held that the provocation should be considered
in favor of the accused.
There seems to be a misapplication of the rule in this case. This ruling would be correct if the
accusation that the accused stole the jack fruits be considered as a grave offense instead of
provocation, because an interval of time between the grave offense and the commission of the
crime is allowed in such a case.

Threat immediately preceded the act.

Thus, if A was threatened by B with bodily harm and because of the threat, A
immediately attacked and injured B, there was a mitigating circumstance of threat immediately
preceding the act.
The threat should not be offensive and positively strong, because, if it is, the threat to inflict real
injury is an unlawful aggression which may give rise to self-defense. (U.S. vs. Guysayco, 13
Phil. 292, 295-296)

Vague threats not sufficient.

The victim's mere utterance, "If you do not agree, beware," without further proof that he
was bent upon translating his vague threats into immediate action, is not sufficient.
But where the victims shouted at the accused, "Follow us if you dare and we will kill you," there
is sufficient threat.

Basis of paragraph 4.
The mitigating circumstance in paragraph 4 of Art. 13 is based on the diminution of
intelligence and intent.

Par. 5. — That the act was committed in the immediate Vindication of a grave offense to
the one committing the felony (delito), his spouse, ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or relatives by affinity within the same degrees.
Requisites:
1. That there be a grave offense done to the one committing the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the
same degrees;

16
2.That the felony is committed in vindication of such grave offense. A lapse of time is allowed
between the vindication and the doing of the grave offense.

Illustrations:
1. Being accused by the victim that the accused stole the former's rooster which made
the latter feel deeply embarrassed, and the encounter took place in about half an hour's
time. (People vs. Pongol, C.A., 66 O.G. 5617, citing People vs. Libria 95 Phil. 398)
2. Stabbing to death the son of the accused which most naturally and logically must
have enraged and obfuscated him that, seized by that feeling of hatred and rancour, he stabbed
indiscriminately the people around. (People vs. Doniego, No. Nov. 29, 1963, 9 SCRA 541, 546,
547)

A lapse of time is allowed between the grave offense and the vindication.
The word "immediate" used in the English text is not the correct translation. The Spanish
text uses “proxima”. The fact that the accused was slapped by the deceased in the presence of
many persons a few hours before the former killed the latter, was considered a mitigating
circumstance that the act was committed in the immediate vindication of a grave offense.
Although the grave offense (slapping of the accused by the deceased), which engendered
perturbation of mind, was not so immediate, it was held that the influence thereof, by reason of
its gravity and the circumstances under which it was inflicted, lasted until the moment the crime
was committed. (People vs. Parana, 64 Phil. 331, 337)
In the case of People vs. Palaan, G.R. No. 34976, Aug. unpublished, the killing of the
paramour by the offended husband one day after the adultery w a s considered still proximate.
In the case of People vs. Diokno, 63 Phil. the lapse of time between the grave offense
(abducting the daughter of the accused by the deceased) and the vindication (killing of the
deceased) was two or three days.
In this case, the Supreme Court said —
"The presence of the fifth mitigating circumstance of Article 13 of the Revised Penal
Code, that is, immediate vindication of a grave offense may be take n into consideration in favor
of the two accused, because although the elopement took place on January 4, 1935, and the
aggression on the 7th of said month and year, the offense did not cease while (the abducted
daughter's) whereabouts remained unknown and her marriage to the deceased unlegalized.
Therefore, there was no interruption from the time the offense was committed to the vindication
thereof. (The) accused belongs to a family of old customs to whom the elopement of a daughter
with a m an constitutes a grave offense to their honor and causes disturbance of the peace and
tranquility of the home and at the same time spreads uneasiness and anxiety in the minds of the
members thereof." (p. 608)

Interval of time negating vindication.

1. Approximately nine (9) months before the killing, the deceased boxed the accused several
times in the face resulting in the conviction of the deceased for less serious physical injuries. He
appealed, pending which the accused killed him. It cannot be said that the second incident was
an immediate or a proximate vindication of the first. (People vs. Lumayag, No. March 31, 1965,
13 SCRA 502, 507-508)
2. The deceased uttered the following remark at eleven o'clock in the morning in the presence
of the accused and his officemates: “Nagiistambay pala dito ang magnanakaw” or “Hindi ko
alam na itong Civil Srvice ay tambayan palan ng magnanakaw” At five o'clock in the afternoon
of the same day, the accused killed the deceased. The mitigating circumstance of vindication of
a grave offense does not avail. (People vs. Benito, No. L-32042, Dec. 17, 1976, 74 SCRA 271,
279, 282-283)

17
3. Where the accused heard the deceased say that the accused's daughter is a flirt, and the
accused stabbed the victim two months later, the mitigating circumstance of immediate
vindication of a grave offense cannot be considered in favor of accused because he had
sufficient time to recover his serenity. The supposed vindication did not immediately or
proximately follow the alleged insulting and provocative remarks. (People vs. Lopez, G.R. No.
136861, November 15, 2000)

Distinguish provocation from vindication.

1. In the case of provocation, it is made directly only to the person committing the felony; in
vindication, the grave offense may be committed also against the offender's relatives mentioned
by the law.
2. In vindication, the offended party must have done a grave offense to the offender or his
relatives mentioned by the law; in provocation, the cause that brought about the provocation
need not be a grave offense.
3. In provocation, it is necessary that the provocation or threat immediately preceded the act,
i.e., that there be no interval of time between the provocation and the commission of the crime;
while in vindication, the vindication of the grave offense may be proximate, which admits of an
interval of time between the grave offense done by the offended party and the commission of
the crime by the accused.

Reason for the difference.

This greater leniency in the case of vindication is due undoubtedly to the fact that it
concerns the honor of a person, an offense which is more worthy of consideration than mere
spite against the one giving the provocation or threat.

Killing a relative is a grave offense.

It was most natural and logical for the appellant to have been enraged and obfuscated at
the sight of his dead son and seized by that feeling of hatred and rancour, to have stabbed
indiscriminately
the people around x x x.
On the other hand, the attenuating circumstance of immediate vindication of a grave
offense-the stabbing of his son to death, or of having committed the crime upon an impulse so
powerful as naturally to have produced passion or obfuscation, may be deemed to have
attended the commission of the crime alternatively, because both mitigating circumstances
cannot co-exist. (People vs. Doniego 9 SCRA 541)

Basis to determine the gravity of offense in vindication.

The question whether or not a certain personal offense is grave must be decided by the
court, having in mind the social standing of the person, the place, and the time when the insult
was made. (See People vs. Ruiz, 93 SCRA 739, where the rule was applied.) During a fiesta,
an old m a n 70 years of age asked the deceased for some roast pig. In the presence of many
guests, the deceased insulted the old man, saying: "There is no more. Come here and I will
make roast pig of you." A little later, while the deceased was squatting down, the old m a n
came up behind him and struck him on the head with an ax. Held: While it may be mere trifle to
an average person, it evidently was a serious matter to an old man, to be made the butt of a
joke in the presence of so many guests. The accused was given the benefit of the mitigating
circumstance of vindication of a grave offense. (U.S. vs. Ampar 37 Phil. 201) In that case, the
age of the accused and the place were considered in determining the gravity of the offense.

Considered grave offense:

1. Sarcastic remark implying that the accused was a petty tyrant.

18
The offended party, a volunteer worker to repair an abandoned road, arrived in the afternoon
when the work should have started in the morning. Inquired by the accused, the man in charge
of the work, why he came late, the offended party retorted sarcastically: "Perhaps during the
Spanish regime when one comes late, he is punished." Infuriated at the reply, the accused fired
his gun but did not hit the offended party. (People vs. Batiquin, 40 O.G. 987)
2. Remark of the injured party before the guests that accused lived at the expense of his
wife. (People vs. 66 Phil. 323) The place was taken into consideration in that case.
3. Taking into account that the American forces had just occupied Manila, it is not
strange that the accused should have considered it t h e n as a grave offense w h e n the
offended party said: “You are a Japanese spy." (People vs. Luna, 76 Phil. 101, 105) The time
was taken into consideration in that case.
4. If a person kills another for having found him in the act of committing an attempt
against his (accused's) wife, he is entitled to the benefits of this circumstance of having acted in
vindication of a grave offense against his and his wife's honor. (U.S. vs. Alcasid, 1 Phil. 86; See
also U.S. vs. Davis, Phil. 96, 99)
Where the injured party had insulted the father of the accused by contemptuously telling
him: "Phse, ichura mong lalake" (Pshaw, you are but a shrimp), the accused who attacked the
injured party acted in vindication of a grave offense to his father. (People vs. David, 60 Phil. 93,

The provocation should be proportionate to the damage caused by the act and adequate
to stir one to its commission.
Aside from the fact that the provocation should immediately precede the commission of
the offense, it should also be proportionate to the damage caused by the act and adequate to
stir one to its commission. The remark attributed to the deceased that the daughter of
the accused is a flirt does not warrant and justify the act of accused in slaying the victim.
(People vs. Lopez, G.R. No. 136861, November 15, 2000)

Basis of paragraph 5.
The mitigating circumstance in paragraph 5 of Art. 13 is based on the diminution
of the conditions of voluntariness.

Grave offense must be directed to the accused.

