CRIMINAL LAW I

Definition

Criminal law is that branch or division of public law which defines crimes, treats of their nature,
and provides for their punishment.

Crime is defined as an act committed or omitted in violation of public law forbidding or

commanding it. It is a positive or negative act in violation of penal law; an offense against the
state. (Black’s Law Dictionary)

Accused is a person formally charged in court for having violated a penal law – either the
Revised Penal Code or a special law; a person against whom an accusation is made. (Black’s
Law Dictionary)

Sources of Philippine Criminal Law

1. The Revised Penal Code (Act No. 3815) which took effect on January 1, 1932, and its
amendments;
2. Special laws defining acts and providing penalties for them passed by the legislative
department or branch of Philippine Government known variously in Philippine history as
Philippine Commission, Philippine Assembly, Philippine Legislature, National
Assembly, Batasang Pambansa and Congress of the Philippines;
3. Presidential Decrees of Pres. Ferdinand E. Marcos during his term; and
4. Executive Orders of former Pres. Corazon C. Aquino during her incumbency.

Rights of the Accused

A. Constitutional Rights
1. Right to bail except those charged with offenses punishable by reclusion perpetua
(and/ or death) when evidence of guilt is strong. (Sec. 13, Art. III)
2. To be presumed innocent until the contrary is proved, to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him, to
have a speedy, impartial and public trial, to meet the witnesses face to face, and
the right to compulsory process to secure attendance of witnesses, and production
of evidence. (Sec. 14, Art. III)
3. Not to be compelled to be a witness against himself. (Sec. 17, Art. III)
4. Right against excessive fines or cruel, degrading or inhuman punishment. (Sec.
19, Art. III)
5. Right not to be put twice in jeopardy of punishment for the same offense. (Sec. 2,
Art. III)
B. Statutory Rights
1. To be presumed innocent until the contrary is proved beyond reasonable doubt.
2. To be informed of the nature and cause of accusation against him.
3. To be present and defend in person and by counsel at every stage of the
proceedings; to defend himself in person when it sufficiently appears to the court
that he can protect his rights without the assistance of counsel.
4. To testify as a witness in his own behalf.
5. To be exempt from being compelled to be a witness against himself.
6. To confront and cross-examine the witnesses against him.
7. To have a compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.
8. To have a speedy, impartial and public trial, and
9. To have the right to appeal in all cases allowed and in the manner prescribed by
law. (Sec. 115, Rules of Court)

1
 It must be taken note of that the right to appeal is not a constitutional right. Congress may
therefore pass a law eliminating or taking away this right.
3 Main Characteristics or Components of Philippine Criminal Law

1. General
-meaning that Philippine criminal laws are binding on all persons who live or sojourn in
the Philippines. Whoever you are, whatever be your creed, religion, sex or nationality, as
long as you reside in the Philippine territory, penal laws of the Philippines shall apply on
you. Thus, the contention of the accused that being an American citizen he can not be
prosecuted for, much less convicted of, Illegal Possession of Firearm because it is a
constitutional right of the citizens of the U.S.A. “to keep and bear arms” without need of
securing government license therefore is untenable since the Philippines, as a sovereign
state, has a right to uphold its law and maintain order within its domain, and with the
general jurisdiction to punish persons for offenses committed within its territory. (People
vs. Galacgac, C.A. 54 O.G. 1027)

Exceptions to the general application of criminal law:

A. Principles of Public International Law

Thus, sovereigns and other chiefs of state, Ambassadors, Ministers plenipotentiary,

Minister residents, and charges d’affaires even if residing or sojourning in the
Philippines, and committing crimes herein are not subject to our penal laws.

B. Treaties or Treaty Stipulations

The persons who are exempted from the operation or application of our criminal laws
under the provisions of the treaties entered into by the Philippines with another
country are likewise exempted. Under the defunct Military Bases Agreement entered
into by Philippines and U.S.A. on March 14, 1947- any offense committed outside the
bases by any member of armed forces of the United States where the offended party
is also a member of the said armed forces is not cognizable by Philippine courts.

C. Laws of Preferential Application

An example is Sec. 11 of Art. VI of the Constitution which provides that “No

member shall be questioned nor be held liable in any other place for any speech or
debate in Congress or in any committee thereof”. Thus, if Senator A delivers a
libelous speech in Congress against B, he can not be punished or be held liable even
if he is residing in the Philippines.

2. Territorial

-in that our criminal law undertakes to punish crimes committed only within the
Philippine Territory. Outside of the parameters of the Philippine archipelago, Philippine
criminal laws can not be enforced.

There are exceptions however. Under Art. 2 of the Revised Penal Code, there are five (5)
instances where the provisions shall be enforced outside of the jurisdiction of our country
against those who:

A. Should commit an offense while on a Philippine ship or airship.

B. Should forge or counterfeit any coin or currency note of the Philippines or obligations
and securities issued by the Government of the Philippines.
C. Should be liable for acts connected with the introduction into the Philippines of the
obligations and securities mentioned in the preceding number.

2
 D. While being public officers or employees, should commit an offense in the exercise of
their functions; or
E. Should commit any of the crimes against national security and the law of nations
defined in Title One of Book Two of this Code. [Treason, Conspiracy and Proposal to
Commit Treason, Espionage, Mutiny, Rebellion, Conspiracy to Commit Rebellion,
Sedition, Coup d’ etat]

3. Prospective

-meaning that a penal law can not make an act punishable when it was not punishable
when committed. In other words, crimes are punished under the laws in force at the time
the same were perpetrated. It is in consonance with the constitutional prohibition against
Ex Post Facto Law. It reflects the maxim: nullum crimen sine poena; nulla poena sine
lege- that is, there is no crime without a penalty and there is no penalty without law.

Exception however is provided by for by Article 22. It says:

Penal laws shall have a retroactive effect insofar as they favor the person guilty of
a felony who is not a habitual criminal, as this term is defined in Rule 5 of Article
62 of this Code xxx.

The retroactive effect shall benefit the accused even if at the time of the publication of the
law, a final judgment has been pronounced and the convict is serving sentence.

Even if the law uses the words “felony” and “habitual criminal as this term is defined in
Rule 5 of Article 62”, this is applicable to special laws which provide more favorable
conditions to the accused. (People vs. Soliman)

The retroactive effect shall benefit the accused even if at the time of the publication of the
law, a final judgment has been pronounced and the convict is serving sentence.

There is no retroactive effect however, even if the law is favorable to the accused if he is
a habitual delinquent or where the law is expressly made inapplicable to pending actions.
(Tavera vs. Valdez)

INTERPRETATION IN CASE OF DOUBT

Where doubt exists, the penal law must be interpreted liberally in favor of the accused
and strictly against the state.

3
 AN ACT REVISING THE PENAL
CODE AND OTHER PENAL LAWS
(December 8, 1930)
 
Preliminary Article — This law shall be
known as "The Revised Penal Code."

BOOK ONE
GENERAL PROVISIONS
REGARDING THE DATE OF
ENFORCEMENT AND
APPLICATION OF THE PROVISIONS
OF THIS CODE, AND REGARDING
THE OFFENSES, THE
PERSONS LIABLE AND THE
PENALTIES
 
Preliminary Title
 
DATE OF EFFECTIVENESS AND
APPLICATION
OF THE PROVISIONS OF THIS CODE
  
Article 1. Time when Act takes effect. —
This Code shall take effect on the first
day of January, nineteen hundred and
thirty-two.

Art. 2. Application of its provisions. —

Except as provided in the treaties and
laws of preferential application, the
provisions of this Code shall be enforced
not only within the Philippine
Archipelago, including its atmosphere,
its interior waters and maritime zone,
but also outside of its jurisdiction,
against those who:
1. Should commit an offense while on a
Philippine ship or airship
2. Should forge or counterfeit any coin
or currency note of the Philippine
Islands or obligations and securities
issued by the Government of the
Philippine Islands;
3. Should be liable for acts connected
with the introduction into these islands
of the obligations and securities
mentioned in the presiding number;
4. While being public officers or
employees, should commit an offense in

4
the exercise of their functions; or
5. Should commit any of the crimes
against national security and the law of
nations, defined in Title One of Book
Two of this Code.

Title One
FELONIES AND CIRCUMSTANCES
WHICH AFFECT CRIMINAL
LIABILITY
Chapter One
FELONIES

Art. 3. Definitions. — Acts and

omissions punishable by law are felonies
(delitos).
Felonies are committed not only be
means of deceit (dolo) but also by means
of fault (culpa).
There is deceit when the act is
performed with deliberate intent and
there is fault when the wrongful act
results from imprudence, negligence,
lack of foresight, or lack of skill.

Discussion:
 Felonies are acts and omissions
punishable by law. (Art. 3, par.1).
They are committed not only by
means of deceit (dolo)- that is when
the act is performed with deliberate
intent, but also by means of fault
(culpa) meaning, when the
wrongful act results from
imprudence, negligence, lack of
foresight, or lack of skill. (Art. 3,
pars. 2 and 3)
 Felonies take the form of a positive
act- like killing a person- Homicide
or Murder, or taking unlawfully
personal property- Theft or
Robbery, or an omission or failure
to perform an act, like failure to
issue a receipt of a public officer
entrusted with collection of taxes
(Illegal Exaction) or failure to
deliver within the prescribed time a
person arrested (Delay in the
Delivery of Detained Person). In
felony by omission however, there
must be a law requiring the doing or
the performance of an act. Thus,

5
 mere passive presence at the scene
of a crime, mere silence and failure
to give the alarm, without evidence
of agreement or conspiracy is not
punishable. Where therefore R,
about a meter away from M, her
live-in partner, did not do anything
despite M’s threat that he would
burn the house which he actually
put on fire, she can not be held
criminally liable with M, there
being no proof of conspiracy
between them. (People vs. Silvestre
& Atienza)

CLASSIFICATION OF FELONIES

A. According to manner or mode of

execution (Art. 3)
1. Intentional Felonies- committed
by means of deceit or malice
Example: Murder, Estafa
2. Culpable Felonies- where the
wrongful acts result from
imprudence, negligence, lack of
foresight or lack of skill
Example: Homicide thru
Reckless Imprudence or
Reckless Imprudence resulting
to Homicide

B. According to stage of execution

(Art. 6)
1. Consummated- when all the
elements necessary for its
execution and accomplishment
are present
2. Frustrated- when the offender
performs all the acts of
execution which would produce
the felony as a consequence but
which nevertheless do not
produce it by reason of causes
independent of the will of
perpetrator
3. Attempted- when the offender
commences the commission of
a felony directly by overt acts,
and does not perform all the
acts of execution which should
produce the felony by reason of
some cause or accident other

6
 than his own spontaneous
desistance.

C. According to gravity (Art. 9)

1. Grave felonies- those to which
the law attaches the capital
punishment or penalties which
in any of their periods are
afflictive in accordance with
Art. 25 of the Revised Penal
Code

Example: Rape, Parricide

2. Less Grave Felonies- those

which the law punishes with
penalties which in their
maximum period are
correctional.

Example: Attempted Homicide,

Illegal Discharge of Firearm

3. Light felonies- those infractions

of law for the commission of
which the penalty of arresto
menor or a fine not exceeding
two hundred (P200.00) pesos,
or both, is provided.

Example: Slight Physical

Injuries, Alarm and Scandal
under Article 155

MALA IN SE AND MALA

PROHIBITA, DISTINGUISHED

 Mala in se are crimes which are

wrong from their nature, such as
murder, theft, rape, etc., while those
that are mala prohibita are wrong,
merely because they are prohibited
by statute, like Illegal Possession of
Firearm or violation of the Omnibus
Election Law.
 Crimes mala in se are those so
serious in their effects on society as
to call for the almost unanimous
condemnation of its members,
while crimes mala prohibita are
violations of mere rules of

7
 convenience designed to secure a
more orderly regulation of the
affairs of society.

Art. 4. Criminal liability. — Criminal

liability shall be incurred:
1. By any person committing a felony
(delito) although the wrongful act done
be different from that which he
intended.
2. By any person performing an act
which would be an offense against
persons or property, were it not for the
inherent impossibility of its
accomplishment or an account of the
employment of inadequate or ineffectual
means.

Discussion:
INCURRENCE OF CRIMINAL
LIABILITY
Criminal liability shall be incurred:
1. By any person committing a felony
(delito) although the wrongful act
done be different from that which
he intended, and
2. By any person performing an act
which would be an offense against
persons or property, were it not for
the inherent impossibility of its
accomplishment or on account of
the employment of inadequate or
ineffectual means. (Art. 4)

Three (3) Scenarios Under Paragraph 1 of

Article 4
A. Error in personae (mistake in the
identity of the victim)
-Two (2) peace officers were
ordered to arrest Balagtas, an
escaped notorious convict and
proceeding to the latter’s house,
saw a man sleeping with his back
towards the door and fired at him
but the man turned out to be
Serapio Tecson, the Supreme Court
ruled that they are guilty of murder.
(People vs. Oanis, et.al.)

When they fired on the sleeping

man without making any inquiry
and believing him to be the

8
 notorious escapee, the peace
officers were committing a felony.
Their wrongful intent was to hit or
kill Balagtas but the wrongful act
that was done was the killing of
Serapio Tecson.

B. Aberratio ictus (mistake in the

blow)- Thus, if X, intending to kill
Y, fired at the latter but the shot hit
Y only superficially and killed Z,
his own father, he (X) is criminally
liable for Attempted Homicide with
Parricide. When X shot Y, he was
perpetrating a felony with the
wrongful intent to kill Y. The
wrongful act committed was the
killing of his own father which he
never intended.

C. Praeter intentionem (injurious result

is greater than that intended)- Thus,
if A slapped his wife who fell on
the ground, her head hitting a hard
pavement rendering her
unconscious and thereafter died, A
is liable for Parricide. When he
slapped his wife, A was committing
a felony. His wrongful intent is only
to cause injury but the wrongful act
done was greater- the killing of the
spouse.

The wrong done, however, must be

the direct and natural consequence
of the felonious act. Stated
otherwise, the felony committed
must be the proximate cause of the
resulting injury. Proximate cause
has been defined as “that cause,
which, in natural and continuous
sequence, unbroken by any efficient
intervening cause, produces the
injury, and without which the result
would not have occurred”. (Vda. De
Batacan, et. Al. vs. Medina)

In Bringas vs. People, et. Al., 125 SCRA

687, where the conductor shouted
“Lusacan, Lusacan” knowing that the train
would reach the Lucasan Station full three
(3) minutes more and deceased Martina

9
Bool, a passenger, walked towards the left
front door facing the direction of Tiaong,
Quezon carrying a child with one hand and
holding her baggage with another, and
when the train that slowed down suddenly
picked up speed causing Martina Bool and
the three (3) year old she was carrying to
fall from the door, causing their deaths, the
Supreme Court said:

“The proximate cause of the death of

the victims was the premature and
erroneous announcement of the
conductor. This announcement
prompted the two (2) victims to stand
and proceed to the nearest exit.
Without said announcement, the
victims would have been safely
seated in their respective seats when
the train jerked as it picked up speed.
The connection between the
premature and erroneous
announcement of the accused and the
deaths of the victims is direct and
natural, unbroken by any intervening
efficient causes.”

Even if other causes cooperated in

producing the fatal result as long as the
wound inflicted is dangerous, that is,
calculated to destroy or endanger life, the
actor is liable. This is true even though the
immediate cause of death was erroneous or
unskilful medical or surgical treatment,
refusal of the victim to submit to surgical
operation, or that the deceased was
suffering from tuberculosis, heart disease
or other internal malady or that the
resulting injury was aggravated by
infection. (U.S. vs. Marasigan, 27 Phil.
504)

There must however be no efficient

intervening cause. In U.S. vs. Valdez, it
was ruled that if a person against whom a
criminal assault is directed, reasonably
believes himself to be in danger of death or
great bodily harm and in order to escape,
jumps into the water, impelled by the
instinct of self-preservation, the assailant is
responsible for Homicide- the death
resulting from drowning owing to his

10
possible inability to swim or the strength of
the current. The inability to swim and the
strong current can be considered
intervening causes but not efficient ones
since they are not acts or facts absolutely
foreign from the criminal act. On the other
hand, in People vs. Rockwell, 39 Mich.
503), an American case, the assailant was
not held responsible for the death of a
person whom he knocked down with his
fist but who was jumped on by a nearby
horse killing him, because the act of the
horse constitutes an efficient intervening
cause.

Art. 5. Duty of the court in connection

with acts which should be repressed but
which are not covered by the law, and in
cases of excessive penalties. — Whenever
a court has knowledge of any act which
it may deem proper to repress and which
is not punishable by law, it shall render
the proper decision, and shall report to
the Chief Executive, through the
Department of Justice, the reasons
which induce the court to believe that
said act should be made the subject of
legislation.

In the same way, the court shall submit

to the Chief Executive, through the
Department of Justice, such statement as
may be deemed proper, without
suspending the execution of the sentence,
when a strict enforcement of the
provisions of this Code would result in
the imposition of a clearly excessive
penalty, taking into consideration the
degree of malice and the injury caused
by the offense.

Discussion:
Is there a Common Law Crime in the
Philippines?

No, as par. 1 of Art. 5, RPC provides that

whenever a court has knowledge of any act
which it may deem proper to repress and
which is not punishable by law, it shall
render the proper decision, that is, dismiss
the case, and shall report to the Chief

11
Executive through the Department of
Justice, the reasons which induced the
court to believe that said act should be
made the subject of penal legislation.

B.P. Blg. 22 is a product of this article,

considering the difficulty of securing a
conviction for Estafa committed by issuing
a postdated check under Art. 315, par. 2[d]
since the defense of having been issued in
payment of a pre-existing obligation has
always come as a ready-made defense.
Under this law, even if the dishonoured
check was issued in payment of a pre-
existing obligation, and the drawer or
maker commits no deceit, he is criminally
liable.

DUTY OF COURT WHEN PENALTY

IS EXCESSIVE

The court shall submit to the Chief

Executive through the Department of
Justice, such statement as may be deemed
proper, without suspending the execution
of the sentence, when a strict enforcement
of the provisions of this Code would result
in the imposition of a clearly excessive
penalty, taking into consideration the
degree of malice and the injury caused by
the offense.

A daughter who killed her father while he

was sleeping because the latter had raped
her, resulting in her pregnancy, should be
punished with death by the court since
Parricide is punishable by reclusion
perpetua to death, and there is an
aggravating circumstance of treachery. The
ordinary mitigating circumstance of
vindication of a grave offense, or passion
or obfuscation will not affect the imposable
penalty as the same is an indivisible
penalty. (Art. 63) However, the judge may
write the President of the Philippines for
the granting of Executive Clemency to the
poor daughter on account of the
circumstances of the case.

In People vs. Veneracion, 249 SCRA 244,

it was ruled:

12
“We are aware of the trial judge’s
misgivings in imposing the death sentence
because of his religious convictions. While
this Court sympathizes with his
predicament, it is its bounden duty to
emphasize that a court of law is no place
for a protracted debate on the morality or
propriety of the sentence, where the law
itself provides for the sentence of death as a
penalty in specific and well-defined
instances. The discomfort faced by those
forced by law to impose the death penalty
is an ancient one but it is a matter upon
which judges have no choice.”

Art. 6. Consummated, frustrated, and

attempted felonies. — Consummated
felonies as well as those which are
frustrated and attempted, are
punishable.

A felony is consummated when all the

elements necessary for its execution and
accomplishment are present; and it is
frustrated when the offender performs
all the acts of execution which would
produce the felony as a consequence but
which, nevertheless, do not produce it by
reason of causes independent of the will
of the perpetrator.

There is an attempt when the offender

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

Discussion:
STAGES OF EXECUTION

Felonies could be attempted, frustrated or

consummated. It is consummated when all
the elements necessary for its execution
and accomplishment are present. Thus, if
A, intending to kill B, shoots the latter to
death, the crime is consummated Homicide
or Murder, as the case may be.

A felony is frustrated when the offender

13
performs all the acts of execution which
would produce the felony as a consequence
but which nevertheless do not produce it by
reason of causes independent of the will of
the perpetrator. In the example above, if A
hit B on a vital portion of the body which
injury could cause the death of B but
because of timely medical attention B did
not die, this is a case of Frustrated
Homicide or Frustrated Murder.

There is an attempt when the offender

commences the commission of a felony
directly by overt acts, and does not perform
all the acts of execution which should
produce the felony by reason of some cause
or accident other than his own spontaneous
desistance. So, if in the above-cited
example, A shot B but missed or hit B only
on a superficial part of his body which
would not cause B’s death, A is liable only
for Attempted Homicide or Attempted
Murder. In the same vein, if A poked a gun
at B and squeezed the trigger but it jammed
and no bullet was fired, the attempted stage
has been reached.

HOW TO PROPERLY DETERMINE

THE STAGE OF EXECUTION

In determining whether the felony is

attempted, frustrated or consummated, it is
important to consider (1) the nature of the
crime; (2) the elements constituting the
offense; and (3) the manner of committing
the same.

Thus, considering the nature of the crime of

Arson when a building is set on fire, it is
not necessary that it should be entirely
consumed in order to constitute the
consummated stage, nor is it affected by
the prompt extinction of the fire. (U.S. vs.
Po Chengco, 23 Phil. 487)

With respect to Theft, the same is

consummated once the offender takes or
gets hold of the material possession of the
property with intent to gain. It is not
necessary that he able to carry it away.
Thus, the accused who abstracted a leather

14
belt from a Japanese tourist and placed it in
the drawer of his desk, he being an
inspector of the Bureau of Customs, is
guilty of Consummated Theft (U.S. vs.
Adiao, 38 Phil. 754). So also, where the
accused, after untying a carabao from a tree
near the offended party’s house, was
apprehended after pulling the carabao away
by about two (2) or three (3) meters, the
crime is Consummated Qualified Theft.

This is to be distinguished from Estafa

where damage to the offended party is one
of the elements to consummate it. In U.S.
vs. Dominguez, 41 Phil. 408, the accused, a
salesman was held liable only for
Frustrated Estafa even if the proceeds of
the sale which he failed to turn over to the
cashier was found out to be in his pocket.
There was no damage yet to the owner of
the store because of the timely discovery.

In Robbery with Force Upon Things, where

the accused had entered the building or
house, and had removed the property he
intended to steal but was apprehended
before he could get out, the crime is
Frustrated Robbery. (People vs. Jose Del
Rosario, C.A. 46 O.G. 332). If he was
caught in the act of removing the property,
the crime would be Attempted Robbery. If
he was able to bring the property out of the
house or building, he would be guilty of
Consummated Robbery.

Anent the manner of committing crime,

there are offenses which are consummated
in one instant and the act cannot be split
into parts to be categorized as attempted or
frustrated like Slander or Libel. They are
called Formal Crimes.

There are also crimes which are

consummated by mere attempt, proposal or
overt act. Thus, the crime of Flight to
Enemy’s Country (Art. 121) is
consummated by mere attempt. In Abuses
Against Chastity (Art. 245), mere
solicitation or proposal consummates the
offense. So also, Art. 185 (Machinations in
Public Auctions) which punishes any
person who shall solicit any gift or promise

15
as a consideration for refraining from
taking part in any public auction.

In material crimes like Homicide, Rape,

Murder, etc., there are three (3) stages of
execution. Thus, if A would stab or shoot
B, missing him or injuring him only
superficially, the crime is Attempted
Homicide or Murder; but if he hit B and
inflicted injuries which otherwise would
have been fatal were it not for timely
medical attention, it is Frustrated; if B dies,
the case is Consummated Homicide or
Murder.

In the crime of rape, the accused who

placed himself on top of a woman, raising
her skirt and unbuttoning his pants, the
endeavour to have sex with her very
apparent, is guilty of Attempted Rape.

Note: If the effort to have sex is not clear,

the crime is only Acts of Lasciviousness

On the other hand, entry on the labia or lips

of the female organ by the penis, even
without rupture of the hymen or laceration
of the vagina, consummates the crime.
(People vs. Tayabas, 62 Phil. 559; People
vs. Royeras, 56 SCRA 666; People vs.
Amores, 58 SCRA 505)

This brings us to the question of Frustrated

Rape. In People vs. Orita, 184 SCRA 105,
the Supreme Court said:

Clearly, in the crime of rape, from the

moment the offender has carnal
knowledge of his victim, he actually
attains his purpose and, from that
moment all the essential elements of
the offense have been accomplished
(xxx) the felony is consummated.
(xxx) Any penetration of the female
organ by the male organ is sufficient.
(xxx) Necessarily, rape is attempted if
there is no penetration of the female
organ because not all acts of
execution was performed. The
offender merely commenced the
commission of a felony directly by
overt acts. Taking into account the

16
 nature, elements and manner of
execution of the crime of rape and
jurisprudence on the matter, it is
hardly conceivable how the frustrated
stage in rape can ever be committed.

The court continued that the case of People

vs. Erina, 50 Phil. 998, where the accused
was found guilty of Frustrated Rape,
appears to be a “stray” decision in as much
as it has not been reiterated in their
subsequent decisions, and that the
particular provision on Frustrated Rape in
Art. 335 as amended by R.A. No. 2632 and
R.A. No. 4111 is a dead provision
prompted probably by the Erina case.
(NOTE: R.A. No. 7659, Sec. 11 also
contains the provision that when the Rape
is attempted or frustrated and a Homicide is
committed by reason or on the occasion
thereof, the penalty shall be reclusion
perpetua to death).

Art. 7. When light felonies are

punishable. — Light felonies are
punishable only when they have been
consummated, with the exception of
those committed against person or
property.

Discussion:
LIGHT FELONIES

Light felonies are punishable only when

they have been consummated, with the
exception of those committed against
persons or property. Thus, a person who,
within any town or public place, attempts
to fire or to discharge his gun is not
criminally liable even if his acts would fall
under Art. 155 punishing Alarms and
Scandals in its attempted stage as this light
felony is a crime against public order.

Likewise, in light felonies, only the

principals and accomplices are liable (Art.
16) so that a policeman who assists in the
escape of a person who slightly injured
another (Slight Physical Injuries) is not
liable. (NOTE: See P.D. No. 1829
however)

17
Art. 8. Conspiracy and proposal to
commit felony. — Conspiracy and
proposal to commit felony are
punishable only in the cases in which the
law specially provides a penalty therefor.

A conspiracy exists when two or more

persons come to an agreement
concerning the commission of a felony
and decide to commit it.

There is proposal when the person who

has decided to commit a felony proposes
its execution to some other person or
persons.

Discussion:

Conspiracy and Proposal to commit felony

are punishable only in the cases in which
the law specially provides a penalty
therefor.

Conspiracy to commit a felony as well as

Proposal to commit a felony are, generally
speaking, not crimes. As such, they are not
punishable. Thus, although conspiracy to
murder a person is apparent, the
conspirators cannot be held criminally
liable because there is no law punishing
Conspiracy to Commit Murder.

If what was done however was Conspiracy

to Commit Rebellion, then the conspirators
are liable because there is a law that
punishes Conspiracy to Commit Rebellion
(Art. 136). The same is true with Proposal
to commit a felony. Unless there is a law
that punishes Proposal to commit a crime,
the proponents are not liable.

Art. 115 punishes Conspiracy and Proposal

to Commit Treason, while Sec. 5 of R.A.
No. 6989 penalizes Conspiracy and
Proposal to Commit Coup d’etat. On the
other hand, Conspiracy to Commit Sedition
(not proposal) is punishable under Art. 141,
while Sec. 8 of P.D. No. 1613 punishes
Conspiracy (not Proposal) to Commit
Arson.

A conspiracy exists when two or more

18
persons come to an agreement concerning
the commission of a felony and decide to
commit it. It could be evidenced by a
written agreement among the conspirators
or by their verbal covenant, or it could be
inferred from the conduct of the accused
before, during and after the commission of
the crime. (People vs. Manuel, 234 SCRA
532)
There is proposal when the person who has
decided to commit a felony proposes its
execution to some other person or persons.
To constitute proposal, in law, the
proponent himself must be determined to
commit the crime so that if he only aired
his grievances against the government and
made suggestions on how to fight the
authorities, he cannot be considered liable
for Proposal to Commit Rebellion.

Under Section 7 of P.D. No. 1613,

Conspiracy to commit Arson shall be
punished by prision mayor in its minimum
period. It would seem that like in Sedition
there is no crime of Proposal to Commit
Arson.

On matters of conspiracy, it is a settled rule

that it need not be proved by direct
evidence of prior agreement on the
commission of the crime as the same can
be inferred from the conduct of the accused
before, during and after the perpetration of
the offense showing that all the accused
acted in unison with each other, evincing a
common purpose or design. (People vs.
Pablo, et. al. 349 SCRA 79).

Art. 9. Grave felonies, less grave felonies

and light felonies. — Grave felonies are
those to which the law attaches the
capital punishment or penalties which in
any of their periods are afflictive, in
accordance with Art. 25 of this Code.
Less grave felonies are those which the
law punishes with penalties which in
their maximum period are correctional,
in accordance with the above-mentioned
Art.
Light felonies are those infractions of
law for the commission of which a
penalty of arresto menor or a fine not

19
exceeding 200 pesos or both; is provided.

Art. 10. Offenses not subject to the

provisions of this Code. — Offenses
which are or in the future may be
punishable under special laws are not
subject to the provisions of this Code.
This Code shall be supplementary to
such laws, unless the latter should
specially provide the contrary.

Discussion:
OFFENSES NOT SUBJECT TO THE
CODE
Special Laws

Offenses which are or in the future may be

punishable under special laws are not
subject to the provisions of this Code. This
Code shall be supplementary to such laws,
unless the latter should specially provide
the contrary.

Thus, in case of conflict between the

provisions of the Special Laws and those of
the Revised Penal Code, the former shall
prevail. The provisions of the latter
however shall be supplementary to special
laws whenever applicable. In People vs.
Simon, 234 SCA 555, citing People vs.
Macatanda, 109 SCRA 35, it was held:

“While these are special laws, the fact

that the penalties thereunder are

those provided for in the Revised

Penal Code lucidly reveals the
statutory intent to give the related
provisions on penalties for felonies
under the Code the corresponding
application to said special laws, in the
absence of any express, or implicit
proscription in these special laws.”
 
Chapter Two
JUSTIFYING CIRCUMSTANCES
AND CIRCUMSTANCES WHICH
EXEMPT FROM CRIMINAL
LIABILITY

20
There are five (5) circumstances affecting
the criminal liability of an individual. They
are justifying, exempting, mitigating,
aggravating, and alternative circumstances.

Art. 11. Justifying circumstances. — The

following do not incur any criminal
liability:
 
 1. Anyone who acts in defense of his
person or rights, provided that the
following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the
means employed to prevent or repel it.
Third. Lack of sufficient provocation on
the part of the person defending himself.

Discussion:
SELF- DEFENSE
Anyone who acts in defense of his person
or rights incurs no criminal liability
provided that the following circumstances
concur:
a. Unlawful aggression
b. Reasonable necessity of the means
employed to prevent or repel it
c. Lack of sufficient provocation on
the part of the person defending
himself.
This includes defense of honor, defense of
home as defense of property.

Unlawful aggression on the part of the

injured or the victim is the first element of
self-defense. This is an indispensable
requisite even in incomplete self-defense
(People vs. Deopante, G.R. No, 102772,
Oct. 30, 1996). Without this requisite, we
cannot speak of complete self-defense as a
justifying circumstance, or incomplete self-
defense as a mitigating circumstance.

Unlawful aggression means an assault or

attack, or a threat in an imminent and
immediate manner which places the
defendant’s life in actual peril. (Philippine
Law Dictionary by Moreno, 3rd Ed., 1980)
There must be an actual assault or a threat
but in case of the latter, it must be
imminent and positively strong to palpably
show the wrongful intent to cause injury.

21
Mere intimidating attitude is not sufficient.
Thus, barging on the door of the accused
with shouts of threats to kill cannot be
considered Unlawful Aggression. (People
vs. Trsison, G.R. No. 106345-46, Sept. 16,
1996) Likewise, if the accused agrees to
fight, Unlawful Aggression is wanting
because by accepting the challenge and
immediately approaching the victim, the
accused places himself in an unlawful
status and himself becomes an unlawful
aggressor, as aggression as an incident of
the fight is bound to arise. (People vs.
Galas, G.R. No, 114007, Sept. 24, 1996)
To give rise to self-defense, the aggression
must not be a lawful one like the attack of a
husband against a paramour of his wife
whom he surprised in an uncompromising
situation, or a chief of police who threw
stones at the accused who was running
away to elude arrest for a crime committed
in his presence. Their aggression was not
considered unlawful.

Unlawful aggression contemplates an

actual, sudden and unexpected attack or
imminent danger thereof, and not merely a
threatening or intimidating attitude but
when its author does not persist anymore in
his purpose or when he discontinues his
attitude to the extent that the object of his
attack is no longer in peril it ceases to be an
unlawful aggression and does not warrant
self-defense. (People vs. Geneblazo, 361
SCRA 573)

The second element is Reasonable

Necessity of the Means Employed to
prevent or repel it. There must be a
reasonable necessity of the course of action
taken, and reasonable necessity of the
means used. In People vs. Jaurigue, 76
Phil. 174, while it was ruled that when the
deceased place his hand on the upper thigh
of the lady accused, there was unlawful
aggression but when the latter immediately
stabbed him with a knife killing him, there
was no reasonable necessity of her course
of action since in the chapel where the
killing took place, there were many people
including her father, it was well lighted and
there is no possibility of her being raped.

22
Consequently, she was convicted.

When the deceased laid down his gun,

unlawful aggression had already ceased
and it was no longer necessary for accused-
appellant to have fired successfully the way
he did at the victim. (People vs. Rabanal,
387 SCRA 685)

The means employed by the person making

a defense must be rationally necessary to
prevent or repel an unlawful aggression.
What the law requires is a rational
equivalence, in the consideration of which
will enter as principal factors the
emergency, the imminent danger to which
the person attacked is exposed, and the
instinct more than the reason that moves or
impels the defense.

On the other hand, whether the means

employed is reasonable or not depends
upon the nature and quality of the weapon
used by the aggressor, his physical
condition, character and size, as well as of
the person defending and the place and
occasion of the assault.

Self-defense and accidental shooting

cannot both be raised by the accused as a
defense. If accused is acting in self-
defense, then he could only have
deliberately used the gun to repel the
alleged aggression. On the other hand, if
the shooting was accidental, then it was
immaterial whether the accused employed
reasonable means to repel the alleged
aggression. (People vs. Florague, 360
SCRA 587)

The third element- Lack of Sufficient

Provocation on the part of the person
defending himself- pictures a situation
where there was total lack of provocation
on the part of the accused as when he was
attacked without any reason at all, or when
the accused gave provocation but is not
sufficient for the offended party to assault
him, or where provocation is sufficient but
is not immediate to the act (U.S. vs. Laurel,
22 Phil. 252) or where the sufficient
provocation was given by the companion

23
of the accused of which the latter had no
part.

2. Any one who acts in defense of the

person or rights of his spouse,
ascendants, descendants, or legitimate,
natural or adopted brothers or sisters, or
his relatives by affinity in the same
degrees and those consanguinity within
the fourth civil degree, provided that the
first and second requisites prescribed in
the next preceding circumstance are
present, and the further requisite, in
case the provocation was given by the
person attacked, that the one making
defense had no part therein.