The supposed grave offense done by the victim was an alleged remark made in the
presence of the accused that the Civil Service Commission is a hangout of thieves. The
accused felt alluded to because he was facing the n criminal and administrative charges on
several counts involving his honesty and integrity. The remark itself was general in nature and
not specifically directed to the accused. If he felt alluded to by a remark which he personally
considered insulting to him, that was his own individual reaction thereto. Other people in the
vicinity who might have heard the remark could not have possibly know n that the victim w a s
insulting the accused unless they were aware of the background of the criminal and
administrative charges involving moral turpitude pending against the accused. The remark
cannot be considered a grave offense against the accused. (People vs. Benito, No. L-32042,
Feb. 62 SCRA 351, 355-356)

Vindication of a grave offense incompatible with passion or obfuscation.

Vindication of a grave offense and passion or obfuscation cannot be counted separately
and independently. (People vs. Dagatan, 106 Phil. 88, 98)

Par. 6. — That of having acted upon an impulse so powerful as naturally to have

produced passion or obfuscation.
This paragraph requires that —

19
1. The accused acted upon an impulse.
2. The impulse must be so powerful that it naturally produced passion or obfuscation in him.

Why passion or obfuscation is mitigating.

When there are causes naturally producing in a person powerful excitement, he loses
his reason and self-control, thereby diminishing the exercise of his will power. (U.S. vs.
Salandanan, 1 Phil. 464, 465)

Rule for the application of this paragraph.

Passion or obfuscation may constitute a mitigating circumstance only when the same
arose from lawful sentiments.
For this reason, even if there is actually passion or obfuscation on the part of the
offender, there is no mitigating circumstance,
when:
(1) The act is committed in a spirit of lawlessness; or
(2) The act is committed in a spirit of revenge.

Requisites of the mitigating circumstance of passion or obfuscation:

1. That there be an act, both unlawful and sufficient to produce such a condition of mind; and
2. That said act which produced the obfuscation was not far removed from the commission of
the crime by a considerable length of time, during which the perpetrator might recover
his normal equanimity. (People vs. Alanguilang, 52 Phil. 663, 665, citing earlier cases; People
vs. 108 Phil. 730, 743; People vs. Nos. May 16, SCRA 123, 134)

The act of the offended party must be unlawful or unjust.

The crime committed by the accused mus t be provoked by prior unjust or improper acts
of the injured party. (U.S. vs. Taylor, 6 Phil. 162, 163)
Thus, a common-law wife, who, having left the common home, refused to go home with
the accused, was acting within her rights, and the accused (the common-law husband) had no
legitimate right to compel her to go with him. The act of the deceased in refusing to go home
with the accused, while provocative, nevertheless was insufficient to produce the passion and
obfuscation that the law contemplates. (People vs. Quijano, C.A., 50 O.G. 5819)
But where the accused killed his wife on the occasion when she visited her aunt's husband, this
mitigating circumstance was held to be applicable, having in mind the jealousy of the accused
and her refusal to return to his house until after the arrival of her uncle. The mitigating
circumstance of having acted under an impulse so powerful as to have produced passion and
obfuscation should be considered in favor of the owner who, upon seeing the person who
stole his carabao, shoots the supposed thief. (People vs. Ancheta et al, C.A., 39 O.G. 1288)
The act of the deceased in creating trouble during the wake of the departed father of defendant-
appellant scandalizes the mourners and offends the sensibilities of the grieving family.
Considering that the trouble created by the deceased was both unlawful and sufficient
to infuriate accused-appellant, his guilt is mitigated by passion or obfuscation. (People vs.
Samonte, Jr., No. June 11, 1975, 64 SCRA 319, 329-330)
The accused is entitled to the mitigating circumstance of passion or obfuscation where he hit the
deceased upon seeing the latter box his 4-year-old son. The actuation of the accused arose
from a natural instinct that impels a father to rush to the rescue of a beleaguered son,
regardless of whether the latter be right or wrong. (People vs. Castro, No. L-38989, Oct. 29,
1982, 117 SCRA 1014, 1020)

Exercise of a right or fulfillment of duty is not proper source of passion or obfuscation.

20
 The accused killed the deceased when the latter was about to take the carabao of the
accused to the barrio lieutenant. Held: The action of the deceased in taking the carabao of the
accused to him and demanding payment for the sugar cane destroyed by that carabao and in
taking the carabao to the barrio lieutenant when the accused refused to pay, was perfectly legal
and proper and constituted no reasonable cause for provocation to the accused. The finding
that the accused acted upon an impulse so powerful as naturally to have produced passion or
obfuscation was not justified, because the deceased was clearly within his rights in what he did.
(People vs. Noynay et 58 Phil. 393)
Since the mother of the child, killed by the accused, had the perfect right to reprimand the said
accused for indecently converting the family's bedroom into a rendezvous of herself and her
lover, the said accused cannot properly invoke the mitigating circumstance of passion or
obfuscation to minimize her liability for the murder of the child. (People vs. Caliso, 58 Phil. 283)
Where the accused was making a disturbance on a public street and a policeman came to
arrest him, the anger and indignation of the accused resulting from the arrest cannot be
considered passion or obfuscation, because the policeman was performing a lawful act. (U.S.
vs. Taylor, 6 Phil. 162)

The act must be sufficient to produce such a condition of mind.

If the cause of the loss of self-control was trivial and slight, as when the victim failed to
work on the hacienda of which the accused was the overseer, or where the accused saw the
injured party picking fruits from the tree claimed by the former, the obfuscation is not mitigating.
(U.S. vs. Diaz, 15 Phil. 123; People vs. C.A., 44 O.G. 102)

No passion or obfuscation after 24 hours, or several hours or half an hour.

There could have been no mitigating circumstance of passion or obfuscation when more
than 24 hours elapsed between the alleged insult and the commission of the felony (People vs.
Sarikala 37 Phil. 486, 490), or if several hours passed between the cause of passion or
obfuscation and the commission of the crime (People vs. 92 Phil. ) or where at least half an
hour intervened between the previous fight and subsequent killing of the deceased by the
accused.
(People vs. Matbagon, 60 Phil. 887, 890) Although the fact that accused was subjected by the
deceased to a treatment (being slapped and asked to kneel down) offensive to his dignity could
give rise to the feeling of passion or obfuscation, the same cannot be treated as a mitigating
circumstance where the killing took place one month and five days later. (People vs. Mojica,
No. L-30742, April 30, 1976, 70 SCRA 502, 509) It is error to consider for the accused, passion
or obfuscation, where the newspaper articles written by the victim assailing the former's official
integrity have been published for an appreciable period long enough for pause and reflection.
(People vs. Pareja, No. Nov. 29, 1969, 30 SCRA 693, 716-717)
The circumstance is unavailing where the killing took place four days after the stabbing of the
accused's kin. (People vs. Constantino, No. L-23558, Aug. 10, 1967, 20 SCRA 940, 949)
The reason for these rulings is that the act producing the obfuscation must not be far removed
from the commission of the crime by a considerable length of time, during which the accused
might have recovered his normal equanimity.

The defense must prove that the act which produced passion or obfuscation took place
at a time not far removed from the commission of the crime.
The accused claimed that he had not been regularly paid his wages by the victims who,
he claimed further, used to scold him and beat him; but he failed to prove that those acts which
produced passion and obfuscation in him took place at a time not far removed from the
commission of the crime which would justify an inference that after his passion had been
aroused, he had no time to reflect and cool off. Mitigation does not avail him. (People vs.

21
Gervacio No. August 30, 1968, 24 SCRA 960, 977) For the circumstance to exist, it is
necessary that the act which gave rise to the obfuscation be not removed from the commission
of the offense by a considerable length of time, during which period the perpetrator might
recover his normal equanimity. (People vs. Layson No. Oct. 30 SCRA 92, 95-96)

The crime committed must be the result a sudden impulse of natural and uncontrollable
fury.
Obfuscation cannot be mitigating in a crime which was planned and calmly meditated or
if the impulse upon which the accused acted was deliberately fomented by him for a
considerable period of time. (People vs. Daos, 60 Phil. People vs. Hernandez, 43 Phil. 104,
The circumstance of passion and obfuscation cannot be mitigating in a crime which is planned
and calmly meditated before its execution. (People vs. Pagal No. L-32040, Oct. 25, 1977, 79
SCRA 570, 575)
There is neither passion and obfuscation nor proximate vindication of a grave offense where the
killing of the decedent was made four days after the stabbing of the appellant's kin. Moreover,
vengeance is not a lawful sentiment. (People vs. Constantino, et G.R. No. August 10, 1967)

Passion or obfuscation must arise from lawful sentiments.

1. The case of U.S. vs. Hicks, 14 Phil. 127
Facts: For about 5 years, the accused and the deceased lived illicitly in the manner of husband
and wife. Afterwards, the deceased separated from the accused and lived with another man.
The accused enraged by such conduct, killed the deceased.
Held: E v e n if it is true that the accused with obfuscation because of jealousy, the mitigating
circumstance cannot be considered in his favor because the causes which mitigate criminal
responsibility for the loss of self-control are such which originate from legitimate feelings, and
not those which arise from vicious, unworthy and immoral passions.
2. But the ruling in the case of Hicks should be distinguished from the case where the accused,
in the heat of passion, killed his common-law wife upon discovering her in flagrante in carnal
communication with a common acquaintance. It was held in such a case that the accused was
entitled to the mitigating circumstance of passion or obfuscation, because the impulse was
caused by the sudden revelation that she was untrue to him, and his discovery of her in
flagrante in the arms of another. (U.S. vs. De la Cruz, 22 Phil. 429)
In U.S. vs. Hicks, the cause of passion and obfuscation of the accused was his vexation,
disappointment and anger engendered by the refusal of the woman to continue to live
in illicit relations with him, which she had a perfect right to do.
The act of the deceased in refusing to go home with the appellant, while provocative,
nevertheless was insufficient to produce such passion or obfuscation in the latter as would
entitle him to the benefits of that mitigating circumstance. Not being a legitimate husband of the
deceased, the appellant had no legitimate right to compel her to go with him.
The deceased was acting within her rights. The obfuscation which the appellant allegedly
possessed him, granting that he in fact had that feeling, did not originate from a legitimate
cause.

3. Passion or obfuscation must originate from lawful sentiments, not from the fact that, for
example, the girl's sweetheart killed the girl's father and brother because the girl's parents
objected to their getting married and the girl consequently broke off their relationship. Such an
act is actuated more by a spirit of lawlessness and revenge rather than any sudden and
legitimate impulse of natural and uncontrollable fury. (People vs. Nos. May SCRA 123, 133,
134)

In spirit of lawlessness.

22
 The accused who raped a woman is not entitled to the mitigating circumstance of having
acted upon an impulse so powerful as naturally to have produced a passion just because he
finds himself in a secluded place with that young ravishing woman, almost naked, and therefore,
liable to succumb to the uncontrollable passion of his bestial instinct." (People vs. Sanico, C.A.,
46 O.G. 98)

In a spirit of revenge.
A woman taking care of a nine-month-old child, poisoned the child with acid. She did it,
because sometime before the killing of the child, the mother of the child, having surprised her
(accused) with a man on the bed of the master, had scolded her. She invoked the mitigating
circumstance of passion or obfuscation resulting from that scolding by the mother of the child.
Held: She cannot be credited with such mitigating circumstance. She w a s actuated more by
spirit of lawlessness and revenge than by any sudden impulse of natural and uncontrollable
fury. (People vs. Caliso, 58 Phil. 283, 295) Passion and obfuscation may not be properly
appreciated in favor of appellant. To be considered as a mitigating circumstance, passion or
obfuscation must arise from lawful sentiments and not from a spirit of lawlessness or revenge or
from anger and resentment.
In the present case, clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by
Jose. However, a distinction must be made between the first time that Marcelo hacked Jose and
the second time that the former hacked the latter. When Marcelo hacked Jose right after seeing
the latter shoot at Carlito, and if appellant refrained from doing anything else after than, he could
have validly invoked the mitigating circumstance of passion and obfuscation. But when, upon
seeing his brother Carlito dead, Marcelo went back to Jose, who by the n was already prostrate
on the ground and hardly moving, hacking Jose again was a clear case of someone acting out
of anger in the spirit of revenge. (People vs. Bates, G.R. No. 139907)

The offender must act under the impulse of special motives.

Excitement is the natural feeling of all persons engaged in a fight, especially those who
had received a beating, and the impulse in that state is not considered in law so powerful as to
produce obfuscation sufficient to mitigate liability. (People vs. De Guia, C.A., 36 O.G. 1151)
Two individuals had been wrestling together and after being separated, one of them followed up
the other and wounded him with a knife as he was entering a vehicle. Held: The aggressor
cannot claim in his favor that the previous struggle produced in him entire loss of reason or self-
control, for the existence of such excitement as is inherent in all who quarrel and come to blows
does not constitute a mitigating circumstance. The guilty party must have acted under the
impulse of special motives.

Illustration of impulse of special motives.

The accused killed P, because the latter did not deliver the letter of F to A, on which
(letter) the accused had pinned his hopes of settling the case against him amicably. The failure
of P to deliver the letter is a prior unjust and improper act sufficient to produce great excitement
and passion in the accused as to confuse his reason and impel him to kill P. It was a legitimate
and natural cause of indignation and anger. (People vs. Mil, 92 SCRA 89)

Obfuscation arising from jealousy.

The mitigating circumstance of obfuscation arising from jealousy cannot be invoked in
favor of the accused whose relationship with the woman (his common-law wife) was illegitimate.
(People vs. Salazar, 105 Phil. 1058, citing U.S. vs. Hicks, 14 Phil. 217; People vs. Olgado, et L-
4406, March 31, 1952)
Where the killing of the deceased by the accused arose out of rivalry for the h a n d of a
w o m a n , p as s io n or obfuscation is mitigating. The feeling of resentment resulting from

23
rivalry in amorous relations with a woman is a powerful instigator of jealousy and prone to
produce anger and obfuscation. In an early case, it was held that the loss of reason and
selfcontrol due to jealousy between rival lovers was not mitigating.

Obfuscation — when relationship is illegitimate — not mitigating.

The relations of the accused with Rosario Rianzales were illegitimate. The injured party
made indecent propositions to her which provoked the accused. The accused attacked the
injured party. The obfuscation of the accused is not mitigating, because his relations with
Rosario Rianzales were illegitimate.

The cause producing passion or obfuscation must come from the offended party.
The two sons, believing that S would inflict other wounds upon their father, who was
already wounded, in defense of their father, immediately killed S. Under this great excitement,
the two sons also proceeded to attack and did kill C who was near the scene at the time.
Held: Since C had taken no part in the quarrel and had not in any manner provoked the sons,
passion or obfuscation cannot mitigate their liability with respect to the killing of C. This
extenuating circumstance is applied to reduce the penalty in cases where the provocation which
caused the heated passion was made by the injured party. (U.S. vs. et 17 Phil. 260)
Where passion or obfuscation of the accused is not caused by the offended party but by
the latter's relatives who mauled the wife of the accused, the same may not be considered as a
mitigating circumstance in his favor. (People vs. Lao, C.A., 64 O.G. 7873)

May passion or obfuscation lawfully arise from causes existing only in the honest belief
of the offender?
Yes.
(1) Thus, the belief of the defendant that the deceased had caused his dismissal from his
employment is sufficient to confuse his reason and impel him to commit the crime.
(U.S. vs. Ferrer, 1 Phil. 56, 62)
(2) It has also been held that the belief entertained in good
faith by the defendants that the deceased cast upon their mother a spell of witchcraft which was
the cause of her serious illness, is so powerful a motive as to naturally produce passion or
obfuscation. (U.S. vs. Macalintal, 2 Phil. 448, 451; People vs. Zapata, 107 Phil. 103, 109)
(3) One of the accused, a self-anointed representative of God who claims supernatural powers,
demanded of the deceased to kiss and awake her dead sister who, she said, was merely
asleep.
The deceased, an old lady, refused. The accused thought that the deceased had become a
devil. Then she commanded her companions to surround the deceased and pray to drive the
evil spirits away, but, allegedly without success. The accused barked an order to beat the victim
to death as she had turned into Satan or Lucifer. Held: The accused and her sisters are entitled
to the mitigating circumstance of passion or obfuscation. Her order to kiss and awake her sister
was challenged by the victim. This generated a false belief in the minds of the three sisters that
in the victim's person resided the evil spirit — Satan or Lucifer. And this triggered "an impulse so
powerful as naturally to have produced passion or obfuscation." (People vs. Torres, 3 CAR [2s]
43, 56, 57)

Basis of paragraph 6.
Passion or obfuscation is a mitigating circumstance because the offender who
acts with passion or obfuscation suffers a diminution of his intelligence and intent.

Provocation and obfuscation arising from one and the same cause should be treated as only
one mitigating circumstance.

24
Since the alleged provocation which caused the obfuscation of the appellants arose from the
same incident, that is, the alleged maltreatment and/or ill-treatment of the appellants by the
deceased, those two mitigating circumstances cannot be considered as two distinct and
separate circumstances but should be treated as one. Thus, where the accused killed his wife
during a quarrel, because he, who had no work, resented her suggestion to join her brother in
the business of cutting logs, the court erred in considering in favor
of the accused the two mitigating circumstances of provocation and obfuscation.

Vindication of grave offense cannot co-exist with passion and obfuscation.

In the case of People vs. Yaon, C.A., 43 O.G. 4142, it was held that if the accused
assailed his victim in the proximate vindication of a grave offense, he cannot successfully allege
that he was also, in the same breath, blinded by passion and obfuscation, because these two
mitigating circumstances cannot both exist and be based on one and the same fact or motive.
At most, only one of them could be considered in favor of the appellant, but not both
simultaneously. Viada, citing more than one dozen cases, says that it is the constant doctrine of
the Spanish Supreme Court that one single fact cannot be made the basis of different modifying
circumstances.

Exception — When there are other facts, although closely connected.

But where there are other facts, although closely connected with the fact upon which one
circumstance is premised, the other circumstance may be appreciated as based on the other
fact. (People vs. Diokno 63 Phil. 601)
Thus, where the deceased, a Chinaman, had eloped with the daughter of the accused, and later
when the deceased saw the accused coming, the deceased ran upstairs in his house, there are
two facts which are closely connected, namely: (1) elopement, which is a grave offense to a
family of old customs, and (2) refusal to deal with him, a stimulus strong enough to produce in
his mind a fit of passion. Two mitigating circumstances of (1) vindication, and (2) passion were
considered in favor of the accused. The mitigating circumstance of vindication of a grave
offense was based on the fact of elopement and that of passion on the fact that the deceased,
instead of meeting him and asking for forgiveness, ran away from the accused. business of
cutting logs, the court erred in considering in favor of the accused the two mitigating
circumstances of provocation and obfuscation.

Passion or obfuscation incompatible with treachery.