Discussion:
DEFENSE OF RELATIVES
The law speaks only of spouse, ascendants,
meaning parents, grandparents, great
grandparents, etc., descendants, meaning
children, grandchildren, great
grandchildren, etc., brothers and sisters,
relatives by affinity in the same degrees,
that is, parents-in-law, children-in-law, and
brothers or sisters-in-law as relatives.
Outside of these people, the persons are
considered, in criminal law, as strangers.

There are three (3) requisites- first is

unlawful aggression, second is reasonable
necessity of the means employed to prevent
or repel it, and third is that the relative
being defended gave no provocation. Anent
the third requisite however, the law gives a
leeway- that is, even if the relative being
defended gave the provocation, if the
relative making the defense had no part
therein, he can successfully invoke defense
of relative.

3. Anyone who acts in defense of the

person or rights of a stranger, provided
that the first and second requisites
mentioned in the first circumstance of
this Art. are present and that the person
defending be not induced by revenge,
resentment, or other evil motive.

Discussion:
DEFENSE OF STRANGER

24
Outside of himself, and those relatives
mentioned in Art. 11, par. 2, any person
who acts in defense of the person or rights
of another can legitimately claim the
defense of stranger. The first two (2)
requisites however, that is, unlawful
aggression and reasonable necessity of the
means employed to prevent or repel it,
must be present. The law adds another
requisite, which is, that the person
defending be not induced by revenge,
resentment or other evil motive.

Thus, one who, seeing his seventy-eight

(78) year old neighbour held down on the
ground by a strong and robust young man
and in serious danger of being throttled,
furnished the person assaulted with a gaff,
as he himself is also old and may not be
able to cope with the assailant, with which
his neighbour used to inflict mortal wound
on the assailant is entitled to the claim of
defense of strangers. (U.S. vs.
Subingsubing, 31 Phil. 376)

4. Any person who, in order to avoid an

evil or injury, does not act which causes
damage to another, provided that the
following requisites are present;
First. That the evil sought to be avoided
actually exists;
Second. That the injury feared be
greater than that done to avoid it;
Third. That there be no other practical
and less harmful means of
preventing it.

Discussion:
AVOIDANCE OF GREATER EVIL OR
INJURY

The fourth justifying circumstance speaks

of a person who, in order to avoid an evil
or injury, does an act which causes damage
to another. The following however must be
present: first, that the evil sought to be
avoided actually exists, second, that the
injury feared be greater than that done to
avoid it, and third, that there be no other
practical and less harmful means of
preventing it.

25
The doctor who had to kill a foetus to save
the mother where both could not be saved,
and he is running out of time, may invoke
this defense. This is different however from
Euthanasia- the so-called mercy killing
which is not justified in our jurisdiction. A
captain of a ship caught by storm and huge
waves in his journey, who ordered the
jettison of cargoes against the will of the
owners to prevent the ship from sinking
and save the passengers, can shield
criminal liability behind this provision.

5. Any person who acts in the fulfilment

of a duty or in the lawful exercise of a
right or office.

Discussion:
FULFILLMENT OF DUTY OR
EXERCISE OF RIGHT OR OFFICE

The fifth justifying circumstance provides

that no criminal liability shall be incurred
by any person who acts in the fulfilment of
a duty or in the lawful exercise of a right or
office.

Thus, a policeman who killed an escaping

prisoner after making the warning shot and
shouting to him not to continue with his
escape, and who prior to that even attacked
him with a spear, acted in the lawful
fulfilment of duty.

A person incurs no criminal liability when

he acts in the fulfilment of a duty or in the
lawful exercise of a right or office. But we
must stress there are two (2) requisites for
this justifying circumstance: (a) that the
offender acted in the performance of a duty
or in the lawful exercise of a right, and (b)
that the injury or offense be the necessary
consequence of the due performance of
such right or office. (People vs. Belbes,
334 SCRA 161)

So also if A hit B with his fist inside a

running passenger jeep because B was
snatching his watch, and as a consequence
B fell from the jeep, his head hitting the
hard pavement causing his death, A acted

26
in the lawful exercise of a right. And the
executioner of convicts sentenced to die,
who would make the lethal injection in the
Bureau of Corrections on the day and time
scheduled by the Court, does so in the
lawful exercise of an office.

6. Any person who acts in obedience to

an order issued by a superior for some
lawful purpose.

Discussion:
OBEDIENCE TO AN ORDER OF A
SUPERIOR

It is also a justified act if a person acts in

obedience to an order issued by a superior
for some lawful purpose.

This justifying circumstance needs an order

issued by a superior officer of the accused
which was for a lawful purpose and the
latter obeyed the order. Where the order of
arrest was issued by his superior for the
purpose of delivering the person’s subject
of the order to the commanding officer who
made the request that they be apprehended
and arrested for a crime they committed but
because they resisted arrest, the accused
killed them, this justifying circumstance is
applicable.

EXEMPTING CIRCUMSTANCES

Art. 12 enumerates person who are

exempted from criminal liability. Unlike in
justifying circumstances, here there was a
crime committed, there is a criminal but for
reasons of public policy, no penal liability
shall be inflicted on him.

Art. 12. Circumstances which exempt

from criminal liability. — the following
are exempt from criminal liability:
1. An imbecile or an insane person,
unless the latter has acted during a lucid
interval.
When the imbecile or an insane person
has committed an act which the law
defines as a felony (delito), the court

27
shall order his confinement in one of the
hospitals or asylums established for
persons thus afflicted, which he shall not
be permitted to leave without first
obtaining the permission of the same
court.

Discussion:
In the eyes of the law, insanity exists when
there is a complete deprivation of
intelligence in committing the act. Mere
abnormality of the mental faculties will not
exclude imputability. The accused must be
“so insane as to be incapable of
entertaining a criminal intent”. He must be
deprived of reason and act without the least
discernment because there is a complete
absence of the power to discern or a total
deprivation of the freedom of the will.

Since the presumption is always in favor of

sanity, he who invokes insanity as an
exempting circumstance must prove it by
clear and positive evidence. And the
evidence on this point must refer to the
time preceding the act under prosecution or
to the very moment of its execution. (See
People vs. Estrada, 333 SCRA 669; also
People vs. Valledor, 383 SCRA 653)

An imbecile is a person marked by mental

deficiency while an insane person is one
who has unsound mind or who suffers from
mental disorder. An insane person may
have suffered from mental disorder. An
insane person may have lucid intervals but
an imbecile has none. (People vs. Ambal,
100 SCRA 325, citing 1 Viada, Codigo
Penal, 4th Ed.)

Imbecility is defined as feeble-mindedness

or a mental condition approaching that of
one who is insane. It is analogous to
childishness and dotage. An imbecile
within the meaning of Article 12 is one
completely deprived of reason or
discernment and freedom of will at the time
of committing the crime. While advanced
in age, he has a mental development of
children between two (2) and seven (7)
years of age. (People vs. Nunez, G.R. No.
412429-30, July 23, 1947)

28
In People vs. Dungo, 199 SCRA 860, it was
held that one who suffers from insanity at
the time of the commission of the offense
cannot in a legal sense entertain a criminal
intent and cannot be held criminally
responsible for his acts. In People vs.
Formigones, 87 Phil. 658, the ruling was
that, in order that a person could be
regarded as an imbecile within the meaning
of Art. 12 of the RPC so as to be exempt
from criminal liability, he must be deprived
completely of reason or discernment and
freedom of the will at the time of
committing the crime.

Any deprivation therefore of reason or

discernment at the time of the trial is not an
exempting circumstance.

2. A person under nine years of age.

3. A person over nine years of age and
under fifteen, unless he has acted with
discernment, in which case, such minor
shall be proceeded against in accordance
with the provisions of Art. 80 of this
Code.
When such minor is adjudged to be
criminally irresponsible, the court, in
conformably with the provisions of this
and the preceding paragraph, shall
commit him to the care and custody of
his family who shall be charged with his
surveillance and education otherwise, he
shall be committed to the care of some
institution or person mentioned in said
Art. 80.

Discussion:
Amended by Juvenile Justice and Welfare
Act, R.A. 9344
 15 years of age and under- exempt,
they will be subject to intervention
 Over 15 years of age and under 18-
exempt, unless acted with
discernment
-those who acted with discernment
are entitled to privilege mitigating
circumstance of minority, they will
undergo diversion programs
 Exemption does not include
exemption from civil liability

29
  The reckoning point is the age of
the child when the offense was
allegedly committed

What if the act was done while still a minor

but the promulgation of the sentence was
after he reached 21?
 He will be sent to an agricultural
camp. The promotion of the welfare
of a child in conflict with the law
should extend even to one who has
exceeded the age limit of twenty-
one years, so long as he/she
committed the crime when he/she
was still a child. The offender shall
be entitled to the right to
restoration, rehabilitation and
reintegration. The age of the child
in conflict with the law at the time
of the promulgation of the judgment
of conviction is not material. What
matters is that the offender
committed the offense when he/she
was still of tender age. (People vs.
Jacinto)

Two Presumptions Under R.A. No. 9344

1. Presumption of minority
2. Presumption of no discernment

What is discernment?
 The mental capacity to understand
the difference between right and
wrong.

4. Any person who, while performing a

lawful act with due care, causes an
injury by mere accident without fault or
intention of causing it.

Discussion:
So, one driving his car duly licensed to do
so, in the proper lane and within the limits
prescribed by law, who hits a boy who
suddenly darted into the street is exempt
from criminal liability due to accident.

Problem: A armed with a .38 caliber and B,

who has no weapon, robbed a store; but in
the course thereof, were seen by P, a
policeman who was armed with a .45
caliber gun, and when he demanded for the

30
surrender of A and B, A shot him but
missed, and so P repelled the attack. In the
exchange of shots, A was killed, together
with B, and C, the owner of the store. The
three were killed by the bullets fired from a
.45 caliber. In such case, P is not liable for
the death of A due to self- defense as all the
three (3) elements are present. He is also
not liable for the death of B, not because of
self- defense because the latter being
weaponless can not commit unlawful
aggression, but because of performance of
duty. For the death of C, the store owner, P,
is also not criminally liable obviously not
because of self- defense nor of fulfilment
of duty but because of accident provided
for in par.1 of Art. 12.

5. Any person who act under the

compulsion of irresistible force.

Discussion:
IRRESISTIBLE FORCE
Elements: 1. Force must be physical, come
from an outside force and the accused must
act not only without his will but even
against his will
2. The accused was reduced to a mere
instrument, no more freedom
3. Duress, force, fear or intimidation must
be present, imminent and impending, and
of such a nature as to induce a well-
grounded fear of death or serious bodily
injury.

Thus, a person who was compelled to bury

the body of one who was murdered by the
killers, striking him with the butts of their
guns, threatening to kill him too, is not
criminally liable as an accessory.

6. Any person who acts under the

impulse of an uncontrollable fear of an
equal or greater injury.

Discussion:
Uncontrollable fear of an equal or greater
injury
Elements: 1. Fear of an evil greater than or
at least equal to that which the accused was
required to commit.
2. Evil was of such gravity and imminence

31
that the ordinary man would have
succumbed to it.

If A with a revolver in his hand threw a

knife at B, and ordered him to kill C, a
person sleeping nearby otherwise he will
shoot B, the latter can ask exemption from
criminal liability if he stabbed C to death.

7. Any person who fails to perform an

act required by law, when prevented by
some lawful or insuperable cause.

Discussion:

A policeman who arrested a man who had

just killed another in his (policeman’s)
presence, at 6:00 p.m. of a Saturday in a
small town in the province, is not liable
under Article 125 of the RPC when he filed
the criminal complaint only in the morning
of the following Monday (more than thirty
six (36) hours as required by the said
Article) since there was no court where to
file the complaint. He was prevented by a
lawful or insuperable cause to comply with
the requirement of the law.

ABSOLUTORY CAUSES

Absolutory causes are those where the

actors are granted freedom from charge or
immunity from burden for reasons of
public policy and sentiment even if their
acts constitute a crime.

They are:
1. Accessories with respect to spouse,
ascendants, descendants, brothers
and sisters or relatives by affinity
within the same degrees except
those falling under par. 1 of Art. 19.
(Art. 20, RPC)
2. Spouse or parents who inflicted
Less Serious or Slight Physical
Injuries on his/ her spouse or their
daughters living with them, whom
they surprised in the act of sexual
intercourse with another. (Art. 247,
RPC)
3. Any person who entered another’s
dwelling to prevent serious harm to

32
 himself, the occupants of the
dwelling or a third person or
rendered some service to humanity
or justice, or entered cafes, taverns,
inns and other public houses while
the same were open. (Art. 280, par.
3)
4. In case of theft, swindling or
malicious mischief committed or
caused mutually by spouses,
ascendants and descendants or
relatives by affinity in the same
line, and brothers and sisters and
brothers-in-law and sisters-in-law if
living together. (Art. 332)
5. Instigation, where the actor
otherwise innocent, was induced by
a public officer to commit the crime
such that the latter himself becomes
a principal by inducement or by
indispensable cooperation.

Chapter Three
CIRCUMSTANCES WHICH
MITIGATE CRIMINAL LIABILITY

Mitigating circumstances are those which

do not entirely free the actor from penal
responsibility but serve only to lessen or
reduce the penalty imposable. There are
two (2) classes- Ordinary Mitigating which
can be offset by aggravating circumstances
and which if present tends to reduce the
penalty by periods, and Privileged
Mitigating which cannot be offset by any
aggravating

circumstance, and which if present tends to

reduce the penalty by degrees.

Art. 13. Mitigating circumstances. —

The following are mitigating
circumstances;
1. Those mentioned in the preceding
chapter, when all the requisites
necessary to justify or to exempt from
criminal liability in the respective cases
are not attendant.

Discussion:
INCOMPLETE JUSTIFYING AND

33
INCOMPLETE EXEMPTING
CIRCUMSTANCES

 Must always have unlawful

aggression
 Without unlawful aggression, no
complete or incomplete self-defense
 Becomes a privileged mitigating
circumstance if unlawful aggression
is present with another element of
self-defense
 Only unlawful aggression is
present- ordinary mitigating
circumstance
 Unlawful aggression + another
element- privileged mitigating
circumstance

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 Art. 80.

Discussion:
Minority/ Oldies
 R.A. 9344 did not repeal Art. 68. It
merely amended it.
 If the minor is between 15-18 years
of age and acted with discernment,
he is still entitled to the privileged
mitigating circumstance under Art.
68(2)
 Minority is always a privileged
mitigating circumstance
 This is personal to the accused and
cannot be extended to another co-
accused
Example: A 16 year old and a thirty
year old killed someone. Minority
as mitigating circumstance can only
be appreciated to the 16 year old.
 What about old age?
Example: The accused was charged
with rape. He was 83 years old. Old
age is considered mitigating
circumstance.

3. That the offender had no intention to

commit so grave a wrong as that
committed.

34
Discussion:
LACK OF INTENT TO COMMIT SO
GRAVE A WRONG

Intention partakes of the nature of a mental

process, an internal act. It can be gathered
from and determined by the conduct and
external acts of the offender and the results
of the acts themselves. So, the accused who
was charged with Rape with Homicide, and
who admitted that “My only intention was
to abuse her, but when she tried to shout I
covered her mouth and choked her, and
later I found that because of that she died”,
is not entitled to this mitigating
circumstance, for he knew that the girl was
very tender in age (six (6) years old), weak
in body, helpless and defenseless and he
ought to know the natural and inevitable
result of the act of strangulation. (People
vs. Yu, 1 SCRA 199)
A husband who slaps his wife who fell
down her head hitting a hard pavement and
died as a result can avail of this mitigating
circumstance.

But this attenuating circumstance is not

applicable in case of several accused where
conspiracy was proven for in conspiracy
the act of one is the act of all. (People vs.
Bautista, 38 SCRA 184).

Praeter Intentionem
 Intent is determined by weapons,
words, conduct before, during and
after the incident

4. That sufficient provocation or threat

on the part of the offended party
immediately preceded the act.

Discussion:
SUFFICIENT PROVOCATION OR
THREAT

The sufficient provocation or threat on the

part of the victim must immediately
precede the act of the offender. A killed his
father-in-law who warned him to be careful
because he would kill him before the end of
the day, after he told said father-in-law that
he cannot live anymore with his adulterous

35
wife, the daughter of the deceased, whom
he caught in flagrante with her paramour.
He is entitled to this mitigating
circumstance. (People vs. Rivero, 242
SCRA 354) He could have interpreted this
warning as a serious threat which prompted
him to decide to eliminate his father-in-law
before he could carry out such threat.

Requisites: 1. It must be sufficient

2. It must be immediate to the
commission of the crime
3. It must originate from the offended
party

Sufficient provocation is unjust or

improper conduct/ act of the offended
party, capable of exciting, inciting or
irritating anyone. It must be adequate
enough to excite a person to commit a
wrong. (Licayo vs. People)

The provocation need not be in words, but

can also be in action. When the victim
entered the accused person’s property and
started gathering crops, this constituted
sufficient provocation. (People vs.
Arquiza)

5. That the act was committed in the

immediate vindication of a grave offense
to the one committing the felony (delito),
his spouse, ascendants, or relatives by
affinity within the same degrees.

Discussion:
IMMEDIATE VINDICATION OF A
GRAVE OFFENSE

The word “immediate” in par. 5 is not an

accurate translation of the Spanish text
which uses the term “proxima” and
somehow a lapse of time is allowed
between the grave offense and the
vindication unlike in provocation or threat
(par. 4) that should immediately precede
the act.