Passion or obfuscation cannot co-exist with treachery, for while in the mitigating
circumstance of passion or obfuscation the offender loses his reason and self-control, in the
aggravating circumstance of treachery, the mode of attack must be consciously adopted. One
who loses his reason and self-control cannot deliberately employ a particular means, method or
form of attack in the execution of a crime. (People vs. Wong, 18 CAR [2s] 934, 940-941)

Vindication or obfuscation cannot be considered when the person attacked is not the
one who gave cause therefor.
Vindication and obfuscation cannot be considered, not only because the elopemen t of
Lucila D a g a t a n with Eleuterio Yara and her a b a n d o n m e nt by the latte r took place long
before the commission of the crime, but also because the deceased was not the one who
eloped with and abandoned her. (People vs . D a g a t a n, et 106 Phil. 88)

Passion and obfuscation cannot co-exist with evident premeditation.

The aggravating circumstance of evident premeditation cannot co-exist with the
circumstance of passion and obfuscation. The essence of premeditation is that the execution of
the criminal act m us t be preceded by calm thought and reflection upon the resolution to carry

25
out the criminal intent during the space of time sufficient to arrive at a composed judgment.
(People vs. Pagal et. G.R. No. L-32040, Oct. 25, 1977)
Passion or obfuscation distinguished from irresistible force.
1. While passion or obfuscation is a mitigating circumstance, irresistible force is an exempting
circumstance.
2. Passion or obfuscation cannot give rise to an irresistible force because irresistible force
requires physical force.
3. Passion or obfuscation, is in the offender himself, while irresistible force must come from a
third person.
4. Passion or obfuscation must arise from lawful sentiments; whereas, the irresistible force is
unlawful.

Passion or obfuscation distinguished from provocation.

1. Provocation comes from the injured party; passion or obfuscation is produced by an impulse
which may be caused by provocation.
2. Provocation must immediately precede the commission of the crime; in passion or
obfuscation the offense which engenders perturbation of mind need not be immediate. It
is only required that the influence thereof lasts until the moment the crime is committed.
3. In both, the effect is the loss of reason and self-control on the part of the offender.

Par. 7. — That the offender had voluntarily surrendered himself to a person in authority
or his agents, or that he had voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.

Two mitigating circumstances are provided in this paragraph.

1. Voluntary surrender to a person in authority or his agents.
2. Voluntary confession of guilt before the court prior to the presentation of evidence for the
prosecution.
Although these circumstances are considered mitigating in the same subsection of
Article 13, when both are present, they should have the effect of mitigating as two independent
circumstances. If any of them must mitigate the penalty to a certain extent, when both are
present, they should produce this effect to a greater extent. (People vs. Fontabla, 61 Phil. 589,
590)

Requisites of voluntary surrender.

a. That the offender had not been actually arrested.
b. That the offender surrendered himself to a person in authority or to the latter's agent.
That the surrender was voluntary.

Requisite of Voluntariness
For voluntary surrender to be appreciated, the same must be spontaneous in such a
manner that it shows the interest of the accused to surrender unconditionally to the authorities,
either because he acknowledged his guilt or because he wishes to save them the trouble and
expenses necessarily incurred in his search and capture. (People vs. Gervacio No. Aug. 30,
1968, 24 SCRA 960, 977, citing People vs. Tenorio 61 Phil. 27)
Merely requesting a policeman to accompany the accused to the police headquarters is
not equivalent to the requirement that he "voluntarily surrendered himself to a person in
authority or his agents." The accused must actually surrender his own person to the
authorities, admitting complicity in the crime. His conduct, after the commission of the crime,
must indicate a desire on his part to own the responsibility for the crime. (People vs. Flores, 21
CAR [2s] 417, 424-425)

26
Cases of voluntary surrender.
1. The accused, after p l u n g i n g a bolo into t h e victim's chest, ran toward the municipal
building. Upon seeing a patrolman, he immediately threw away his bolo, raised his two hands,
offered no resistance and said to the patrolman "here is my bolo, I stabbed the victim." There
was intent or desire to surrender voluntarily to the authorities. (People vs. No. March 30, 1962, 4
SCRA 700, 703)
2. After the commission of the crime, the accused fled to a hotel to hide not from the police
authorities but from the companions of the deceased who pursued him to the hotel but could not
get to him because the door was closed after the accused had entered. Once in the hotel, the
accused dropped his weapon at the door and when the policemen came to investigate, he
readily admitted ownership of the weapon and then voluntarily went with them. He was
investigated by the fiscal the following day. No warrant had been issued for his arrest. The
accused was granted the benefit of the mitigating circumstance of voluntary surrender.
3. Immediately after the shooting , the accuse d h a v i n g all the opportunity to escape, did not
do so but instead called up the police department. When the policemen went to the scene of the
crime to investigate, he voluntarily approached the m and without revealing his identity, told
t h e m that he would help in connection with the case as he knew the suspect and the latter's
motive. When brought to the police station immediately thereafter as a possible witness, he
confided to the investigator s that he was voluntarily surrendering and also surrendering the
fatal gun used in the shooting of the victim. These acts of the accused were held strongly
indicative of his intent or desire to surrender voluntarily to the authorities.

Cases not constituting voluntary surrender.

1. The warrant of arrest showed that the accused was in fact arrested. (El Pueblo contra Conwi,
71 Phil. 595, 597)
2. The accused surrendered only after the warrant of arrest was served upon him. (People vs.
Roldan, No. L-22030, May 23 SCRA 907, 910)
3. Where the accused was actually arrested by his own admission or that he yielded because of
the warrant of arrest, there is no voluntary surrender although the police blotter euphemistically
used the word "surrender."

Not mitigating when defendant was in fact arrested.

There was no voluntary surrender if the warrant of arrest showed that the defendant was
in fact arrested. (People vs. Conwi 71 Phil. 595)
But where a person, after committing the offense and having opportunity to escape,
voluntarily waited for the age n t s of the authorities and voluntarily gave himself up, he is
entitled to the benefit of this circumstance, even if he was placed under arrest by a policeman
then and there. (People vs. Panara 64 Phil. 331) And when the accused helped in carrying his
victim to the hospital where he was disarmed and arrested, it is tantamount to voluntary
surrender. (People vs. Babiera, C.A., 45 O.G., Supp. 5, 311) The facts of Conwi case, supra,
should be distinguished from the facts of the cases of People vs. Parana and People vs.
Babiera, supra, where the arrest of the offender was after his voluntary surrender or after his
doing an act amounting to a voluntary surrender to the agent of a person in authority.

The accused who ran to the municipal building after the commission of the crime had the
intention or desire to surrender.
If the accused wanted to run away or escape, he would not have run to the municipal
building. The fact that on seeing a patrolman, the accused threw away his bolo, raised his two
hands, and admitted having stabbed the injured party, is indicative of his intent or desire to
surrender voluntarily to the authorities.

27
The accused who fled and hid himself to avoid reprisals from the companions of the deceased,
but upon meeting a policeman voluntarily went with him to the jail, is entitled to the benefit of the
mitigating circumstance of voluntary surrender.
Thus, when the accused, after the commission of the crime, fled to the Imperial Hotel for
security purposes, as there was no policeman around and the companions of the deceased
were pursuing him to that place, and once inside he hid himself there, his going voluntarily to
the jail with the policeman who had gone to the hotel to investigate the incident, was held to be
a mitigating circumstance.

When the accused surrendered only after the warrant of arrest had been served upon
him, it is not mitigating.
It appears that appellant surrendered only after the warrant of arrest w a s served upon
him, which cannot be considered as a voluntary surrender."

When the warrant of arrest had not been served or not returned unserved because the accused
cannot be located, the surrender is mitigating.
While it is true that the warrant for the arrest of the accused was dated March 7, 1967
and the police authorities were able to take custody of the accused only on March 31, 1967
there is nothing in the record to show that the warrant had actually been served on him, or
that it had been returned unserved for failure of the server to locate said accused. Upon the
other hand, there is direct evidence that the accused voluntarily presented himself to the police
on March 31 1967. And the fact that it was effected sometime after the warrant of arrest had
been issued does not in the least detract from the voluntary character of the surrender in the
absence of proof to the contrary. (People vs. Braña 30 SCRA 308)

The law does not require that the surrender be prior to the order of arrest.
In People vs. Yeda, 68 Phil. 740 [1939] and People vs. Turalba, G.R. No. Feb. 28, 1974,
it was held that when after thecommission of the crime and the issuance of the warrant of arrest,
the accused presented himself in the municipal building to post the bond for his temporary
release, voluntary surrender is mitigating. The fact that the order of arrest had already been
issued is no bar to the consideration of the circumstance because the law does not require that
the surrender be prior to the order of arrest.

"Voluntarily surrendered himself."

After the incident, the accused reported it to the councilor; that he stayed in the
councilor's place for about an hour; and that thereafter he went to the chief of police to whom he
related what had happened between him and the injured party and surrendered the bolo — not
his person — to said chief of police. Held: The foregoing facts do not constitute voluntary
surrender.
The law requires that the offender must have "voluntarily surrendered
himself to a person in authority or his agents." Surrender of weapons cannot be equated with
voluntary surrender. Where the accused merely surrendered the gun used in the killing, without
surrendering his own person to the authorities, such act of the accused does not constitute
voluntary surrender. (People vs. Palo, 101 Phil. 963, 968)
The fact that the accused did not escape or go into hiding after the commission of the
murder and in fact he accompanied the chief of police to the scene of the crime without however
surrendering to him and admitting complicity in the killing did not amount to voluntary surrender
to the authorities and this circumstance would not be extenuating in that case. (People vs.
Canoy)

28
 Appellant did not go to the PC headquarters after the shooting to surrender but merely to
report the incident. Indeed he never evinced any desire to own the responsibility for the killing of
the deceased. (People vs. Rogales, 6 SCRA 830)

The surrender must be made to a person in authority or his agent.

A person in authority is one directly vested with jurisdiction, that is, a public officer who
has the power to govern and execute the laws whether as an individual or as a member of some
court or governmental corporation, board or commission. A barrio captain and
a barangay chairman are also persons in authority. (Art. 152, RPC, as amended by P.D. No.
299)
An "agent of a person in authority" is a person, who, by direct provision of the law, or by
election or by appointment by competent authority, is charged with the maintenance of public
order and the protection and security of life and property and any person who comes to the aid
of persons in authority. (Art. 152, as amended by Rep. Act No. 1978)
Voluntary surrender to commanding officer of the accused is mitigating, because the
commanding officer is an agent of a person in authority.
Voluntary surrender to the chief clerk of a district engineer is not mitigating, because
such chief clerk is neither a person in authority nor his agent.
An accused who surrendered first to the Justice of the Peace (now Municipal Court),
with whom he posted a bond, and then to the Constabulary headquarters of the province, is
entitled to the mitigation of voluntary surrender. (People vs. Casalme, No. July 26, 1966, 17
SCRA 717, 720-721)

Voluntary surrender does not simply mean non-flight.

Voluntary surrender does not simply m e an non-flight. As a matter of law, it does not
matter if the accused never avoided arrest and never hid or fled. What the law considers as
mitigating is the voluntary surrender of an accused before his arrest, showing either
acknowledgment of his guilt or an intention to save the authorities from the trouble and expense
that his search and capture would require. The fact that the accused did not escape or go into
hiding after the commission of the murder and in fact he accompanied the chief of police to the
scene of the crime without however surrendering to him and admitting complicity in the killing
did not amount to voluntary surrender to the authorities and this circumstance would not be
extenuating in that case. (People vs. Canoy and People vs. Rubinal, supra)

Time and place of surrender.

The Revised Penal Code does not make any distinction among the various moments
when the surrender may occur. Five days after the commission of the crime of homicide and two
days after the issuance of the order for his arrest, the accused presented himself in the
municipal building to post the bond for his temporary release.
Held: This is a voluntary surrender constituting a mitigating circumstance. The law does not
require that the surrender be prior to the issuance of the order of arrest. Moreover, the
surrender of the accused to post a bond for his temporary release was in obedience to the order
of arrest and was tantamount to the delivery of his person to the authorities to answer for the
crime for which his arrest w a s ordered. Note: In these cases, there is nothing in the record to
show that the warrant had actually been served on the accused, or that it had been returned
unserved for failure of the server to locate the accused. The implication is that if the accused
cannot be located by the server of the warrant, the ruling should be different.
But if the appellants surrendered because, after having been fugitives from justice for
more than 7 years, they found it impossible to live in hostility and resistance to the authorities,
martial law having been declared, the surrender was not spontaneous. (People vs. Sabater, 81
SCRA 564)

29
 Likewise, an accused was held entitled to the mitigating circumstance of voluntary
surrender where it appeared that he posted the bond for his provisional liberty eighteen days
after the commission of the crime and fourteen and sixteen days, respectively, after the first and
second warrants for his arrest were issued, the court declaring that the fact that the warrant for
his arrest had already been issued is no bar to the consideration of this mitigating circumstance
because the law does not require that the surrender be prior to the order of arrest. (People vs.
Valera)
By parity of reasoning, therefore, appellant Maximo Diva's voluntary surrender to the chief of
police of the municipality of Poro should be considered to mitigate his criminal liability because
the law does not require him to surrender to the authorities of the municipality of San Francisco
where the offense was committed. (People vs. Diva)
In a homicide case where after the killing of the deceased which took place in Janiuay ,
Iloilo, the two accused fled, took refuge in the house of a lawyer, and surrendered to the
constabulary in Iloilo City, after passing three municipalities, it was held that there w a s
voluntary surrender. (People vs. Cogulio)

The surrender must be by reason of the commission of the crime for which defendant is
prosecuted.
Defendant cannot claim the circumstance of voluntary surrender because he did not
surrender to the authority or its agents by reason of the commission of the crime for which he
was prosecuted, but for being a Huk who wanted to come within the pale of the law.
Thus, if the defendant surrendered as a Huk to take advantage of the amnesty, but the crime for
which he was prosecuted was distinct and separate from rebellion, his surrender is not
mitigating.

Surrender through an intermediary.

The accused surrendered through the mediation of his father before any warrant of
arrest had been issued. His surrender was appreciated as mitigating. (People vs. De la Cruz)

When is surrender voluntary?

A surrender to be voluntary must be spontaneous, showing the intent of the accused to
submit himself unconditionally to the authorities, either (1) because he acknowledges his guilt,
or (2) because he wishes to save them the trouble and expenses necessarily incurred in his
search and capture. If none of these two reasons impelled the accused to surrender, because
his surrender was obviously motivated more by an intention to insure his safety, his arrest being
inevitable, the surrender is not spontaneous and therefore not voluntary. (People vs. Laurel)

The surrender must be spontaneous.

The word "spontaneous" emphasizes the idea of an inner impulse, acting without
external stimulus. The conduct of the accused, not his intention alone, after the commission of
the offense, determines the spontaneity of the surrender. The circumstance that the accused did
not resist arrest or struggle to free himself after he was taken to custody by the authorities
cannot amount to voluntary surrender. (People vs. Siojo)
And while it is claimed that the accused intended to surrender, the fact is that he did not, despite
several opportunities to do so, and was in fact arrested. Voluntary surrender cannot be
appreciated in favor of an accused who surrenders only after a warrant of arrest is issued and
he finds it futile to continue being a fugitive from justice.
For voluntary surrender to be appreciated, it is necessary that the same be spontaneous
in such manner that it shows the intent of the accused to surrender unconditionally to the
authorities, either because he acknowledges his guilt or because he wishes to save them the
trouble and expense necessarily incurred in his search and capture. (People vs. Lingatong)

30
The surrender is not spontaneous where the accused took almost nine months after the
issuance of the warrant of arrest against him before he presented himself to the police
authorities. (People vs. Mabuyo)
Neither is voluntary surrender spontaneous where the accused had gone into hiding for 2 1/2
years before surrendering.

Intention to surrender, without actually surrendering, is not mitigating.

The mitigating circumstance of voluntary surrender cannot be appreciated in favor of the
accused who claims to have intended to surrender but did not, despite several opportunities to
do so, and was in fact arrested. (People vs. Dimdiman)

Note: The law requires that the accused must surrender himself.
There is spontaneity even if the surrender is induced by fear of retaliation by the victim's
relatives.
The fact that the accused gave himself up to the police immediately after the incident
was not considered in his favor, because during the trial, he declared that he did so out of fear
of retaliatory action from the relatives of the deceased. This, according to the trial Judge, is not
the kind of surrender that entitles the accused to the benefit of voluntary surrender.
Held: That the surrender was induced by his fear of retaliation by the victim's relatives does not
gainsay the spontaneity of the surrender, nor alter the fact that by giving himself up, this
accused saved the State the time and trouble of searching for him until arrested.

When the offender imposed a condition or acted with external stimulus, his surrender is
not voluntary.
There could have been no voluntary surrender because the accused went into hiding
after having committed the crimes and refused to surrender without having first conferred with
the town councilor.
A surrender is not voluntary when forced by circumstances as when the culprits
“considered it impossible to live in hostility and resistance to the constituted authorities and their
agents in view of the fact that the said authorities had neither given them rest nor left
them in peace for a moment” (People vs. 61 Phil. 27, 34)
When they started negotiations for their surrender, the roads through which their escape
could be attempted were blocked and the house where they were hiding was surrounded by the
Constabulary forces. They surrendered, because of their belief that their escape was
impossible under the circumstances. The surrender was not voluntary.

Requisites of plea of guilty.

In order that the plea of guilty may be mitigating, the three requisites must be present:
1. That the offender spontaneously confessed his guilt;
2. That the confession of guilt was made in open court, that is, before the competent court that
is to try the case; and
3. That the confession of guilt was made prior to the presentation of evidence for the
prosecution.

The plea must be made before trial begins.

The trial on the merits had commenced and the prosecution had already presented
evidence proving the guilt of the accused when he manifested that he would change his plea of
not guilty to a plea of guilty. He was properly rearraigned. As ruled in People vs. Kayanan (83
SCRA 437), a plea of guilty made after arraignment and after trial had begun does not entitle
the accused to have such plea considered as a mitigating circumstance.

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Plea of guilty on appeal, not mitigating.
Plea of guilty in the Court of First Instance (now RTC) in a case appealed from the
Municipal Court is not mitigating, because the plea of guilty must be made at the first
opportunity, that is, in the Municipal Court.
It cannot be properly stated that the appeal taken by the accused from the Municipal
Court to the Court of First Instance again restored the case to its original state for the reason
that the law requires a trial de novo, because a trial de novo necessarily implies the existence of
a previous trial where evidence was presented by the prosecution.

Philosophy behind the rule.

If an accused, charged with an offense cognizable by the municipal court, pleads not
guilty therein, and on appeal to the court of first instance, changes his plea to that of guilty upon
rearraignment he should not be entitled to the mitigating circumstance of confession
of guilt. The philosophy behind this rule is obvious. For the spontaneous willingness of the
accused to admit the commission of the offense charged, which is rewarded by the mitigating
circumstance, is absent. Indeed, if the rule were otherwise, an accused, who naturally nourishes
the hope of acquittal, could deliberately plead not guilty in the municipal court, and upon
conviction and on appeal to the court of first instance, plead guilty just so he can avail himself of
the benefit of a mitigating circumstance. This cannot be countenanced. The accused should not
be allowed to speculate.