Thus, in People vs. Parna, 64 Phil. 331,

where it was after a few hours from the
time he was slapped by the deceased in the
presence of many people, when he killed

36
said deceased, the Supreme Court
considered this mitigating circumstance in
his favor since the influence of said offense
“by reason of its gravity and circumstances
under which it was inflicted, lasted until the
moment the crime was committed”.
However, in People vs. Pajares, 210 SCRA
237, where the brother of the accused was
mauled by the victim’s companion and the
victim himself ten (10) hours earlier, the
accused who killed the deceased was
adjudged not entitled to the benefits of this
circumstance since such interval of time
was more than sufficient to enable him to
recover his serenity.

It would seem that the rule is that, the court

must consider the lasting effect and
influence of the grave offense to the
offender when he resorted to commit the
crime to vindicate such grave offense.

 Grave offense is not the grave

offense in Art. 9. Here, it might not
even be a felony at all. It can be an
assault to one’s honor. It includes
insult.
 Test if the assault is grave, depends
on:
1. Social standing of parties
2. Time, place and occasion when
offense was committed

6. That of having acted upon an impulse

so powerful as naturally to have
produced passion or obfuscation.

Discussion:
PASSION AND OBFUSCATION

 It must arise from lawful sentiments

 Exercise of a lawful right by the
offended party cannot be a proper
source of passion/ obfuscation. As
when the offended party came to
regain his land. (People vs. Lopez)

To be considered mitigating, the same must

arise from lawful sentiments provoked by
prior unjust or improper acts of the
offended party.

37
While watching a TV show, the ballcaster
of the swivel chair on which the accused
was seated broke and got detached, and so
he called F, his stepson, to buy one but
because it took time for the latter to
awaken, accused started shouting bad
words to F who finally got up, got dressed
and went to the comfort room to brush his
teeth. This further angered the accused who
boxed him (F), and when F got out of the
house, accused followed him, and because
he could not see F at once, he shot him
when finally he saw him returning to the
house. Held: No mitigating circumstance
of passion or obfuscation as the anger of
the accused did not arise from lawful
sentiments. The delay in obeying his
request to buy the ballcaster is too trivial
matter as to fairly and justly cause such
overreaction on his part. (People vs.
Tiongco, 236 SCRA 458)

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;

Discussion:
VOLUNTARY SURRENDER
Elements: 1. Surrendered to a person in
authority or his agent
2. Surrendered before arrest is effected
3. Surrender must be voluntary
(spontaneous and unconditional)

Plea of Guilt
Elements: 1. It must be in open court.
2. It must be spontaneous and
unconditional
3. It must be done prior to the presentation
of evidence of the prosecution

Accused who went into hiding for two and

a half (2 1/2) years after killing the victim
cannot claim this mitigating circumstance
for in order that voluntary surrender may
be appreciated, it is necessary that the same
be spontaneous in such manner that it
shows the intent to surrender

38
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. Ablao, 183
SCRA 658, citing People vs. Lingatong,
G.R. No. L-34019, Jan. 29, 1990)

So also, it must be surrender of the body of

the accused to the persons in authority or
their agents. So the surrender of his gun,
not himself, by handing over the weapon
through the balustrade of the faculty room,
and the surrender being made to his brother
who was not a person in authority nor an
agent can not be considered an attenuating
circumstance. He holed in the faculty room,
in effect holding some teachers and
students as hostages, as the faculty room
was surrounded by soldiers and there was
no escape open to him. (People vs. Tac-an,
182 SCRA 601)

Voluntary surrender requires that the

offender had not been actually arrested;
that he surrendered himself to a person in
authority or to the latter’s agent; and that
the surrender was voluntary. (People vs.
Callet, 382 SCRA 43) For surrender to be
voluntary, it must be spontaneous and show
the intent of the accused to submit himself
unconditionally to the authorities either
because (1) he acknowledges his guilt or
(2) he wishes to save them the trouble and
expense incidental to his search and
capture. (People vs. Zeta, 382 SCRA 141)

SPONTANEOUS PLEA OF GUILTY

To be appreciated as an attenuating
circumstance, the plea of guilty must be
made before the prosecution presents its
evidence and it must be an unconditional
plea. (People vs. Serafica, 27 SCRA 123)
However, if it is a plea to a lesser offense-
let us say, where the charge is murder and
the offer is a plea of guilty to Homicide,
and the court allows the prosecution to
present evidence to prove the qualifying
circumstance, and it fails to establish the
aggravating circumstance that would
qualify the killing to murder, the accused is

39
entitled to this mitigating circumstance.
The forum however must be the court that
has jurisdiction over the offense.

8. That the offender is deaf and dumb,

blind or otherwise suffering some
physical defect which thus restricts his
means of action, defense, or

communications with his fellow beings.

Discussion:
ILLNESS WHICH RESTRICTS
MEANS OF ACTION
The law says that the offender is deaf and
dumb, meaning not only deaf but also
dumb, or that he is blind, meaning blind in
both eyes, but even if he is only deaf and
not dumb or dumb only but not deaf, or
blind only in one eye, he is still entitled to a
mitigating circumstance under this article
as long as his physical defects restrict his
means of action, defense or communication
with his fellowmen. The restriction
however must relate to the mode of
committing the crime. Thus, even if he is
armless or somehow limping because he
was a polio victim in his younger days, if
the charge is libel or oral defamation, his
illness does not give him the privilege to
mitigate his criminal liability for the said
crime.

9. Such illness of the offender as would

diminish the exercise of the will-power of
the offender without however depriving
him of the consciousness of his acts.

Discussion:
ILLNESS DIMINISHING WILL
POWER

 If illness deprived the offender of

his consciousness of his acts, he
will be exempt from liability.
 Illnesses considered: 1. Psychosis
2. Schizophrenia

If the illness not only diminishes the

exercise of offender’s will power but
deprives him of the consciousness of his
acts, it becomes an exempting circumstance

40
to be classified as insanity or imbecility.

Feeblemindedness of the accused who, in a

fit of jealousy, stabbed his wife, then
carried her up to the house, laid her on the
floor and then lay down beside her,
warrants the finding in his favor of this
mitigating circumstance. (People vs.
Formigones, 87 Phil. 658)

10. And, finally, any other circumstances

of a similar nature and analogous to
those above mentioned.

Discussion:
ANALOGOUS CIRCUMSTANCES

Return of the property stolen is analogous

to voluntary surrender, testifying for the
prosecution by a co-accused divulging the
truth of what really transpired is akin to
plea of guilty; esprit de corps is similar to
passion or obfuscation; over sixty (60)
years old with failing sight is analogous to
over seventy (70). (See The Revised Penal
Code by Reyes, 1993 Ed., pp. 312-314,
citing People v. Villamora, 86 Phil. 287;
People vs. Reantillo and People vs.
Navasca, 76 SCRA 72)

Chapter Four
CIRCUMSTANCE WHICH
AGGRAVATE CRIMINAL
LIABILITY

Those which if present in the commission

of the crime serve to increase the penalty
imposable, without however exceeding the
maximum period prescribed for the
offense.

Unlike in mitigating circumstances, the list

in Article 14 is exclusive. No analogous
circumstances. The aggravating
circumstances must be alleged in the
information.

Different Kinds of Aggravating

Circumstances

41
 1. Generic

Those which generally, can be

applied to all offenses like
dwelling, recidivism, in
consideration of price, reward or
promise.

2. Qualifying

Those which if attendant, alter or

change the nature of the crime
necessarily increasing the penalty,
such as by means of poison, with
aid of armed men in killing persons
or grave abuse of confidence which
makes stealing one of qualified
theft. These Circumstances
however must be alleged in the
information to make them
qualifying.

3. Special or Specific Aggravating

Those that apply only to some

particular crimes like disregard of
respect due the offended party on
account of rank, sex or age which
are applicable only to crimes
against persons or honor. Ignominy
which applies only to crimes
against chastity; cruelty which
applies only to crimes against
person.

4. Inherent

Those which necessarily

accompany or inhere in the
commission of the crime like
evident premeditation in theft or
robbery.

Where one of the aggravating

circumstances has been used as a
qualifying circumstance, the others will be
deemed as generic.
Example: Treachery qualifies homicide
into murder. Evident premeditation
becomes a generic circumstance.

R.A. 7659 added a new aggravating

42
circumstance of “organized/ syndicated
group” in Art. 62
 It’s a special aggravating
circumstance because Art.
14 (which are generally
generic) was not
correspondingly amended.
 An organized/ syndicated
crime group means a group
of 2 or more persons
collaborating, confederating
or mutually helping one
another for purposes of gain
in the commission of any
crime (not exclusive to
robbery- as long as there is
profit, like estafa,
kidnapping for ransom)
Art. 14. Aggravating circumstances. —
The following are aggravating
circumstances:

1. That advantage be taken by the

offender of his public position.

Discussion:
ABUSE OF OFFICIAL POSITION

Under Sec. 23, 1(a) of R.A. No. 7659,

when in the commission of the crime,
advantage was taken by the offender of his
public position, the penalty to be imposed
shall be in its maximum regardless of
mitigating circumstances.

It would seem that when this aggravating

circumstance is present in the commission
of heinous crimes, it cannot be offset by
any mitigating circumstance.

For this circumstance to be appreciated as

aggravating, the accused must be a public
official who used his influence, prestige
and ascendancy which his office gives him
in realizing his purpose.

If the accused could have perpetrated the

crime without occupying his position, then
there is no abuse of public position. Since
no evidence was adduced to prove that the
killing was in any way facilitated by the
public position of the accused, in fact, it

43
was not even shown whether the accused
wore his uniform or used his service
firearm, this aggravating circumstance is
not present. (People vs. Sumaoy, 263 SCRA
460)

However in People vs. Madrid, 88 Phil. 1,

this circumstance was considered against
the accused, a law officer, as he committed
the crime (Robbery with Homicide) with
the aid of a gun which he had been
authorized to carry as a peace officer, and
he succeeded in going through the check
point unmolested and unsuspected because
of his official position. Where the public
position is an element of the offense like
Bribery (Direct – Article 210, Indirect-
211, or Qualified Bribery – Sec. 4, R.A.
No. 7659), this circumstance cannot be
taken into consideration.

Test: Did the accused abuse his office in

order to commit the crime?
Public official must use the influence,
prestige and ascendancy which his office
gives him in realizing his purpose.

 There must be an intimate

connection between the offense and
the office of the accused.
 The offender’s being a public
officer does not ipso facto make it
aggravating. If the public officer
could have committed the crime
without the use of public position, it
is not aggravating.
 Using one’s service firearm in
shooting someone does not fall
under this Aggravating
Circumstance. In People vs.
Villamor, the accused used a gun
officially issued to him by virtue of
his office. The court said he could
have shot him even without a gun
from the police.
 When a policeman keeps quiet
while his other police officers were
robbing a polio guy and his sister,
the quiet policeman is guilty of
abuse of public position. He could
have prevented the others from
robbing the victim. But he didn’t.

44
 His silence made him liable.
(Fortuna vs. People)
 Does not apply if inherent in the
crime. Example: Falsification by a
public officer of a public document

2. That the crime be committed in

contempt or with insult to the public
authorities.

Discussion:

Public authorities are public officers

directly vested with jurisdiction and who
have the power to govern and execute the
laws. They are also called persons in
authority. So that if X, despite his
knowledge of the presence of the Mayor or
Governor or a Judge, who made known of
his presence to him, still continued to
assault his opponent, this circumstance
must be taken against him, If it were
however, a policeman or an NBI agent, this
aggravating circumstance cannot be
considered, as a policeman or an NBI agent
is a mere agent of a person in authority.

Elements: 1. Public authority is engaged in

the discharge of his duties
2. Not the person against whom the crime
is committed
3. The offender knows that he is a public
authority

Example: A Barangay Captain is

considered a person-in-authority. He was
playing cards, then accused shot him. Insult
to public authorities? No. Barangay
Captain was the victim, and he was not
performing his duty at that time. He was
playing tong-its. (People vs. De Mesa)

3. That the act be committed with insult

or in disregard of the respect due the
offended party on account of his rank,
age, or sex, or that it be committed in the
dwelling of the offended party, if the
latter has not given provocation.

Discussion:
INSULT OR DISREGARD OF RANK,
AGE OR SEX

45
Considering the fact that the deceased,
Silvina Cuyos, was already sixty (60) years
old at the time she was killed by the
accused who was then only twenty-three
years old, whom witnesses saw as if
wrestling with the said deceased who
sustained fatal injuries at the neck, there is
disregard of the respect due the offended
party on account of her age. (People vs.
Rubio, 257 SCRA 528)

A clerk in the Cash Section of the Civil

Service Commission who attacked the
Assistant Chief of the Personnel Division
of the said government office has
committed a crime aggravated by
disrespect due the offended party on
account of his rank. (People vs. Benito, 74
SCRA 271)

Where the accused took turns in hitting the

victim, a seventy (70) year old woman,
with pieces of wood they brought in going
to the house of the said victim, the
circumstance of disregard of the respect
due the offended party on account of her
sex and age is present. (People vs. Lapaz,
171 SCRA 539)

NOTE: While night time is absorbed in

treachery, the aggravating circumstance of
disregard of sex and age cannot be
similarly absorbed, as Treachery refers to
the manner of commission of the crime,
while the latter pertains to the relationship
of the victim with the offender.

DWELLING
It must be taken note of, that dwelling is a
building or structure exclusively used and
devoted for rest and comfort, and it
includes every dependency of the house
which forms as integral part thereof. It may
mean only the room of the bedspacer in a
house. Thus, the crime of rape against the
offended party who was renting a bedspace
in a boarding house is aggravated by
dwelling. (People vs. Daniel, 86 SCRA
511)

Dwelling includes every dependency of the

46
house that forms an integral part thereof
including staircase of the house, and much
more its terrace. (People vs. Rios, G.R. No.
132622, June 19, 2000)

In People vs. Perreras, 362 SCRA 202, it

was ruled: He who goes to another’s house
to hurt him or do wrong is more guilty than
he who offends him elsewhere. For the
circumstances of dwelling to be considered,
it is not necessary that the accused should
have actually entered the dwelling of the
victim to commit the offense- it is enough
that the victim who gave no provocation
was attacked inside his own house, as the
assailant might have devised means to
perpetrate the assault from the outside.

Where the complainant was forcibly taken

from her house, brought to a nearby
Barangay where she was raped, dwelling is
an aggravating circumstance. (People vs.
Lacanieta, 330 SCRA 519)

To consider it however, as an aggravating

circumstance, the victim must not have
given provocation. However, even if the
attacker was outside the house, and the
victim was inside his dwelling when he
was fired upon, as long as the latter had not
provoked the offender, there is dwelling as
an aggravating circumstance. So also, if the
assault was commenced inside the dwelling
and terminated outside the same, dwelling
can be considered. The victim should be
the owner, occupant or lessee of the house.
However, in People vs. Balansi, 187 SCRA
566, it was held that the victim need not be
the owner or occupant of the dwelling
where he was shot, since “the stranger, as
an invited guest, is sheltered by the same
roof and protected by the same intimacy of
life it affords. It may not be his house, but
it is, even for a brief moment, home to
him”.

While this aggravating circumstance cannot

be considered in Trespass to Dwelling or
Robbery in an Inhabited House as it is
included necessarily in these crimes (Art.
62), it can be considered in Robbery with
Homicide because this kind of Robbery can

47
be committed without the necessity of
transgressing the sanctity of the house.
(People vs. Pareja, 265 SCRA 429)

4. That the act be committed with abuse

of confidence or obvious ungratefulness.

Discussion:
ABUSE OF CONFIDENCE OR
OBVIOUS UNGRATEFULNESS

Requisites: 1. The offended had trusted the

offender
2. The offender abused such trust
3. Such abuse of confidence facilitated the
commission of the crime

Essential that the confidence is immediate

and personal such that it gives the accused
some advantage and makes it easier to
commit the crime. (People vs. Arojado)

Where the accused is the uncle of the

victim and who had taken shelter in the
house of the victim’s parents, the rape that
he committed against his niece is attended
with Abuse of Confidence and Obvious
Ungratefulness. (People vs. Cabresas, 244
SCRA 362)

5. That the crime be committed in the

palace of the Chief Executive or in his
presence, or where public authorities are
engaged in the discharge of their duties,
or in a place dedicated to religious
worship.

Discussion:

To consider the palace of the President, or

a place dedicated to religious worship, the
accused must have the intention to commit
the crime in such place so that if the
meeting of the offender and the victim was
only casual, this circumstance cannot be
considered.

In a place where authorities are engaged in

the discharge of their duties, it is necessary
that actual fulfilment of functions be going
on, so that if the Judge declared a recess,
and during such recess a crime was

48
committed in his courtroom, this
circumstance is not present. However, if it
is a place dedicated to religious worship,
any offense committed thereat even if no
ceremony is taking place, is aggravated by
this circumstance.

Only in the third circumstance (public

authorities engaged in the discharge) is
performance of function necessary.

If done in the palace of the President, in his

presence, or in a place dedicated to
religious worship, performance of function
is not necessary.

6. That the crime be committed in the

night time, or in an uninhabited place, or
by a band, whenever such circumstances
may facilitate the commission of the
offense.
Whenever more than three armed
malefactors shall have acted together in
the commission of an offense, it shall be
deemed to have been committed by a
band.

Discussion:

Night has been defined as a period of time

from sunset to sunrise. (Art. 13, Civil
Code) Viada poetically defines it as the
beginning of dusk to the end of dawn. (See
The Revised Penal Code by Reyes, p. 356).
It is not however the period or the time that
is material. It is more of the darkness or
nocturnity that enshrouds the situation.
Thus, if at 10:30 p.m. a killing occurred in
a dance party where the place was bright or
keenly illuminated, there is no night time to
speak of.
Night Time (Nocturnity) becomes an
aggravating circumstance only when:
1. Sought by the offender; 2. Taken
advantage by him to facilitate the
commission of the crime; 3. Ensured his
immunity from capture, and 4. The place
where the crime was committed was not
illuminated.