Plea of not guilty at the preliminary investigation is no plea at all.

If an accused is charged with an offense cognizable by the court of first instance, and pleads not
guilty before the municipal court at its preliminary investigation, and after the elevation of the
case to the court of first instance-the court of competent jurisdiction pleads guilty upon
arraignment before this latter court, the plea of not guilty upon arraignment at the preliminary
investigation in the municipal court is no plea at all. Hence, the accused could claim his
plea of guilty in the court of first instance as mitigating circumstance pursuant to Article 13(7) of
the Revised Penal Code

The confession of guilt must be made in open court.

The extrajudicial confession made by the accused is not the voluntary confession which
the Code contemplates. Such confession was made outside of the court. The confession of guilt
must be made in open court. (People vs. Pardo)

The confession of guilt must be made prior to the presentation of the evidence for the
prosecution.
Plea of guilty after the fiscal had presented evidence is not mitigating because the third
requisite is lacking. (People vs. Co Chang)
The benefit of plea of guilty is not deserved by the accused who submits to the law only
after the presentation of some evidence for the prosecution, believing that in the end the trial will
result in his conviction by virtue thereof. (People vs. De la Cruz)
It is not necessary that all the evidence of the prosecution have been presented. Even if
the first witness presented by the prosecution had not finished testifying during the direct
examination when the accused withdrew his former plea of “not guilty” and substituted it with the
plea of "guilty," the plea of guilty is not mitigating.

Withdrawal of plea of not guilty and pleading guilty before presentation of evidence by
prosecution is still mitigating
All that the law requires is voluntary plea of guilty prior to the presentation of the
evidence by the prosecution. Thus, even if during the arraignment, the accused pleaded not

32
guilty, he is entitled to this mitigating circumstance as long as he withdraws his plea of not guilty
and thereafter pleads guilty to the charge before the fiscal
could present his evidence.

The change of plea should be made at the first opportunity.

But in a case where the accused committed the crime on March 22, 1956 and when
arraigned on May 14, 1956 he pleaded not guilty, and it was only on August 11, 1957, or about
1 year, 3 months and 7 days that he felt contrite and repentant by changing his former plea of
not guilty to that of guilty, his plea of guilty was obviously not spontaneous, and was apparently
done not because of his sincere desire to repent but because of his fear of eventual conviction.
If it was his desire to repent and reform, he could have pleaded guilty at the very first
opportunity when his arraignment was first set. (People vs. Quesada, 58 O.G. 6112)

A conditional plea of guilty is not a mitigating circumstance.

The plea of guilty was conditioned upon the allegation that the killing was done w h e n
the appellant surprised his wife in the act of sexual intercourse with the deceased Moro Lario.
We already pointed out that “an accused may not enter a conditional plea of guilty in the sense
that he admits his guilt provided that a certain penalty be imposed upon him." We are, therefore,
constrained to hold that the appellant in this case must be considered as having entered a plea
of not guilty. (People vs. Moro Sabilul, 89 Phil. 283, 285)

Death penalty changed to life imprisonment because of plea of guilty, even if done during
the presentation of evidence.
While the accused entered a plea of guilty, he did it only during the continuation of the
trial so that this circumstance may not, under the law, be considered to mitigate the liability of
the accused. However, such an admission of guilt indicates his submission to the law and a
moral disposition on his part to reform, hence, the death penalty imposed is changed to life
imprisonment. (People vs. Coronel)

Plea of guilty to amended information.

Trial had already begun on the original information for murder and frustrated murder.
However, in view of the willingness of the accused to plead guilty for a lesser offense, the
prosecution, with leave of court, amended said information to make it one for homicide and
frustrated homicide, and the accused pleaded guilty thereto. That was an entirely new
information and no evidence was presented in connection with the charges made therein before
the accused entered his plea of guilty. The accused is entitled to the mitigating circumstance of
plea of guilty. (People vs. Ortiz)

Plea of guilty to lesser offense than that charged, not mitigating.

Plea of guilty to a lesser offense is not a mitigating circumstance, because to be
voluntary, the plea of guilty must be to the offense charged. (People vs. Noble, 77 Phil. 93)
For voluntary confession to be appreciated as an extenuating circumstance, the same
must not only be made unconditionally but the accused must admit to the offense charged, i.e.,
robbery with homicide in the present case, and not to either robbery or homicide only. Hence, if
the voluntary confession is conditional or qualified, it is not mitigating. (People vs. Gano)
But when the defendant pleaded guilty, only manifesting that evident premeditation
alleged in the information did not attend the commission of the crime, and when the court
required the presentation of evidence on premeditation the prosecution failed to prove it, the
plea of guilty is mitigating, because although the confession was qualified and introduction of
evidence became necessary, the qualification did not deny the defendant's guilt and, what is

33
more, was subsequently justified. It was not the defendants’ fault that aggravating
circumstances were erroneously alleged in the information.

Plea of guilty to the offense charged in the amended information, lesser than that
charged in the original information, is mitigating.
Charged with double murder, the accused moved the Court to permit him to withdraw his
former plea of not guilty to be substituted with that of guilty to the lesser crime of double
homicide. The prosecution moved to amend the information so as to change the crime from
double murder to double homicide. Both motions were granted by the court.
Held: The plea of guilty to the lesser offense charged in the amended information is mitigating.

When the accused is charged with a grave offense, the court should take his testimony
in spite of his plea of guilty.
The trial court should "determine whether the accused really and truly comprehended
the meaning, full significance and consequences of his plea and that the same was voluntarily
and intelligently entered or given by the accused." (People vs. Lacson)
Because there is no law prohibiting the taking of testimony after a plea of guilty, where a
grave offense is charged, this Court has deemed such taking of testimony the prudent and
proper course to follow for the purpose of establishing the guilt and the precise degree of
culpability of the defendant.

Mandatory presentation of evidence in plea of guilty to capital offense.

The Revised Rules of Criminal Procedure (Rule 116, Sec. 3) provides that where the
accused pleads guilty to a capital offense, that court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea and shall require the
prosecution to prove his guilt and the precise degree of culpability. The accused may present
evidence in his behalf.

Searching Inquiry.
The guidelines in the conduct of a searching inquiry are as follows:
(1.) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b)
whether he had the assistance of a competent counsel during the custodial and preliminary
investigations; and (c) under what conditions he was detained and interrogated during the
investigations. This is intended to rule out the possibility that the accused has been coerced or
placed under a state of duress either by actual threats of physical harm coming from malevolent
quarters or simply because of the judge's intimidating robes.
(2) Ask the defense counsel a series of questions as to whether he had conferred with, and
completely explained to, the accused the meaning and consequences of a plea of guilty.
(3) Elicit information about the personality profile of the accused, such as his age, socio-
economic status, and educational background, which may serve as a trustworthy index of his
capacity to give a free and informed plea of guilty.
(4) Inform the accused of the exact length of imprisonment or nature of the penalty under the
law and the certainty that he will serve such sentence. For not infrequently, an accused pleads
guilty in the hope of a lenient treatment or upon bad advice or because of promises of the
authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty
of the judge to ensure that the accused does not labor under these mistaken impressions
because a plea of guilty carries with it not only the admission of authorship of the crime proper
but also of the aggravating circumstances attending it, that increase punishment .
(5) Inquire if the accused knows the crime with which he is charged and to fully explain to him
the elements of the crime which is the basis of his indictment. Failure of the court to do so would

34
constitute a violation of his fundamental right to be informed of the precise nature of the
accusation against him and a denial of his right to due process.
(6) All questions posed to the accused should be in a language known and understood by the
latter.
(7) The trial judge mus t satisfy himself that the accused, in pleading guilty, is truly guilty. The
accused must be required to narrate the tragedy or reenact the crime or furnish its missing
details.

Reasons why plea of guilty is mitigating.

It is an act of repentance and respect for the law; it indicates a moral disposition in the
accused, favorable to his reform.

Basis of paragraph 7.
The basis of the mitigating circumstances of voluntary surrender and plea of
guilty is the lesser perversity of the offender.

Plea of guilty is not mitigating in culpable felonies and in crimes punished by special
laws.
Art. 365, par. 5, of the Revised Penal Code, which prescribes the penalties for culpable
felonies, provides that "in the imposition of these penalties, the courts shall exercise their sound
discretion, without regard to the rules prescribed in Art. 64." This last-mentioned article states,
among other rules, that when there is a mitigating circumstance without any aggravating
circumstance, the penalty to be imposed is the minimum period of the divisible penalty. When
the crime is punished by a special law, the court shall also exercise its sound discretion, as Art.
64 is not applicable. The penalty prescribed by special laws is usually not divisible into three
periods.
Art. 64 is applicable only when the penalty has three periods.

Par. 8. — That the offender is deaf and dumb, blind or otherwise suffering from some
physical defect which thus restricts his means of actions, defense, or communication
with his fellow beings.

Deaf and dumb.

In a criminal case charging robbery in an inhabited house, the accused is deaf and
dumb. Held: He is entitled to the mitigating circumstance of being deaf and dumb under Article
13, paragraph 8. (People vs. Nazario, 97 Phil. 990)

Physical defect must restrict means of action, defense, or communication with fellow
beings.
Physical defect referred to in this paragraph is such as being armless, cripple, or a
stutterer, whereby his means to act, defend himself or communicate with his fellow beings are
limited. (Albert)
Question: Does this paragraph apply when the deaf-mute or the blind is educated?
This paragraph does not distinguish between educated and uneducated deaf-mute or blind
persons. The Code considers them as being on equal footing.

Basis of paragraph 8.
Paragraph 8 of Art. 13 considers the fact that one suffering from physical defect, which
restricts one's means of action, defense, or communication with one's fellow beings, does not
have complete freedom of action and, therefore, there is a diminution of that element of
voluntariness.

35
Par. 9. — Such illness of the offender as would diminish the exercise of the will-power of
the offender without however depriving him of consciousness of his acts.

Requisites:
1.That the illness of the offender must diminish the exercise of his will-power.
2. That such illness should not deprive the offender of consciousness of his acts.

When the offender completely lost the exercise of will-power, it may be an exempting
circumstance.
When a person becomes affected either by dementia praecox or by manic depressive
psychosis, during the period of excitement, he has no control whatsoever of his acts. in the case
of People vs. Bonoan, 64 Phil. 95)
In such case, the person affected, acted upon an irresistible homicidal impulse.
In the Bonoan case, the Supreme Court found the accused demented at the time he
perpetrated the crime of murder and acquitted the accused.

Does this circumstance include illness of the mind?

Question: Does this paragraph refer to the mental condition more or less disturbed?
It is said that the foregoing legal provision refers only to diseases of pathological state
that trouble the conscience or will. (Albert)
Thus, this paragraph was applied to a mother who, under the influence of a puerperal
fever, killed her child the day following her delivery. (Dec. Sup. Ct. Spain, Sept. 28, 1897)
But in the case of People vs. Francisco, 78 Phil. 694, it was held that this paragraph
applies to defendant who committed the crime while suffering from some illness (of the body,
the mind, the nerves, or the moral faculty).
Note that in accordance with the ruling in the above-mentioned case, illness of the mind
is included. It would seem that a diseased mind, not amounting to insanity, m ay give place to
mitigation.

Illness of the offender considered mitigating.

1. The mistaken belief of the accused that the killing of a witch was for the public good may be
considered a mitigating circumstance for the reason that those who have obsession that witches
are to be eliminated are in the same condition as one who, attacked with a morbid infirmity but
still retaining consciousness of his acts, does not have real control over his will. (People vs.
Balneg)
2. Example of illness of the nerves or moral faculty.
“Although she is mentally sane, we, however, are inclined to extend our sympathy to the
appellant because of her misfortunes and weak character. According to the report she is
suffering from a mild behaviour disorder as a consequence of the illness she had in early life.
We are willing to regard this as a mitigating circumstance under Art. 13, Revised Penal Code,
either in paragraph 9 or in paragraph 10."(People v. Amit)
3. One who was suffering from acute neurosis which made him ill-tempered and easily angered
is entitled to this mitigating circumstance, because such illness diminished his exercise of will
power. (People vs. Carpenter, C.A., G.R. No. 4168, April 22, 1940)
4. The fact that the accused is feebleminded warrants the finding in his favor of the mitigating
circumstance either under paragraph 8 or under paragraph 9 of Art. 13. (People vs.
Formigones, 87 Phil. 658)
5. The evidence of accused-appellant shows that while there was some impairment of his
mental faculties, since he was shown to suffer from the chronic mental disease called shizo-
affective disorder or psychosis, such impairment was not so complete as to deprive him of his

36
intelligence or the consciousness of his acts. The schizo-affective disorder or psychosis of
accused-appellant may be classified as an illness which diminishes the exercise of his will-
power but without depriving him of the consciousness of his acts. He may thus be credited with
this mitigating circumstance but will not exempt him from his criminal liability. (People vs.
Antonio, Jr., G.R. No. 144266, Nov. 27, 2002)

Basis of paragraph 9.
The circumstance in paragraph 9 of Art. 13 is mitigating because there is a
diminution of intelligence and intent.

Par. 10. — And, finally, any other circumstance of a similar nature and analogous to
those abovementioned.

Must be of similar nature and analogous to those mentioned in paragraphs 1 to 9 of Art. 13

This paragraph authorizes the court to consider in favor of the accused “any other
circumstance of a similar nature and analogous to those mentioned" in paragraphs 1 to 9 of Art.
13.

Over 60 years old with failing sight, similar to over 70 years of age mentioned in paragraph 2.
The fact that the defendant was over 60 years old and with failing sight, is analogous to
circumstance No. 2 of Art. 13, as similar to the case of one over 70 years of age.

Outraged feeling of owner of animal taken for ransom analogous to vindication of a grave
offense.
The accused is entitled to the mitigating circumstance of analogous to, if not the s a m e
as, vindication of a grave offense committed by the deceased where the latter took away the
carabao of the accused and held it for ransom, and thereafter failed to fulfill his promise to pay
its value after the carabao had died. (People v. Monaga)

Outraged feeling of creditor, similar to passion and obfuscation mentioned in paragraph

6.
A person who killed his debtor who had tried to escape and refused to pay his debt is
entitled to mitigating circumstance similar to passion and obfuscation. (People vs. Merenillo,
C.A., 36 O.G. 2283)

Impulse of jealous feeling, similar to passion and obfuscation.

The fact that the accused committed slander by charging the offended party with being
the concubine of the husband of the accused under the impulse of a jealous feeling apparently
justified, though later discovered to be unfounded, because the complainant, as verified by
physical examination, was a virgin, may be taken, under Article 13, paragraph 10, of the
Revised Penal Code, as a mitigating circumstance similar to passion and obfuscation. (People
vs. Ubengen, C.A., 36 O.G. 763)

Manifestations of Battered Wife Syndrome, analogous to an illness that diminishes the

exercise of will power.
The cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control”
“psychological paralysis," and "difficulty in concentrating or impairment of memory."

37
Based on the explanations of the expert witnesses, such manifestations were analogous
to an illness that diminished the exercise by appellant of her will power without,
however, depriving her of consciousness of her acts.
There was, thus, a resulting diminution of her freedom of action, intelligence or intent.
Pursuant to paragraphs 9 and 10 of Article 13 of the Revised Penal Code, this circumstance
should be taken in her favor and considered as a mitigating factor. (People vs. Genosa, G.R.
No. 135981, Jan. 14, 2004)

Esprit de corps, similar to passion and obfuscation.

Mass psychology and appeal to esprit de corps is similar to passion or obfuscation. In
this case, many of the soldiers who took part in the killing of the deceased responded to the call
and appeal of their lieutenant who urged them to avenge the outrage committed by the
deceased who had summarily ejected certain soldiers from the dance hall. They considered the
act of the deceased a grave insult against their organization. (People vs. Villamora, 86 Phil.
287)

Voluntary restitution of stolen property, similar to voluntary surrender mentioned in

paragraph 7.
On the other hand, voluntary restitution of the property stolen by the accused or
immediately reimbursing the amount malversed (People vs. Luntao, C.A., 50 O.G. 1182) is a
mitigating circumstance as analogous to voluntary surrender.
The act of testifying for the prosecution, without previous discharge, by Lorenzo
Soberano (one of the accused) should be considered in his favor as a mitigating circumstance
analogous to a plea of guilty. (People vs. Navasca, 76 SCRA 72)

Extreme poverty and necessity, similar to incomplete justification based on state of

necessity.
The accused, on account of extreme poverty and of the economic difficulties then
prevailing, was forced to pilfer two sacks of paper valued at Php 10 from the Customhouse. He
sold the two sacks of paper for Php 2.50 Held: The right to life is more sacred than a mere
property right. That is not to encourage or even countenance theft, but merely to dull some what
the keen and pain-producing edges of the stark realities of life. (People vs. Macbul, 74 Phil. 436,
438- 439)
State of necessity is a justifying circumstance under Art. 11 paragraph 4. Incomplete
justification is a mitigating circumstance under paragraph 1 of Article 13.
Extreme poverty may mitigate a crime against property, such as theft, but not a crime of
violence such as murder. (People vs. Agustin)
But it is not mitigating where the accused had impoverished himself and lost his gainful
occupation by committing crimes and not driven to crime due to want and poverty. (People vs.
Pujinio)

Testifying for the prosecution, analogous to plea of guilty.

The act of the accused of testifying for the prosecution, without previous discharge, is a
mitigating circumstance analogous to a plea of guilty. (People vs. Navasca)

Killing the wrong man is not mitigating.

Neither do we believe that the fact that he made a mistake in killing the wrong m a n
should be considered as a mitigating circumstance. (People vs. Gona, 54 Phil. 605, 606-607)

Not analogous mitigating circumstance.

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 In parricide, the fact that the husband of the accused was unworthy or was a rascal and
a bully and was bad (People vs. Canja, 86 Phil. 518, 521), or that the victim was a bad or
quarrelsome person (People vs. Fajardo, C.A., 36 O.G. 2256) is not a circumstance of a similar
nature and analogous to any of those mentioned in the preceding paragraphs of Art. 13.
The accused, who was charged with the crime of falsification, pleaded guilty and invoked as
mitigating circumstance the lack of irreparable material damage. Held: This is not recognized as
a mitigating circumstance in the Revised Penal Code. Neither is it among those which may be
considered as similar in nature and analogous to those expressly prescribed as mitigating
circumstances.
(People vs. Dy Pol, 64 Phil. 563, 565)

Not resisting arrest, not analogous to voluntary surrender.

Yielding to arrest without the slightest attempt to resist is not analogous to voluntary
surrender. (People vs. Rabuya)

The condition of running amuck is not mitigating.