There must be evidence that night time was

sought for, or the nocturnity facilitated the

49
commission of the offense. (People vs.
Dela Cruz)

Night time is absorbed in treachery if it is

part of the treacherous means to insure
execution of the crime.

And even if it was really dark, for

nocturnity to be considered as an
aggravating circumstance, it must have
been particularly sought for by the accused,
or taken advantage of by him to facilitate
the commission of the crime or to ensure
his immunity from capture or otherwise to
facilitate his getaway. (People vs. Pareja,
265 SCRA 429)

So also if the criminal act was commenced

while the atmosphere or environment was
still bright, and terminated when it was
already dark, this aggravating circumstance
is not present. Contrariwise, if the offender
began to perpetrate the crime while it was
still dark, but finished it already at
daybreak where the place is already bright,
there is likewise no night time as an
aggravating circumstance.

In the case of Forcible Abduction with

Rape which was committed at 2:00 a.m., it
was held that the aggravating circumstance
of night time should be considered.
(People vs. Grefiel, 215 SCRA 596)

In People vs. Cabangcala, 362 SCRA 361,

it was ruled that for night time to be
appreciated as an aggravating
circumstance, the Court must be convinced
that the cover of darkness was purposely
sought for the purpose of ensuring the
consummation of the crime, or where the
accused took advantage of the blankness of
the night.

There is a band whenever more than three

(3) armed malefactors shall have acted
together in the commission of the offense.
(People vs. Landicho, 258 SCRA 1) Thus,
at least four (4) must be the number
(People vs. Polones, 230 SCRA 279) and
they must be armed although the arms need
not be limited to firearms. When the two

50
(2) groups are almost similarly armed, like
where the group of the offended party
numbered five (5) but only three (3) were
armed so that there is no band, while the
offenders were four (4) who were all armed
and therefore constituted a band, there is no
aggravating circumstance as it did not
facilitate the commission of the crime.
Likewise, if the meeting is casual, the
homicide committed by the killers
comprising a band is not aggravated.

The uninhabitedness of a place is

determined not by the disturbance of the
nearest house to the scene of the crime but
whether or not in the place of the
commission, there was reasonable
possibility of the victim receiving some
help. Considering that the killing was done
during night time and many fruit trees and
shrubs obstructed the view of neighbors
and passersby, there was no reasonable
possibility for the victim to receive any
assistance. (People vs. Desalisa, 229 SCRA
35)

7. That the crime be committed on the

occasion of a conflagration, shipwreck,
earthquake, epidemic or other calamity
or misfortune.

If the crime coincidentally took place

during the occasion of the misfortune or
calamity, this aggravating circumstance is
not present because the offender did not
take advantage of the situation. It must be
noted that the reason behind this
circumstance is found in the debased form
of criminality met in one who, in the midst
of a great calamity, instead of lending aid
to the afflicted, adds to their suffering by
taking advantage of their misfortune to
despoil them. (U.S. vs. Rodriguez, 19 Phil.
150)

8. That the crime be committed with the

aid of armed men or persons who insure
or afford impunity.

Discussion:

The law uses the words “men” and

51
“persons” – meaning in the plural form and
so at least two (2) persons are involved.

If the accused relied on the presence of

armed men, availing himself of the aid of
the latter, his liability is aggravated.
However, where it appeared that appellants
were not merely present at the scene of the
crime but were in conspiracy with the
assailant, shooting the victim and leaving
the scene together after apparently
accomplishing their purpose clearly
evincing conspiracy, this circumstance
cannot be appreciated. (People vs.
Umbrero, 196 SCRA 821)

If accused, upon assurance of policemen A

and B that they would not patrol the area so
that he could commit theft or robbery
thereat, the commission of burglary in the
said area where no routine patrolling was
done is aggravated by the aid of persons
who insure or afford impunity.

9. That the accused is a recidivist.

A recidivist is one who, at the time of his
trial for one crime, shall have been
previously convicted by final judgment
of another crime embraced in the same
title of this Code.

Discussion:

The law defines recidivist as one who, at

the time of his trial for one crime, shall
have been previously convicted by final
judgment of another crime embraced in the
same Title of the Revised Penal Code.

Where accused was convicted of Homicide

on September 15, 1983 and there being no
appeal, judgment became final on October
1, 1983 and the second conviction was
rendered on October 26, 1983 for murder,
he is a recidivist. (People vs. Lagarto, 196
SCRA 611)

If accused committed Theft on June 1,

1990 and Robbery on July 1, 1990 but after
his apprehension, the trial for the two (2)
crimes were consolidated in one hearing as
there was only one victim, and thereafter

52
the court rendered a Joint Decision finding
him guilty of both offenses, there is no
recidivism as there was no previous final
judgment of conviction. While he was
convicted of Theft committed on June 1,
1990 when the same was promulgated,
there was no prior or previous final
judgment. His conviction for theft was not
yet final. Another requisite is that the
crimes involved must be embraced in the
same title under the Revised Penal Code;
so that if the previous conviction is for
Homicide and when it was already final
there is a subsequent conviction for Rape-
recidivism exists as Rape is now a crime
against persons. (R.A. No. 8353)

10. That the offender has been

previously punished by an offense to
which the law attaches an equal or
greater penalty or for two or more
crimes to which it attaches a lighter
penalty.

Discussion:

The crimes should not be embraced in the

same title of the Code for accused will then
be classified as a recidivist. Thus, if A has
been convicted of Murder, and after grant
of parole committed Homicide, he labors
under this paragraph known as reiteracion,
but he is also suffering from recidivism
(reincidencia). In such a case, he will be
considered only as recidivist, and par. 10
will no longer apply to him.

The previous crimes for which accused

underwent punishment must be at least two
(2) in number if the law imposes a penalty
lower that the crime he had been currently
convicted; but if the penalty is equal or
greater, a single offense is sufficient. Thus,
if A had been punished for Slight Physical
Injuries in 1985 and then underwent
punishment again for Perjury in 1986, and
later on committed Rape, his liability for
the last offenses will be aggravated by
reiteracion. On the other hand, if the
previous conviction is Homicide, and later
on the conviction is for Falsification
(lighter than Homicide), reiteracion is also

53
present.

Different forms of habituality

1. Recidivist is one who
 At the time of his trial for
one crime
 Shall have been previously
convicted
 By final judgment
 Of another crime embraced
in the same title of the Code
-Hence, there’s a need for
two convictions (first, by
final judgment and it must
take place prior to the
second conviction)
 Accused committed robbery
on December 23. He then
committed theft on
December 30. He was
convicted for theft. After, he
was charged for robbery. Is
the accused a recidivist? No.
The second crime must be
committed after the first
conviction. (People vs.
Baldera)
2. Reiteracion
 The offender has previously
served his sentence
 The first offense must have
been punished with an equal
or greater penalty
 He has committed two or
more crimes previously to
which the law attaches a
lighter penalty
 Does not require that the
offenses be covered under
the same title of the Code

Recidivism
Antecedent Previous conviction by
final judgment
Offense Under the same Title of the
Code
Penalty No requirement as to
penalty imposed in the
prior conviction

3. Habitual Delinquency

54
  Within a period of 10 years
from the date of his release
or last conviction of the
crimes of falsification,
robbery, estafa, theft,
serious or less serious
physical injuries
 Found guilty of said crimes
a third time or oftener
 Special aggravating
circumstance for which an
additional penalty is
imposed which escalates
with increase in the number
of convictions (Art. 62)
 Need for 3 convictions. The
third conviction must be
committed within ten (10)
years from the second
conviction.

Recidivism
Convictions Two are enough
Crimes covered Must be both under the
same Title of the Code

Prescription None as no time limit

given by law between
the 1st and 2
convictions

Nature Generic, can be offset

Penalty Increase is to the
maximum penalty

4. Quasi-recidivism (Art. 160)

 Offender has been
previously convicted by
final judgment
 Before beginning to serve
such sentence or while
serving the same, he
commits a felony
 Special aggravating, cannot
be offset
 Penalizes the convict with
the maximum period for the
new felony committed
 Example: The accused is
serving his sentence for the

55
 crime of homicide. Then he
kills someone in prison. He
will get the maximum
period for his second
homicide.

11. That the crime be committed in

consideration of a price, reward, or
promise.

Discussion:

To consider this circumstance, the price,

reward or promise must be the primary
reason or the primordial motive for the
commission of the crime. Thus, if A
approached B and told the latter what he
thought of X, and B answered “he is a bad
man” to which A retorted, “you see I am
going to kill him this afternoon”, and so B
told him “If you do that, I’ll give you five
thousand (P5,000.00)” and after killing X,
A again approached B, told him he had
already killed X, and B, in compliance with
his promise, delivered the five thousand
(P5,000.00), this aggravating circumstance
is not present.

Whenever present however, this

aggravating circumstance affects not only
the accused who perpetrated the crime
because of the money or consideration but
also the accused who offered, as the former
becomes a principal by direct participation
while the latter, a principal by inducement.
(People vs. Geraloga, 263 SCRA 143)

Mere promise, as long as it is the reason

why the offense was done is sufficient.

12. That the crime be committed by

means of inundation, fire, poison,
explosion, stranding of a vessel or
intentional damage thereto, derailment
of a locomotive, or by the use of any
other artifice involving great waste and
ruin.

Discussion:

The purpose in employing the means- that

is, inundation, fire, poison, etc., must be to

56
kill the offended party to consider it as
aggravating. Thus, where the purpose of
the offenders in putting flames the polo
shirt of the victim was for further
merriment because the victim continued to
dance even while his clothes were on fire,
to the delight of the crowd, there is no
aggravating circumstance of by means of
fire, as obviously the objective of using fire
to kill the victim is not present.

Under R.A. No. 8294 which amends P.D.

No. 1866, when a person commits any
crime under the Revised Penal Code or
special laws with the use of explosives
including but not limited to pillbox,
Molotov cocktail bombs, detonation agents
or incendiary devices resulting in the death
of a person, the same is aggravating. (Sec.
2)

13. That the act be committed with

evident premeditation.

Discussion:
EVIDENT PREMEDITATION

Elements: 1. Time when the offender

determined to commit the crime
2. An overt act manifestly indicating that
he has clung to his determination
3. Sufficient lapse of time between such
determination and execution to allow him
to reflect upon the consequences of his
acts. (People vs. Annibong)
So where A and B had a fistic fight and A
found himself at the receiving end despite
his size and threatened to kill B shouting,
after they separated “Hanggang bukas na
lang ang buhay mo” and thereafter forgot
everything but when he saw B in the
afternoon of that day, he stabbed him, there
is no evident premeditation to speak of
because requisite no. 2 is lacking.
However, if after making the threat A went
to his friends borrowing firearm, and when
nobody lent him, he bought a bolo,
sharpened it the whole morning of the
following day and looked for B whom he
killed with the said bolo, evident
premeditation shall be taken against him.

57
In People vs. Mojica, 10 SCRA 515, the
lapse of one (1) hour and forty-five (45)
minutes (4:15 p.m. to 6 p.m.) was
considered by the Supreme Court as
sufficient. In People vs. Cabodoc, 263
SCRA 187, where at 1:00 p.m., the accused
opened his balisong and uttered, “I will kill
him (referring to the victim)”, and at 4:30
p.m. of the said date accused stabbed the
victim, it was held that the lapse of three
and a half hours (3 ½ hours) from the
inception of the plan to the execution of the
crime satisfied the last requisite of evident
premeditation.

Where it appears that after the fight was

broken up, the accused returned to kill the
victim after four (4) hours, it cannot be
deduced with certainty that he clung to his
decision to kill the victim. There is no
evident premeditation. (People vs. Nell, et.
al., G.R. No. 109660, July 1, 1997)

Evident pre- meditation while inherent in

crimes against property, may be considered
in robbery with homicide if there is pre-
meditation to kill besides stealing. So also,
where treachery obtains in this special
complex crime, such treachery is to be
regarded as a generic aggravating
circumstance although it will not qualify
the killing to murder, robbery with
homicide being a case of a composite crime
with its own definition, and special penalty
in the Revised Penal Code. (People vs.
Cando, 344 SCRA 331)

14. That the craft, fraud or disguise be

employed.

Craft is present since the accused and his

cohorts pretended to be bonafide
passengers of the jeep in order not to
arouse suspicion; when once inside the
jeep, they robbed the driver and other
passengers. (People vs. Lee, 204 SCRA
900)

However, in People vs. Aspile, 191 SCRA

530, appellants are ruled not to have
employed craft since they had already

58
boarded the vessel when they pretended to
buy Tanduay Rum in exchange for the
dried fish and chicken they were carrying.
Even without such pretense, they could
nonetheless have carried their unlawful
scheme.

While craft is a circumstance characterized

by trickery or cunning resorted to by the
accused (People vs. Barrios, 92 SCRA
195), fraud involves acts, or spoken or
written words, by a party to misled another
into believing a fact to be true when it is
not so. (Antazo vs. People, 138 SCRA 292)
Thus, where A armed with a knife and
ready to meet B, who was holding a lead
pipe, told the latter that if he (B) would just
drop his weapon their differences would be
settled amicably but once B dropped his
lead pipe, A immediately attacked him with
his knife, fraud is said to be present.

There is only a hairline distinction between

craft and fraud and the Supreme Court in
various cases has used them
interchangeably. Justice Luis Reyes in his
book, The Revised Penal Code, Book I,
1993 Ed., p. 399, has distinguished the two
(2) terms, in that when there is a direct
inducement by insidious words or
machinations, fraud is present; otherwise,
the act of the accused done in order not to
arouse the suspicion of the victims
constitutes craft.

Disguise is the use of any device or artifice

by the accused to conceal his identity.
Thus, where the accused wore masks to
cover their faces, even if the masks
subsequently fell down, thus paving the
way for their identification, this
aggravating circumstance is present as
there could have been no other purpose but
to conceal their identities. (People vs.
Cotabato, 160 SCRA 98)

If the offender put charcoal on his entire

naked body, entered the house of his
neighbour and raped her, the crime of rape
is aggravated by this circumstance.

But the accused must be able to hide his

59
identity during the initial stage, if not all
throughout, the commission of the crime
and his identity must have been discovered
only later on, to consider this aggravating
circumstance. If despite the mask worn by
the accused, or putting of charcoal over his
body, the offended party even before the
initial stage knew him, he was not able to
hide his identity and this circumstance
cannot be appreciated.

15. That advantage be taken of superior

strength, or means be employed to
weaken the defense.

Discussion:

The accused who, with sand in his hand,

threw the same into the eyes of the
offended party when they were about to
strike each other causing the momentary
blindness on the part of the latter has
employed means to weaken the defense.

The fact however that there were two

persons who attacked the victim does not
per se establish that the crime was
committed with abuse of superior strength.
To take advantage of superior strength
means to purposely use excessive force out
of proportion to the means available to the
person attacked to defend himself. (People
vs. Casingal, 243 SCRA 37)

Where appellants’ group numbered more

than five (5), two (2) of whom were armed
with bladed weapons while the victim was
unarmed surrounded by the group, with his
hand held by at least one (1), and was
stabbed fatally sustaining two (2) frontal
wounds and other injuries, the crime is
aggravated by abuse of superior strength in
as much as no alevosia was proven as the
appellants did not consciously adopt their
mode of attack. (People vs. Daen, Jr., 244
SCRA 382)

Had treachery or alevosia been proven, it

would have absorbed abuse of superior
strength. (People vs. Panganiban, 241
SCRA 91)

60
The attack of the three (3) men all armed
with bladed weapons against an unarmed
woman whose body bore seventeen (17)
stab wounds, clearly shows the presence of
this circumstance.

16. That the act be committed with

treachery (alevosia).
There is treachery when the offender
commits any of the crimes against the
person, employing means, methods, or
forms in the execution thereof which
tend directly and specially to insure its
execution, without risk to himself arising
from the defense which the offended
party might make.

Discussion:
TREACHERY

There is treachery or alevosia when the

offender commits any of the crimes against
the person, employing means, methods or
forms in the execution thereof which tend
directly and specially to insure its
execution, without risk to himself arising
from the defense which the offended party
might make.

For treachery to be present, two conditions

must concur: (a) the employment of means
of execution which would ensure the safety
of the offender from defensive and
retaliatory acts of the victim, giving said
victim no opportunity to defend himself,
and (b) the means, method and manner of
execution were deliberately and
consciously adopted by the offender.
(People vs. Malabago, 265 SCRA 198)

Where the accused, suddenly and without

any warning, shot the deceased from
behind, knowing he was carrying a bolo,
there is treachery. (People vs. Escander,
265 SCRA 444)

Even if the attack is frontal, treachery may

also be considered if the attack on the
victim, although preceded by a warning
“Tara Sergio”, was undoubtedly sudden
and unexpected and prevented the
unsuspecting victim, who had just stood

61
up, from defending himself. (People vs.
Estanislao, 265 SCRA 810)

For treachery to be appreciated however,

this circumstance must be present at the
inception of the attack and if absent, and
the attack is continuous, treachery at a
subsequent stage is not to be considered.
(People vs. Escoto, 244 SCRA 382)
However, if there is a break in the
continuity of the aggression, it is not
necessary that treachery be present in the
beginning of the assault; it is sufficient that
when the fatal blow was inflicted, there
was treachery. (U.S. vs. Balagtas, 19 Phil.
164)

As a rule, a sudden attack by the assailant,

whether frontally or from behind, is
treachery if such mode of attack was coolly
and deliberately adopted by him with the
purpose of depriving the victim of a chance
to either fight or retreat. (People vs. Real,
242 SCRA 671) However, mere suddenness
of the attack, or one made from behind,
does not necessarily compel a finding of
treachery for the essence of this
circumstance lies in the adoption of ways
and means that minimize or neutralize any
resistance which may be put up by the
offended party. (People vs. Gonzagan, Jr.,
247 SCRA 220)

17. That means be employed or

circumstances brought about which add
ignominy to the natural effects of the act.

Discussion:

Ignominy is a circumstance pertaining to

the moral order, which adds disgrace and
obloquy to the material injury caused by
the crime, so that killing a man in the
presence of the wife does not constitute
ignominy (People vs. Abaigar, 2 Phil. 417)
but raping her in the presence of the
husband shows ignominy and aggravates
the offense.

Where before the victim, a landowner, was

killed, he was made to kneel in front of his
househelpers, this aggravating

62
circumstance would be present. (U.S. vs. de
Leon, 1 Phil. 163)

The victim must still be alive. (People vs.

Fuertes)

The ruling that if robbery with homicide

was committed with additional killings
and/ or rape, the additional killings or the
rape shall be considered aggravating
circumstances has been rendered obsolete
by the Supreme Court’s decision in People
vs. Regala, 329 SCRA 709 holding that
there is no law providing that additional
rape/s or homicide/s committed on the
occasion of robbery should be considered
as aggravating circumstance. A penal law
is liberally construed in favour of the
offender and no person should be brought
within its terms if it is not clearly made so
by the statute.

18. That the crime be committed after an

unlawful entry.
There is an unlawful entry when an
entrance of a crime a wall, roof, floor,
door, or window be broken.

Discussion:

In taking away certain valuable articles

from the house, accused entered through
the window. The crime committed is
Robbery; but because this circumstance is
not alleged in the information, the offense
is classified as Theft. However, the crime is
aggravated by Unlawful Entry. (People vs.
Sunga, 43 Phil. 205)

19. That as a means to the commission of

a crime a wall, roof, floor, door or
window be broken.

Discussion:

The breaking of the parts of the house must

be made as a means to commit the offense.
So, if A entered the door of his neighbour
and after killing him, escaped by breaking
the jalousies of the window or the door,
this aggravating circumstance is absent.

63
While the law uses the words “wall, roof,
floor, door or window”, in one case, where
accused entered a field tent by cutting the
ropes at the rear of the tent, and killed the
victim soldiers sleeping thereat, the
Supreme Court considered the crime of
Murder, attended by the aggravating
circumstance of forcible entry.

20. That the crime be committed with

the aid of persons under fifteen years of
age or by means of motor vehicles,
motorized watercraft, airships, or other
similar means. (As amended by RA
5438).
21. That the wrong done in the
commission of the crime be deliberately
augmented by causing other wrong not
necessary for its commissions.

Discussion:
CRUELTY

There is cruelty when the offender

deliberately and inhumanly augmented the
suffering of the victim.

The fact that the victim’s decapitated body

bearing forty- three (43) stab wounds,
twenty-four (24) of which were fatal was
found dumped in the street is not sufficient
for a finding of cruelty where there is no
showing that the accused, for his pleasure
and satisfaction caused the victim to suffer
slowly and painfully and inflicted on him
unnecessary physical and moral pain.
(People vs. Ilaoa, 233 SCRA 231)

AGGRAVATING CIRCUMSTANCES
NOT PROVIDED UNDER REVISED
PENAL CODE

A. Under the Influence of Dangerous

Drugs

Sec. 17 of B.P. Blg. 179 promulgated

on March 2, 1982 provides:

“The provision of any law to the

contrary notwithstanding, when a crime
is committed by an offender who is
under the influence of dangerous drugs,

64
 such state shall be considered as
qualifying aggravating circumstance.”

B. Organized/ Syndicated Group

The maximum penalty shall be imposed

if the offense was committed by any
person who belongs to an organized/
syndicated crime group.

An organized/ syndicated crime group

means a group of two or more persons
collaborating, confederating or
mutually helping one another for
purposes of gain in the commission of
any crime. (Art. 23, R.A. No. 7659)

Chapter Five
ALTERNATIVE CIRCUMSTANCES

They are those circumstances which must

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

Art. 15. Their concept. — Alternative

circumstances are those which must be
taken into consideration as aggravating
or mitigating according to the nature
and effects of the crime and the other
conditions attending its commission.
They are the relationship, intoxication
and the degree of instruction and
education of the offender.

The alternative circumstance of

relationship shall be taken into
consideration when the offended party is
the spouse, ascendant, descendant,
legitimate, natural, or adopted brother
or sister, or relative by affinity in the
same degrees of the offender.

The intoxication of the offender shall be

taken into consideration as a mitigating
circumstances when the offender has
committed a felony in a state of
intoxication, if the same is not habitual
or subsequent to the plan to commit said
felony but when the intoxication is

65
habitual or intentional, it shall be
considered as an aggravating
circumstance.
 
Discussion:
RELATIONSHIP

Relationship shall be considered when the

offended party is the spouse, ascendant,
descendant, brother or sister, or relative by
affinity in the same degree of the offender,
like parents-in-law, children-in-law, or
brothers-in-law or sisters-in-law. The
relationship of step-daughter and step-
father is included. (People vs. Tan, Jr., 264
SCRA 425) but not that of uncle and niece.
(People vs. Cabresos, 244 SCRA 362)

When is relationship a mitigating

circumstance? In crimes against property, it
is mitigating, applying by analogy Art. 332
which provides that there is no criminal but
only civil liability in case of theft,
swindling or malicious mischief committed
or caused mutually by spouses, ascendants,
descendants, brothers and sisters, and
relatives by affinity in the same line, with a
proviso that in case of brothers or sisters
and brothers-in-law or sisters-in-law they
must be living together.

In crimes against persons, except serious

physical injuries, where relationship is
always aggravating the rule is where the
offended party is a relative of a higher
degree, or where he is of the same level as
the offender, relationship is aggravating,
otherwise it is mitigating. If it results in the
death of the victim even if he is of a lower
level, the relationship is aggravating.
However, this rule is subject to the “other
conditions attending the commission of the
crime”.

INTOXICATION

The ordinary rule is that, intoxication may

be considered either aggravating or
mitigating, depending upon the
circumstances attending the commission of
the crime. Intoxication has the effect of
decreasing the penalty, if the intoxication is

66
not habitual or subsequent to the plan to
commit the crime; upon the other hand,
when intoxication is habitual or intentional,
it is considered as an aggravating
circumstance. The person pleading
intoxication must present proof that he had
taken, a quantity of alcoholic beverage
prior to the commission of the crime,
sufficient to produce the effect of blurring
his reason; and at the same time, he must
prove that not only was intoxication not
habitual but also that his imbibing the
alcoholic drink was not intended to fortify
his resolve to commit the crime. (People
vs. Buenaflor, 211 SCRA 492)

DEGREE OF INSTRUCTION AND

EDUCATION OF THE OFFENDER

High degree of education and instruction of

the offender is always aggravating, never
mitigating when applicable. In a case for
Homicide or Murder, the liability of the
offender is not aggravated even if he is a
bar or board examination topnotcher, and
has graduated summa cum laude from his
college degree. On the other hand, the
liability of an accountant or a lawyer who
commits Estafa by means of “Kiting” or
violation of the Trust Receipts Law shall be
aggravated since he used his high degree of
education and knowledge in committing
the criminal act.

Low degree of instruction or education, on

the other hand is always mitigating, never
aggravating when applicable. Where the
accused did not finish even the first grade
in elementary school, the murder he
committed is attenuated by this alternative
circumstance (People vs. Limaco, 88 Phil.
35); so also in perjury where the affidavit
is written in English this mitigating
circumstance is present.

The rule however is that not only illiteracy,

but also lack of sufficient intelligence, is
necessary to successfully avail of this
alternative circumstance as mitigating.

In Molesa vs. Director of Prisons, 59 Phil.

407, the Supreme Court ruled:

67
“This Court has held that the mitigating
circumstance of lack of instruction should
not be taken into consideration in
connection with the crime of rape. Xxx No
one is so ignorant as not to know that the
crime of rape is wrong and violation of the
law.”

Title Two
PERSONS CRIMINALLY LIABLE
FOR FELONIES

Who are the particeps criminis- that is,

those participants in the crime? They are
the principals, accomplices, and
accessories. However, for light felonies,
the persons criminally liable are only the
principals and the accomplices. (Art. 16)

By the personal nature of criminal liability,

only natural persons can be the active
subject of a crime. However, corporations
and juridical persons can be ordered to pay
fine as a punishment under some special
laws, like the Corporation Law, General
Banking Act, Omnibus Election Code, etc.
In some cases, the officers of the
corporation and/ or partnerships are the
ones personally held liable.

Art. 16. Who are criminally liable. — The

following are criminally liable for grave
and less grave felonies:
1. Principals
2. Accomplices
3. Accessories

The following are criminally liable for

light felonies:
1. Principals
2. Accomplices

For light felonies, accessories are not liable

because the light felonies are punished with
arresto menor. Accessories are given the
penalty two degrees lower than the
principals. There is nothing two degrees
below arresto menor.

Art. 17. Principals. — The following are

considered principals:

68
1. Those who take a direct part in the
execution of the act;
2. Those who directly force or induce
others to commit it;
3. Those who cooperate in the
commission of the offense by another act
without which it would not have been
accomplished.

Discussion:

There are three (3) Classes of Principals-

(a) Principals by Direct Participation- that
is, those who take a direct part in the
execution of the act; (b) Principals by
Inducement or Induction- those who
directly force or induce others to commit
the crime; and (c) Principals by
Indispensable Cooperation, those who
cooperate in the execution of the offense by
another act without which the crime would
not have been accomplished.

Principal by Direct Participation are

those who, participating in the criminal
resolution, proceed to perpetrate the crime
and personally take part in its realization,
executing acts which directly tend to the
same end. (People vs. Guballo, 16401-R,
Feb. 19, 1957) To hold liable thus as
principals by direct participation, they must
have conspired with each other (and with
other participants if there are any) and went
to the scene of the crime to personally
execute what they agreed upon, their acts
tending towards the same objective.

Thus, if A, B, C and D conspired with each

other to kill X and then proceeded to the
house of X, but before reaching the same,
D pretending to answer the call of nature
went out of the way and did not join A, B
and C anymore when the three (3) [A, B &
C] killed X, D cannot be considered a
principal by direct participation since even
if he conspired with the three, he did not
proceed to the scene of the crime.

So also, if X, Y and Z passed by the house

of W who was apparently not in the mood
and upon Z’s loud calling, went out of his
house with a bolo, and while grappling

69
with W, the latter’s wife came out from
nowhere and stabbed Z with her spear, W
cannot be classified as a principal by direct
participation as he did not conspire with his
wife in killing Z even if he was at the scene
of the crime.

The acts of the participants must be

towards the same end in carrying out their
plan. So that in the first example above,
even if A only acted as look-out in the yard
of X’s house, and B just accompanied C to
the room where X was sleeping, ready to
assist C if the need arises, and it was only
C who fired the gun that killed X, all the
three (3) meaning, A, B and C are
principals by direct participation.

Where the accused conspired with his three

(3) co-accused to kill the two (2) victims
and the role assigned to him was to kill one
of the victims which he did, he is a
principal by direct participation in the two
(2) murders.

Where conspiracy has been adequately

proven, there is collective criminal
responsibility, for in conspiracy, the act of
one is the act of all. On the other hand, if
there is no conspiracy proven, individual
criminal liability may ensue.
Principal by Direct Inducement are of
two (2) classes: those who directly induce
others to commit the crime, and those who
directly force another to perpetrate the
offense. The one forced or induced is the
principal by direct participation.

There are two (2) ways of directly inducing

another to commit a crime:

(a) By giving price, reward or promise. To

fall under the scenario, the price, reward or
promise must be the primordial
consideration why the principal by direct
participation proceeded to commit the
crime. So that if he would commit the
offense just the same with or without the
price, promise or reward, the one who gave
the price or reward is not liable.
Necessarily, there must be conspiracy
between the giver of the consideration, and

70
the doer of the act.

(b) By using words of command. To hold

the principal by inducement liable, it is
necessary that the inducement be made
directly to secure the commission of the
crime and that such inducement be the
determining cause of the execution of the
act by the principal by direct participation.

Mere suggestion, or a thoughtless

expression or a chance word spoken
without any intention or expectation that it
would produce the result cannot hold the
utterer liable as principal by inducement.
Thus, if A, in response to B who was
narrating to him his (B’s) bitter experience
with X in a chance conversation told B,
“Kung ako ikaw eh papatayin ko yang si
X”, and later on, B killed X, A cannot be
considered a principal by inducement.

Even if the inducement be directly made,

with the inducer insistent and determined to
procure the commission of the crime, he
still cannot be classified as principal by
induction if the inducement is not the
determining cause for committing the
crime. Thus, if the actor has reason of his
own to commit the offense, there can be no
principal by induction.

Those who directly forced another to

commit a crime are also categorized as
Principals by Inducement.

Thus, with a gun in his hand, A gave B a

knife and ordered him to kill X who was
sleeping nearby otherwise he (A) would
shoot him (B). If B would stab X to death,
A is a principal by inducement directly
forcing another to commit a crime. B, on
the other hand, is a principal by direct
participation although he would be exempt
from criminal liability under Article 12,
par. 6.

Does the Principal by Direct Inducement

have to be in the scene of the crime to be
liable? No, they are liable even if they did
not appear in the crime scene.

71
Principals by Indispensable Cooperation
are those who cooperate in the commission
of the offense by another act without which
it would not have been accomplished. Like
in the case of Principal by Inducement, it
presupposes the existence of the principal
by direct participation otherwise with
whom shall he cooperate with
indispensably.

The cooperation spoken here is assistance

knowingly or intentionally rendered which
cannot exist without previous cognizance
of the criminal act intended to be executed.
(Phil. Law Dictionary by Moreno, 3rd Ed.,
p. 213) In other words, before an accused
can be tagged as a principal by
indispensable cooperation, he must have
conspired with the principal by direct
participation or must have a unity of
criminal purpose and intention with him
immediately before the commission of the
offense, but his cooperation is in the
performance of another act without which
the criminal act would not have been
accomplished.

Where both accused conspired and

confederated to commit rape, and one had
sex with the offended party while the other
was holding her hands, and thereafter the
latter was the one who raped the victim,
both are principals by direct participation
and by indispensable cooperation in the
two (2) crimes of rape committed. (People
vs. Fernandez, 183 SCRA 511)

Where A, a municipal treasurer, conspired

with B for the latter to present a false
receipt and which receipt was the basis of
the reimbursement approved by A, and
both thereafter shared the proceeds, A is
the principal by direct participation and B
by indispensable cooperation in the crime
of Malversation.

Does the Principal by Indispensable

Cooperation have to be in the crime scene?
No.
Example: A, who lives in the US, gives B
poison to kill C. B used the poison to kill C
here in the Philippines. A is Principal by

72
Indispensable Cooperation and B is
Principal by Direct Participation.

Art. 18. Accomplices. — Accomplices are

those persons who, not being included in
Art. 17, cooperate in the execution of the
offense by previous or simultaneous acts.

Discussion:
An Accomplice is one who not being a
principal, cooperates in the execution of the
offense by previous or simultaneous acts.
To be an accomplice, the offender should
take part in the execution of the crime by
previous or simultaneous acts and intends
to take part in the commission of the crime.

The existence of an accomplice

presupposes the existence of a principal by
direct participation. The accomplice does
not conspire with the principal although he
cooperated in the execution of the criminal
act.

If A approached B, borrowing the latter’s

gun, telling him that he (A) is going to kill
X, and B knowing A’s criminal design, lent
his gun with which A shot and killed X, B
is an accomplice cooperating by previous
act.

In the above example, take note that while

B did not conspire with A to kill X, he (B)
concurred with A in his purpose. Had he
conspired with A, B is a principal by
indispensable cooperation. The act of A
however must have a relation to the
participation of B. Thus, if while B,
knowing A’s purpose to kill X, still lent his
gun to A, but A used a bolo in killing X,
then B cannot be considered an
accomplice.

While X was choking Y, W went behind Y

without any knowledge of X and once
within striking distance, stabbed Y. Even
upon seeing the stabbing made by W, X
continued choking Y, who died of stab
wounds. Choking contributed to the death
of Y. In this case, W is an accomplice
cooperating by simultaneous act.

73
If the offender, however, even if
performing the acts of an accomplice, has
participated as a principal, he will be
punished as a principal and no longer an
accomplice.

Example: A killed B. C was the lookout.

But while B was being stabbed by A, C
stole from B. What is the liability of C?
Accomplice to the murder of B and
Principal to the crime of robbery of B.

Art. 19. Accessories. — Accessories are

those who, having knowledge of the
commission of the crime, and without
having participated therein, either as
principals or accomplices, take part
subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting
the offender to profit by the effects of the
crime.
2. By concealing or destroying the body
of the crime, or the effects or
instruments thereof, in order to prevent
its discovery.
3. By harboring, concealing, or assisting
in the escape of the principals of the
crime, provided the accessory acts with
abuse of his public functions or
whenever the author of the crime is
guilty of treason, parricide, murder, or
an attempt to take the life of the Chief
Executive, or is known to be habitually
guilty of some other crime.

Discussion:

Accessories are those who have knowledge

of the commission of the crime without
having participated therein but who took
part subsequent to its commission in any of
the following means:

1. Profiting or assisting the offender to

profit from the effects of the crime.