The Revised Penal Code enumerates the circumstances which mitigate criminal liability,
and the condition of running amuck is not one of them, or one by analogy. The defense
contended that running amuck is a cult among the Moros that is age-old and deeply rooted.
Insofar as they are applicable, mitigating circumstances must be applied alike to all
criminals be they Christians, Moros or Pagans. (People vs. Salazar, 105 Phil. 1058)

Mitigating circumstances which are personal to the offenders.

Mitigating circumstances which arise (1) from the moral attributes of the offender, or (2)
from his private relations with the offended party, or (3) from any other personal cause, shall
only serve to mitigate the liability of the principals, accomplices, and accessories as to whom
such circumstances are attendant. (Art. 62, par. 3)

Mitigating circumstances which arise from the moral attributes of the offender.
A and B killed C, A acting under an impulse which produced obfuscation. The
circumstance of obfuscation arose from the moral attribute of A and it shall mitigate the liability
of A only. It shall not mitigate the liability of B.

Mitigating circumstances which arise from the private relations of the offender with the
offended party.
A, son of B, committed robbery against the latter, while C, a stranger, bought the property taken
by A from B, knowing that the property was the effect of the crime of robbery. The circumstance
of relationship (Art. 15) arose from the private relation of A with B and it shall mitigate the liability
of A only. It shall not mitigate the liability of C, an accessory. (Art. 19)
Mitigating circumstances which arise from any other personal cause.
A, 14 years old and acting with discernment, inflicted serious physical injuries on C.B,
seeing what A had done to C, kicked the latter, thereby concurring in the criminal purpose of A
and cooperating with him by simultaneous act. (Art. 18) The circumstance of minority arose from
other personal cause and it shall mitigate the liability of A only. It shall not mitigate the liability of
B, an accomplice. Note: It seems that all mitigating circumstances are personal
to the offenders.

Circumstances which are neither exempting nor mitigating.

1. Mistake in the blow or aberratio ictus, for under Art. 48, there is a complex crime committed.
The penalty is even higher.

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2. Mistake in the identity of the victim, for under Art. 4, par. 1, the accused is criminally liable
even if the wrong done is different from that which is intended. See Art. 49 as to its effect on the
penalty.
3. Entrapment of the accused.
4. The accused is over 18 years of age. If the offender is over 18 years old, his age is neither
exempting nor mitigating. (People vs. Marasigan, 70 Phil. 583)
5. Performance of righteous action.
The performance of righteous action, no matter how meritorious it may be, is not
justifying, exempting, or mitigating circumstance in the commission of wrongs, and
although the accused had saved the lives of a thousand and one persons, if he caused the
killing of a single human being, he is, nonetheless, criminally liable. (People vs. Victoria, 78 Phil.
122)

(next modular topic start in Article 14, RPC, Aggravating Circumstances)

MODULAR ACTIVITY
Instructions:
1. The answers to the corresponding questions should be written in yellow paper (nota
bene: handwritten) and shall be submitted in my law office near Jurenz Motorshop (stalls
before the road going in Libertad National High School);
2. This module is good for one (1) week and thus the submission of the module activity
should also be after one week commencing from the date of the uploading of the Module
in the preferred online platform subject to the discretion of the instructor;
3. Your answer should be concise and substantial. (No need for a novel like answers);
4. Note also that the names used in the questions are all fictitious and not intended to
defame any person with the same name, no malice intended;
5. Refrain from giving impertinent answers and always cite legal basis if warranted; and
6. Please indicate in your answer sheet, your name and block or section.

ESSAY (5 POINTS EACH)

QUESTION NO.1: Bato is a person with a known unstable mind or condition, he was diagnosed
with a mental condition of Schizophrenia, that he cannot oftentimes delineate reality from
fantasy, this was due to the long-term effect of his drug abuse. He usually roams around with a

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bag full of trash in their Barangay. One day Bato after stealthy share a ride with a PUV arrived in
another town which is 2 hours away from their Barangay. While roaming, he saw other beggars
and street dwellers using illegal drugs and to satisfy his insatiable desires for drugs, he also
used the same. While under the influence of illegal drugs, he saw a young beautiful lady named
Lenie walking in the street, Bato catcalled her and since she didn’t response, Bato knock her out
with the use of a huge rock, hitting her head which caused her instantaneous death. Is Bato
criminally liable? Can he claim the defense of insanity? Why? Cite your legal basis.

QUESTION NO. 2: Digong is 17 years old and a student of San Beda University. He is also a
member of a notorious gang/frat in their school. Digong has a huge crush to Leila, a university
leader and beauty queen. He was however always rejected by Leila. One night, Digong,
because of his unceasing desires towards Leila, ask their gang/frat to kidnap Leila and bring
Leila in one abandon house for Digong to rape her. After the planning, the gang/frat ensued to
kidnap Leila and brought her to one abandon house, they left her tied and blindfolded. Digong
also proceeded to rape her that night. Is Digong criminally liable for the acts committed? Can he
claim the defense of minority? Why? Cite your legal basis.

QUESTION NO. 3: Tulfo is a person who is always over joyed, whether it is on account of an
occasion or not. During the midnight of December 31, to celebrate the new year, Tulfo always
fire his gun. Although such acts of Tulfo never causes any accident. Until one night of
December 31, he was very happy of the incoming year, he went outside which is also populated
by some other people who are celebrating the occasion, Tulfo fires three shot in the air using his
AK47, but this time, the bullet went stray and hit a child who is sleeping in the nearby house, as
a result the child died. Is Tulfo criminally liable for his acts? Can he claim a defense that it was
merely an accident? Why? Cite your legal basis.

QUESTION NO. 4: Manny is an ambitious and jealous person who holds grudges against his
mother Dionisia, and this was rooted on the fact that Dionisia loves more and holds dearly
Bobby, his other brother than Manny. One night, Manny abducted his mother Dionisia and
Bobby and brought them in a warehouse. After removing their blindfolds, Manny while pointing
M16 at Bobby, untied Bobby and ask him to use the caliber 45 to kill their mother Dionisia.
Bobby refuse at first, which made Manny angry and fire one shot in Bobby’s foot. After Bobby
again refuse to heed to the direction of Manny, Manny again fired one shot in Bobby’s leg.
Bobby was losing a lot of blood, and the M16 is now pointed in his head. Manny again ask
Bobby to kill their mother, and then Bobby pulls the trigger of the caliber 45 hitting the chest of
their mother Dionisa and killing her. Is Bobby criminally liable? Why not? Cite your legal basis.

QUESTION NO. 5: Robin and Batman are best friends. Robin seldom plays joke to Batman,
while Batman does not get easily offended to jokes, Robin is not the same. One time Batman is
playing joke to Robin, saying his girlfriend is a “girlfriend ng bayan”, Robin because of being so
sensitive got offended easily and suddenly drew his gun and pointed to Batman, Robin
however, accidentally pulls the trigger and shot Batman in the face. Batman immediately died as
a result. Is Robin criminally liable? Is he entitled to any mitigating circumstances if any? Why?
Cite your legal basis.

QUESTION NO. 6: Sarah and Bonggo are lovers. They are not however married, since they
have their own spouses and still have their valid marriage to them. They are maintaining their
illicit relationship for 10 years already. Sarah is a known unchaste woman, who obtains her
profit thru escorting high profile. One night, while Bonggo is walking in the street, he saw Sarah
hugging and kissing another man. Bonggo because of his outrage, he peppered them with
bullets using his Vector smg, which resulted to the deaths of Sarah and Bonggo. Is Bonggo

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criminally liable? Can he claim the mitigating circumstance of passion or obfuscation? Why?
Cite your legal basis.

QUESTION NO. 7: Noli is a criminal fugitive who is hiding because of the murder he committed.
An information was already filed in the court of competent jurisdiction and consequently a
warrant of arrest was also issued. He was at large for 5 years. One night, Noli had a dream that
the lord almighty wants him to face the crime he committed and that he must be courageous to
face its consequence. Noli then contacted Failon, a town priest, that he will go to Failo to
surrender. Failon then alerted the police. On that day, Noli came to Failon and asking the
forgiveness of the almighty and confessing his guilt, the police then arrive serving his warrant of
arrest and arrested Noli. Can Noli claim the mitigating circumstance of voluntary surrender?
Why not? Cite your legal basis.

QUESTION NO. 8: Grace was born deaf and dumb. She is also an introvert who doesn’t want
to socialize to other people. Grace because of being unemployed only depends her money to
what her parents can give to her. One day, while going to the Department Store, Grace was
attracted to Couture Beauty Diamond Lipstick, because of not having any money at that time,
Grace decided to steal the same. She was however, apprehended by one of the staff and
brought her to police station to file a complaint for theft. Can Grace claim a mitigating
circumstance of being a deaf and dumb? Why not? Cite your legal basis.

QUESTION NO. 9: Revilla is known drug peddler in their Barangay. One night he was arrested
thru a buy-bust operation by the PDEA with the joint operation of the police. A 0.0001gram of
shabu was seized with a buy bust money of 200 pesos. During the pre-trial, the lawyer of Revilla
requested for a plea bargaining to a lesser offense of possession, to which the judge agreed.
Revilla then entered a plea of guilty to the lesser offense of possession of illegal drugs. Can
Revilla claim the mitigating circumstance of voluntary plea of guilty? Why not? Cite your legal
basis.

QUESTION NO. 10: Give 3 Exempting Circumstances and Mitigating Circumstance with
corresponding one example each.

-end-

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