The most common example is a person

who, without having participated as
principal or accomplice in Robbery or
Theft but knowing that the property being
offered to him is the proceeds or subject

74
matter of the said crime, bought or
purchased or dealt in any manner with such
property, obtaining benefit from said
transaction or helping the thief or robber to
profit therefrom. If the robber or thief
requests him to sell the property stolen, and
he does so and thereafter given a share, he
is also an accessory.

Under P.D. No. 1612, otherwise known as

“Anti-fencing Law”, any person who, with
intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and
sell, or in any other manner deal in any
article, item, object or anything of value
which he knows, or should have known to
have been derived from the proceeds of the
crime of robbery or theft shall be punish
depending on the value of the property
involved. (Sec. 2)

The accessory however should not take the

property without the consent of the
principal or accomplice in possession of the
same, otherwise he is a principal in the
crime of theft since a stolen property can
also be the subject of theft or robbery.

A person who profits or assists the offender

to profit by the effects of the crime is also
illustrated in a kidnapping case where the
kidnappers ask a person who has not
participated in the actual kidnapping, to
contact the parents of the victim to
negotiate the delivery of ransom money,
and having successfully done so, receives a
share from the same. He is also an
accessory.

But if a person being a co-conspirator in

theft or robbery, sold some of the property
stolen, he should no longer be punished as
an accessory since he will be held already
as a principal.
Profiting or assisting the offender to profit
 Intent to gain is not enough, there
must have been some gain or
material benefit.
 A person who received any
property from another and used it,
knowing the property was stolen, is

75
 guilty as an accessory by profiting.
 If the crime is robbery/ theft and
one bought, sold, possessed, or
profited from the goods stolen,
what is he guilty of?
-Principal for the crime of fencing
-Accessory to the principals in the
crime of robbery or theft
 One who receives part of the
ransom/ loot from kidnapper/
robbery with homicide is an
accessory to the crime of
kidnapping/ robbery with
homicide.

2. By concealing the body of the crime or

effects or the instruments thereof to
prevent its discovery;

Where A, knowing that B and C had killed

X, buried the corpse to prevent the
discovery of the killing, he is an accessory.

The body of the crime however does not

only mean the body of the person killed.
This phrase refers to CORPUS DELICTI-
that is, the body or the substance of the
offense. (People vs. Bantagan, 54 Phil.
841). Corpus Delicti simply means the fact
that a crime has actually been committed.
(People vs. Madlangbayan, 94 SCRA 685)

Placing a weapon in the hand of the

deceased who was killed by his friend, to
make it appear that his friend had killed the
victim in self-defense constitutes an act of
an accessory.

Where the wife misled the authorities by

informing them that the person who killed
her husband was a thief who has fled, when
in truth, the killer was her paramour, the
wife is liable as an accessory for
concealing the body of the crime.

If A, after killing a person, went to B and

told the latter to hide the gun he used,
which B did with the objective of
concealing the crime, B is an accessory by
concealing the instrument of the crime. So
also, if X would deliver the car he had
carnapped, to Y, telling the latter of the

76
carnapping he did, and asking him to
conceal the car so that the crime would not
be discovered, and Y did so, he is an
accessory by concealing the effects of the
crime.

3. By harboring, concealing or assisting

the escape of the principal of the crime,
provided the accessory acts with abuse of
public functions, or whenever the author
of the crime is guilty of treason, parricide,
murder or an attempt to take the life of
the Chief Executive, or is known guilty of
some other crime.

2 Kinds: a. By a public officer who acts

with abuse of public functions, he is liable
whatever crime may have been committed
by the offender and
b. By a private individual and only when
the author of the crime is guilty of treason,
attempt on the life of the Chief Executive,
murder, parricide or is known to be
habitually guilty of some other crime.

So a private individual will only be liable

as an accessory for harbouring the escape
of the offender for those crimes
enumerated. Compare this to the public
officer who is guilty for whatever crime.
Take note that in the second instance, the
principal must have been adjudged guilty.

If the one who harbors or assists in the

escape of the principal is a public officer,
whatever be the crime committed by the
said principal provided it is not a light
felony, will make him an accessory. Thus,
if A rapes a woman, and he is assisted in
his escape by a public officer, the latter is
liable as an accessory.

However, if the one who assists the rapist

in his escape is a private individual, he is
not liable as an accessory under this article
because in case of a private individual
assisting the escape of the principal, the
crime committed must be treason,
parricide, murder or an attempt to take the
life of the Chief Executive.

Thus, if A and B agreed to fight, and after

77
killing B, A was assisted by private
individual C in his escape, C is not liable as
an accessory because the crime committed
by A is only Homicide there being an
agreement to fight.

While accessories’ liability is subordinate

to that of the principal, the acquittal of the
latter does not mean acquittal of the
accessory. So that if A, charged as
principal in a murder case, with B indicted
as accessory for helping him escape before
he was finally arrested, and A was
acquitted because of self-defense or that the
court adjudged the crime to be only
Homicide, B is not liable as an accessory.
But if A was acquitted because of insanity,
or the case against him dismissed because
he died during the trial, B can still be held
liable as an accessory as long as it is
proven that the crime was murder, and he
assisted A in his escape.

In connection with this matter, Presidential

Decree No. 1829 provides that the penalty
of prision correccional in its maximum
period, or a fine ranging from one thousand
(P1,000.00) to six thousand (P6,000.00)
pesos or both, shall be imposed upon any
person who knowingly or wilfully
obstructs, impedes, frustrates or delays the
apprehension of suspects and the
investigation and prosecution of criminal
cases by harbouring or concealing, or
facilitating the escape of any person whom
he knows, or has reasonable ground to
believe or suspect, has committed any
offense under existing penal laws in order
to prevent his arrest, prosecution and
conviction. This is what is properly known
as Obstruction of Justice.

Art. 20. Accessories who are exempt from

criminal liability. — The penalties
prescribed for accessories shall not be
imposed upon those who are such with
respect to their spouses, ascendants,
descendants, legitimate, natural, and
adopted brothers and sisters, or relatives
by affinity within the same degrees, with
the single exception of accessories falling
within the provisions of paragraph 1 of

78
the next preceding article.
 
Discussion:
Who are exempt?
 Spouse
 Ascendant
 Descendant
 Legitimate, natural and adopted
brothers and sisters
 Relatives by affinity within the
same degrees

Why? Natural affection for the offender.

Exempt for acts in Art. 19 EXCEPT if
they profit or assist the offender to profit
Example: A killed B, told sister C to hide
the body of B. A and C buried B. The sister
is exempt. Got to preserve the cleanliness
of one’s name. It compels one to conceal
crimes by relatives.

Title Three
PENALTIES
Chapter One
PENALTIES IN GENERAL

Penalty is the punishment imposed by

lawful authority upon a person who
commits an unlawful, deliberate or
negligent act. (People vs. Moran, 44 Phil.
431)

Art. 21. Penalties that may be imposed. —

No felony shall be punishable by any
penalty not prescribed by law prior to its
commission.

Discussion:
 Only penalties prescribed by law
prior to its commission can be
imposed on the offender
 Article 21 of the Revised Penal
Code provides that no felony shall
be punishable by any penalty not
prescribed by law prior to its
commission but the law cannot
impose cruel and unusual
punishment as the Constitution
prohibits it. In a judgment of
conviction for any crime, the court
should specify the appropriate name

79
 of the penalty provided for in the
Revised Penal Code or in special
laws. (People vs. Aquino)

Art. 22. Retroactive effect of penal laws.

— Penal Laws shall have a retroactive
effect insofar as they favor the persons
guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5
of Article 62 of this Code, although at
the time of the publication of such laws a
final sentence has been pronounced and
the convict is serving the same.

Art. 23. Effect of pardon by the offended

party. — A pardon of the offended party
does not extinguish criminal action
except as provided in Article 344 of this
Code; but civil liability with regard to
the interest of the injured party is
extinguished by his express waiver.

Art. 24. Measures of prevention or safety

which are not considered penalties. —
The following shall not be considered as
penalties:
1. The arrest and temporary detention of
accused persons, as well as their
detention by reason of insanity or
imbecility, or illness requiring their
confinement in a hospital.
2. The commitment of a minor to any of
the institutions mentioned in Article 80
and for the purposes specified therein.
3. Suspension from the employment of
public office during the trial or in order
to institute proceedings.
4. Fines and other corrective measures
which, in the exercise of their
administrative disciplinary powers,
superior officials may impose upon their
subordinates.
5. Deprivation of rights and the
reparations which the civil laws may
establish in penal form.

Chapter Two
CLASSIFICATION OF PENALTIES

Art. 25. Penalties which may be

imposed. — The penalties which may be

80
imposed according to this Code, and
their different classes, are those included
in the following:
Scale
Principal Penalties
Capital punishment:
Death.
Afflictive penalties:
Reclusion perpetua, 
Reclusion temporal, 
Perpetual or temporary
absolute disqualification, 
Perpetual or temporary
special disqualification, 
Prision mayor.
Correctional penalties:
Prision correccional, 
Arresto mayor, 
Suspension, 
Destierro.
Light penalties:
Arresto menor, 
Public censure.
Penalties common to the three
preceding classes:
Fine, and 
Bond to keep the peace.
Accessory Penalties
Perpetual or temporary absolute
disqualification, 
Perpetual or temporary special
disqualification, 
Suspension from public office, the
right to vote and be voted for, the
profession or calling. 
Civil interdiction, 
Indemnification, 
Forfeiture or confiscation of
instruments and proceeds of the
offense, 
Payment of costs.

Discussion:
CLASSIFICATION OF PENALTIES

Principal Penalties

Capital Punishment
-death
Afflictive Penalties
-Reclusion Perpetua
-Reclusion Temporal

81
 -Perpetual or Temporary Absolute
Disqualification
-Perpetual or Temporary Special
Disqualification
-Prision Mayor

Correctional Penalties
-Prision Correccional
-Arresto Mayor
-Suspension
-Destierro

Light Penalties
-Arresto Menor
-Public Censure

Principal Penalties are those expressly

imposed by the court while Accessory
Penalties are those that are deemed
included in the principal penalties imposed.

In the order of severity and for the purpose

of successive service of sentences, the
penalties have the following scale:

1. Death
2. Reclusion Perpetua
3. Reclusion Temporal
4. Prision Mayor
5. Prision Correccional
6. Arresto Mayor
7. Arresto Menor
8. Destierro
9. Perpetual Absolute Disqualification
10. Temporary Absolute
Disqualification
11. Suspension from public office, the
right to vote and be voted for, the
right to follow profession or calling
12. Public Censure

The maximum duration however of the

convict’s sentence shall not be more than
threefold the length of time corresponding
to the most severe of the penalties imposed.
Said maximum period shall in no case
exceed forty (40) years. (Art. 70)

With respect to Reclusion Perpetua and

Life Imprisonment which more often than
not become somehow confusing, the
following are their differences:

82
 1. Reclusion Perpetua is imposed
by the Revised Penal Code
while Life Imprisonment is
imposed by Special Law
2. Reclusion Perpetua entails
imprisonment for only thirty
(30) years after which the
convict becomes eligible for
pardon while Life Imprisonment
does not appear to have definite
extent or duration; and
3. Reclusion Perpetua carries
Accessory penalties, while it is
not so in Life Imprisonment.
(People vs. Abapo)
For the purpose of graduating the penalties
in the light of the mitigating and
aggravating circumstances present in the
commission of the offense, the courts shall
observe the following scales:

SCALE NO. 1
1. Death
2. Reclusion Perpetua
3. Reclusion Temporal
4. Prision Mayor
5. Prision Correccional
6. Arresto Mayor
7. Destierro
8. Arresto Menor
9. Public Censure
10. Fine

A fine, however, whether imposed as a

single or as an alternative penalty, shall be
considered afflictive if it exceeds six
thousand (P6,000.00); correctional penalty
if it does not exceed six thousand
(P6,000.00) but not less than two hundred
(P200.00), and light if it be less than two
hundred (P200.00)

Art. 26. When afflictive, correctional, or

light penalty. — A fine, whether imposed
as a single of as an alternative penalty,
shall be considered an afflictive penalty,
if it exceeds 6,000 pesos; a correctional
penalty, if it does not exceed 6,000 pesos
but is not less than 200 pesos; and a light
penalty if it less than 200 pesos.

83
 Chapter Three
DURATION AND EFFECTS OF
PENALTIES
Section One. — Duration of Penalties

Art. 27. Reclusion perpetua. — Any

person sentenced to any of the perpetual
penalties shall be pardoned after
undergoing the penalty for thirty years,
unless such person by reason of his
conduct or some other serious cause
shall be considered by the Chief
Executive as unworthy of pardon.
Reclusion temporal. — The penalty of
reclusion temporal shall be from twelve
years and one day to twenty years.
Prision mayor and temporary
disqualification. — The duration of the
penalties of prision mayor and
temporary disqualification shall be from
six years and one day to twelve years,
except when the penalty of
disqualification is imposed as an
accessory penalty, in which case its
duration shall be that of the principal
penalty.
Prision correccional, suspension, and
destierro. — The duration of the
penalties of prision correccional,
suspension and destierro shall be from
six months and one day to six years,
except when suspension is imposed as an
accessory penalty, in which case, its
duration shall be that of the principal
penalty.
Arresto mayor. — The duration of the
penalty of arresto mayor shall be from
one month and one day to six months.
Arresto menor. — The duration of the
penalty of arresto menor shall be from
one day to thirty days.
Bond to keep the peace. — The bond to
keep the peace shall be required to cover
such period of time as the court may
determine.

Discussion:
Amended by Section 21 of R.A. No. 7659
which provides:
Section 21. Article 27 of the Revised Penal
Code, is hereby amended to read as

84
follows:
Article 27. Reclusion Perpetua. – The
penalty of reclusion perpetua shall be
from twenty (20) years and one (1)
day to forty (40) years.

Reclusion Temporal- The penalty of

reclusion temporal shall be from
twelve (12) years and one (1) day to
twenty (20) years.

Prision Mayor and temporary

disqualification- The duration of the
penalties of prision mayor and
temporary disqualification shall be
from six (6) years and one (1) day to
twelve (12) years, except when the
penalty of disqualification is imposed
as an accessory penalty, in which
case, its duration shall be that of the
principal penalty.

Prision correccional, suspension and

destierro- The duration of the
penalties of prision correccional,
suspension, and destierro shall be
from six (6) months and one (1) day
to six (6) years, except when
suspension is imposed as an
accessory penalty, in which case, its
duration shall be that of the principal
penalty.

Arresto mayor- The duration of the

penalty of arresto mayor shall be from
one (1) month and one (1) day to six
(6) months.

Arresto menor- The duration of the

penalty of arresto menor shall be from
one (1) day to thirty (30) days.

Reclusion perpetua, despite its “defined

duration” in R.A. No. 7659- twenty (20)
years and one (1) day to forty (40) years- is
still to be classified as an indivisible
penalty (People vs. Lucas), and should be
imposed in its entire duration in accordance
with Art. 63 of the Revised Penal Code.
(People vs. Magallano)

Art. 28. Computation of penalties. — If

85
the offender shall be in prison, the term
of the duration of the temporary
penalties shall be computed from the day
on which the judgment of conviction
shall have become final.

If the offender be not in prison, the term

of the duration of the penalty consisting
of deprivation of liberty shall be
computed from the day that the offender
is placed at the disposal of the judicial
authorities for the enforcement of the
penalty. The duration of the other
penalties shall be computed only from
the day on which the defendant
commences to serve his sentence.

Art. 29. Period of preventive

imprisonment deducted from term of
imprisonment. — Offenders who have
undergone preventive imprisonment
shall be credited in the service of their
sentence consisting of deprivation of
liberty, with the full time during which
they have undergone preventive
imprisonment, if the detention prisoner
agrees voluntarily in writing to abide by
the same disciplinary rules imposed
upon convicted prisoners, except in the
following cases:
1. When they are recidivists or have
been convicted previously twice or more
times of any crime; and
2. When upon being summoned for the
execution of their sentence they have
failed to surrender voluntarily.
If the detention prisoner does not agree
to abide by the same disciplinary rules
imposed upon convicted prisoners, he
shall be credited in the service of his
sentence with four-fifths of the time
during which he has undergone
preventive imprisonment. (As amended
by Republic Act 6127, June 17, 1970).
Whenever an accused has undergone
preventive imprisonment for a period
equal to or more than the possible
maximum imprisonment of the offense
charged to which he may be sentenced
and his case is not yet terminated, he
shall be released immediately without
prejudice to the continuation of the trial

86
thereof or the proceeding on appeal, if
the same is under review. In case the
maximum penalty to which the accused
may be sentenced is destierro, he shall be
released after thirty (30) days of
preventive imprisonment. (As amended
by E.O. No. 214, July 10, 1988).
 
Discussion:
PREVENTIVE AND SUBSIDIARY
IMPRISONMENT

Preventive imprisonment is the

incarceration undergone by a person
accused of a crime which is not bailable, or
even if bailable cannot afford to post the
bond. During the trial of his case, he is
detained in jail. He is known as detention
prisoner.
Subsidiary imprisonment, on the other
hand, is the personal penalty prescribed by
law in substitution of the payment of fine
embodied in the decision when the same
cannot be satisfied because of the culprit’s
insolvency. (People vs. Jarumayan)

Example: If the trial of A for attempted

homicide is still going on for more than six
(6) years, and he has been detained from
the beginning of the trial for failure or
inability to post bail bond, he shall be
ordered immediately release, for the crime
is punishable by prision correccional (Art.
249 in relation to Articles 6 and 51), and
the range of this penalty is six (6) months
and one (1) day to six (6) years only. (Art.
27) But the trial shall proceed so that in
case of acquittal, he will have no criminal
record. In case of conviction, he will not be
imprisoned anymore.

The preventive imprisonment undergone

by the accused shall be credited fully, to be
subtracted from his sentence, if he agrees in
writing to abide by the disciplinary rules
imposed on convicted prisoners; otherwise,
only four-fifths of the time during which he
has undergone preventive imprisonment
shall be deducted.

The following are exceptions

however:

87
 1. If the convict is a recidivist
or has been previously
convicted twice or more of
any crime;
2. When upon being
summoned for the execution
of his sentence, he shall
have failed to surrender
voluntarily. (Art. 29, RPC)

There is no subsidiary imprisonment if the

penalty is more than six (6) years.
Moreover, the subsidiary imprisonment
shall not exceed one third (1/3) of the
principal penalty or one (1) year whichever
is lesser.
 
Section Two. — Effects of the penalties
according to their respective nature

Art. 30. Effects of the penalties of

perpetual or temporary absolute
disqualification. — The penalties of
perpetual or temporary absolute
disqualification for public office shall
produce the following effects:
1. The deprivation of the public offices
and employments which the offender
may have held even if conferred by
popular election.
2. The deprivation of the right to vote in
any election for any popular office or to
be elected to such office.
3. The disqualification for the offices or
public employments and for the exercise
of any of the rights mentioned.
In case of temporary disqualification,
such disqualification as is comprised in
paragraphs 2 and 3 of this article shall
last during the term of the sentence.
4. The loss of all rights to retirement pay
or other pension for any office formerly
held.

Art. 31. Effect of the penalties of

perpetual or temporary special
disqualification. — The penalties of
perpetual or temporary special
disqualification for public office,
profession or calling shall produce the
following effects:
1. The deprivation of the office,

88
employment, profession or calling
affected;
2. The disqualification for holding
similar offices or employments either
perpetually or during the term of the
sentence according to the extent of such
disqualification.

Art. 32. Effect of the penalties of

perpetual or temporary special
disqualification for the exercise of the
right of suffrage. — The perpetual or
temporary special disqualification for
the exercise of the right of suffrage shall
deprive the offender perpetually or
during the term of the sentence,
according to the nature of said penalty,
of the right to vote in any popular
election for any public office or to be
elected to such office. Moreover, the
offender shall not be permitted to hold
any public office during the period of his
disqualification.

Art. 33. Effects of the penalties of

suspension from any public office,
profession or calling, or the right of
suffrage. — The suspension from public
office, profession or calling, and the
exercise of the right of suffrage shall
disqualify the offender from holding
such office or exercising such profession
or calling or right of suffrage during the
term of the sentence.
The person suspended from holding
public office shall not hold another
having similar functions during the
period of his suspension.

Art. 34. Civil interdiction. — Civil

interdiction shall deprive the offender
during the time of his sentence of the
rights of parental authority, or
guardianship, either as to the person or
property of any ward, of marital
authority, of the right to manage his
property and of the right to dispose of
such property by any act or any
conveyance inter vivos.

Art. 35. Effects of bond to keep the

peace. — It shall be the duty of any

89
person sentenced to give bond to keep
the peace, to present two sufficient
sureties who shall undertake that such
person will not commit the offense
sought to be prevented, and that in case
such offense be committed they will pay
the amount determined by the court in
the judgment, or otherwise to deposit
such amount in the office of the clerk of
the court to guarantee said undertaking.
The court shall determine, according to
its discretion, the period of duration of
the bond.
Should the person sentenced fail to give
the bond as required he shall be detained
for a period which shall in no case
exceed six months, if he shall have been
prosecuted for a grave or less grave
felony, and shall not exceed thirty days,
if for a light felony.

Art. 36. Pardon; its effect. — A pardon

shall not work the restoration of the
right to hold public office, or the right of
suffrage, unless such rights be expressly
restored by the terms of the pardon.
A pardon shall in no case exempt the
culprit from the payment of the civil
indemnity imposed upon him by the
sentence.

Art. 37. Cost; What are included. —

Costs shall include fees and indemnities
in the course of the judicial proceedings,
whether they be fixed or unalterable
amounts previously determined by law
or regulations in force, or amounts not
subject to schedule.

Art. 38. Pecuniary liabilities; Order of

payment. — In case the property of the
offender should not be sufficient for the
payment of all his pecuniary liabilities,
the same shall be met in the following
order:
1. The reparation of the damage caused.
2. Indemnification of consequential
damages.
3. The fine.
4. The cost of the proceedings.

Art. 39. Subsidiary penalty. — If the

90
convict has no property with which to
meet the fine mentioned in the
paragraph 3 of the next preceding
article, he shall be subject to a
subsidiary personal liability at the rate
of one day for each eight pesos, subject
to the following rules:
1. If the principal penalty imposed be
prision correccional or arresto and fine,
he shall remain under confinement until
his fine referred to in the preceding
paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third
of the term of the sentence, and in no
case shall it continue for more than one
year, and no fraction or part of a day
shall be counted against the prisoner.
2. When the principal penalty imposed
be only a fine, the subsidiary
imprisonment shall not exceed six
months, if the culprit shall have been
prosecuted for a grave or less grave
felony, and shall not exceed fifteen days,
if for a light felony.
3. When the principal imposed is higher
than prision correccional, no subsidiary
imprisonment shall be imposed upon the
culprit.
4. If the principal penalty imposed is not
to be executed by confinement in a penal
institution, but such penalty is of fixed
duration, the convict, during the period
of time established in the preceding
rules, shall continue to suffer the same
deprivations as those of which the
principal penalty consists.
5. The subsidiary personal liability
which the convict may have suffered by
reason of his insolvency shall not relieve
him, from the fine in case his financial
circumstances should improve. (As
amended by RA 5465, April 21, 1969).

Discussion:
This provision was amended by Republic
Act No. 10159

REPUBLIC ACT NO. 10159       April

10, 2012

AN ACT AMENDING ARTICLE 39 OF

ACT NO. 3815, AS AMENDED,

91
 OTHERWISE KNOWN AS THE
REVISED PENAL CODE

Be it enacted by the Senate and House of

Representatives of the Philippines in
Congress assembled:

Section 1. Article 39 of Act No. 3815, as

amended, is hereby further amended to
read as follows:

Art. 39. Subsidiary Penalty. – If the convict

has no property with which to meet the fine
mentioned in paragraph 3 of the next
preceding article, he shall be subject to a
subsidiary personal liability at the rate of
one day for each amount equivalent to
the highest minimum wage rate
prevailing in the Philippines at the time
of the rendition of judgment of
conviction by the trial court, subject to
the following rules:

1. If the principal penalty imposed

be prision correctional or arresto and fine,
he shall remain under confinement until his
fine referred in the preceding paragraph is
satisfied, but his subsidiary imprisonment
shall not exceed one-third of the term of the
sentence, and in no case shall it continue
for more than one year, and no fraction or
part of a day shall be counted against the
prisoner.

2. When the principal penalty imposed be

only a fine, the subsidiary imprisonment
shall not exceed six months, if the culprit
shall have been prosecuted for a grave or
less grave felony, and shall not exceed
fifteen days, if for a fight felony.

3. When the principal penalty imposed is

higher than prision correctional, no
subsidiary imprisonment shall be imposed
upon the culprit.

4. If the principal penalty imposed is not to

be executed by confinement in a penal
institution, but such penalty is of fixed
duration, the convict, during the period of
time established in the preceding rules,
shall continue to suffer the same
deprivations as those of which the principal
penalty consists.

5. The subsidiary personal liability which

92
the convict may have suffered by reason of
his insolvency shall not relieve him from
the fine in case his financial circumstances
should improve." (As amended by Republic
Act No. 5465, which lapsed into law on
April 21, 1969.)

(xxx)

Section Three. — Penalties in which

other accessory penalties
are inherent

Art. 40. Death; Its accessory penalties. —

The death penalty, when it is not
executed by reason of commutation or
pardon shall carry with it that of
perpetual absolute disqualification and
that of civil interdiction during thirty
years following the date sentence, unless
such accessory penalties have been
expressly remitted in the pardon.

Discussion:

Republic Act No. 9346             June 24,

2006

AN ACT PROHIBITING THE

IMPOSITION OF DEATH PENALTY
IN THE PHILIPPINES

Be it enacted by the Senate and House of

Representatives of the Philippines in
Congress assembled:

SECTION 1. The imposition of the

penalty of death is hereby prohibited.
Accordingly, Republic Act No. Eight
Thousand One Hundred Seventy-Seven
(R.A. No. 8177), otherwise known as the
Act Designating Death by Lethal Injection
is hereby repealed. Republic Act No. Seven
Thousand Six Hundred Fifty-Nine (R.A.
No. 7659), otherwise known as the Death
Penalty Law, and all other laws, executive
orders and decrees, insofar as they impose
the death penalty are hereby repealed or
amended accordingly.

SEC. 2. In lieu of the death penalty, the

following shall be imposed.

(a) the penalty of reclusion

93
 perpetua, when the law violated
makes use of the nomenclature of
the penalties of the Revised Penal
Code; or

(b) the penalty of life

imprisonment, when the law
violated does not make use of the
nomenclature of the penalties of the
Revised Penal Code.

SEC. 3. Person convicted of offenses

punished with reclusion perpetua, or
whose sentences will be reduced to
reclusion perpetua, by reason of this Act,
shall not be eligible for parole under Act
No. 4180, otherwise known as the
Indeterminate Sentence Law, as amended.

SEC. 4. The Board of Pardons and Parole

shall cause the publication at least one a
week for three consecutive weeks in a
newspaper of general circulation of the
names of persons convicted of offenses
punished with reclusion perpetua or life
imprisonment by reason of this Act who
are being considered or recommend for
commutation or pardon; Provided,
however, That nothing herein shall limit the
power of the President to grant executive
clemency under Section 19, Article VII of
the Constitutions.

SEC. 5. This Act shall take effect

immediately after its publication in two
national newspapers of general circulation.

Art. 41. Reclusion perpetua and reclusion

temporal; Their accessory penalties. —
The penalties of reclusion perpetua and
reclusion temporal shall carry with them
that of civil interdiction for life or during
the period of the sentence as the case
may be, and that of perpetual absolute
disqualification which the offender shall
suffer even though pardoned as to the
principal penalty, unless the same shall
have been expressly remitted in the
pardon.

Art. 42. Prision mayor; Its accessory

penalties. — The penalty of prision
mayor, shall carry with it that of
temporary absolute disqualification and

94
that of perpetual special disqualification
from the right of suffrage which the
offender shall suffer although pardoned
as to the principal penalty, unless the
same shall have been expressly remitted
in the pardon.

Art. 43. Prision correccional; Its

accessory penalties. — The penalty of
prision correccional shall carry with it
that of suspension from public office,
from the right to follow a profession or
calling, and that of perpetual special
disqualification from the right of
suffrage, if the duration of said
imprisonment shall exceed eighteen
months. The offender shall suffer the
disqualification provided in the article
although pardoned as to the principal
penalty, unless the same shall have been
expressly remitted in the pardon.

Art. 44. Arresto; Its accessory

penalties. — The penalty of arresto shall
carry with it that of suspension of the
right to hold office and the right of
suffrage during the term of the sentence.

Art. 45. Confiscation and forfeiture of the

proceeds or instruments of the crime. —
Every penalty imposed for the
commission of a felony shall carry with it
the forfeiture of the proceeds of the
crime and the instruments or tools with
which it was committed.
Such proceeds and instruments or tools
shall be confiscated and forfeited in
favor of the Government, unless they be
property of a third person not liable for
the offense, but those articles which are
not subject of lawful commerce shall be
destroyed.

Discussion:
OTHER EFFECTS OF PENALTY

Every Penalty imposed for the commission

of a felony shall carry with it the forfeiture
of the proceeds of the crime and the
instruments or tools with which it was
committed. Such proceeds and instruments
or tools shall be confiscated in favor of the

95
Government unless they be property of a
third person not liable for the offense; but
those articles which are not subject of
lawful commerce shall be destroyed. (Art.
45)
This forfeiture or confiscation of
instruments and proceeds of the offense is
provided for as an accessory penalty under
Article 25. If A stole the gun of B who is
duly licensed to possess it, and used it in
killing C, the gun will no longer be
confiscated in favor of the government but
would be returned to C. If the proceeds or
tools cannot be the subject of lawful
transaction like marijuana or shabu, then
they shall be ordered burned or destroyed.
 

Chapter Four
APPLICATION OF PENALTIES
Section One. — Rules for the application
of penalties
to the persons criminally liable and for
the graduation of the same.

Art. 46. Penalty to be imposed upon

principals in general. — The penalty
prescribed by law for the commission of
a felony shall be imposed upon the
principals in the commission of such
felony.
Whenever the law prescribes a penalty
for a felony is general terms, it shall be
understood as applicable to the
consummated felony.

Art. 47. In what cases the death penalty

shall not be imposed. — The death
penalty shall be imposed in all cases in
which it must be imposed under existing
laws, except in the following cases:
1. When the guilty person be more than
seventy years of age.
2. When upon appeal or revision of the
case by the Supreme court, all the
members thereof are not unanimous in
their voting as to the propriety of the
imposition of the death penalty. For the
imposition of said penalty or for the
confirmation of a judgment of the
inferior court imposing the death

96
sentence, the Supreme Court shall
render its decision per curiam, which
shall be signed by all justices of said
court, unless some member or members
thereof shall have been disqualified from
taking part in the consideration of the
case, in which even the unanimous vote
and signature of only the remaining
justices shall be required.

Art. 48. Penalty for complex crimes. —

When a single act constitutes two or
more grave or less grave felonies, or
when an offense is a necessary means for
committing the other, the penalty for the
most serious crime shall be imposed, the
same to be applied in its maximum
period.

Discussion:
When a single act constitutes two or more
grave or less grave felonies, or when an
offense is a necessary means for
committing the other, the penalty for the
most serious crime shall be imposed, to be
applied in its maximum period.

Art. 48 is not applicable in case of special

complex crimes specifically provided for in
the Revised Penal Code like Robbery with
Homicide or Rape or with Arson (Sec. 9,
R.A. No. 7659 amending par. 1 of Article
294), or rape with Homicide (Sec. 11, R.A.
No. 7659 amending Article 335) and
applies only when no specific penalty is
stated in the law.

Art. 48 speaks of two (2) types of complex

crimes: (1) when a single act constitutes
two or more grave or less grave felonies,
otherwise known as compound crime, and
(2) when an offense is a necessary means
of committing the other, which is the
complex crime proper.

An example of No. 1- that is, compound

crime, is when A with a revolver shot B,
missing him but the bullet hit X who is A’s
father. A committed the crime of
Attempted Homicide with Parricide. Or,
when in recklessly driving his car, Y hit the
car of W which in turn hit the car of A, the

97
damages suffered by the two (2) cars
resulting in grave or less grave felonies
(not merely light).

 An example of No. 2- that is,

complex crime proper, is when the
Municipal Treasurer, who received
ten thousand (P10,000.00) from a
taxpayer, placed in the duplicate
original of the receipt the amount of
one thousand (P1,000.00) and then
misappropriated the difference of
nine thousand (P9,000.00) is guilty
of Malversation through
Falsification of a Public Document
because Falsification is a necessary
means to commit Malversation.
 In Complex Crimes, one offense
should not be punishable under
another law. Both must be a
violation of the Revised Penal
Code.

Continuing Crime (Delito Continuado)

 A single crime consisting of a series
of acts arising from one criminal
resolution or intent not susceptible
of division. (Philippine Law
Dictionary by Moreno)
 In People vs. Encila, 76 O.G. 5824,
it was defined as a continuos,
unlawful act or series of acts set on
foot by a single impulse and
operated by an unintermittent force
however long a time it may occupy.
 Where in a train, the accused-twins
run amuck killing eight (8) persons
during that occasion, it was to be a
single crime of Multiple Murders to
be punished by one penalty only.
(People vs. Toling, 62 SCRA 17)
The taking of several cows
belonging to different owners while
admittedly committed through
several acts was held to be punished
only as one crime when done or
perpetrated during the same
occasion.

Art. 49. Penalty to be imposed upon the

principals when the crime committed is
different from that intended. — In cases

98
in which the felony committed is
different from that which the offender
intended to commit, the following rules
shall be observed:
1. If the penalty prescribed for the felony
committed be higher than that
corresponding to the offense which the
accused intended to commit, the penalty
corresponding to the latter shall be
imposed in its maximum period.
2. If the penalty prescribed for the felony
committed be lower than that
corresponding to the one which the
accused intended to commit, the penalty
for the former shall be imposed in its
maximum period.
3. The rule established by the next
preceding paragraph shall not be
applicable if the acts committed by the
guilty person shall also constitute an
attempt or frustration of another crime,
if the law prescribes a higher penalty for
either of the latter offenses, in which
case the penalty provided for the
attempted or the frustrated crime shall
be imposed in its maximum period.

Art. 50. Penalty to be imposed upon

principals of a frustrated crimes— The
penalty next lower in degree than that
prescribed by law for the consummated
felony shall be imposed upon the
principal in a frustrated felony.

Art. 51. Penalty to be imposed upon

principals of attempted crimes.  — A
penalty lower by two degrees than that
prescribed by law for the consummated
felony shall be imposed upon the
principals in an attempt to commit a
felony.

Art. 52. Penalty to be imposed upon

accomplices in consummated crime. —
The penalty next lower in degree than
that prescribed by law for the
consummated shall be imposed upon the
accomplices in the commission of a
consummated felony.

Art. 53. Penalty to be imposed upon

accessories to the commission of a

99
consummated felony. — The penalty
lower by two degrees than that
prescribed by law for the consummated
felony shall be imposed upon the
accessories to the commission of a
consummated felony.

Art. 54. Penalty to imposed upon

accomplices in a frustrated   crime. —
The penalty next lower in degree than
prescribed by law for the frustrated
felony shall be imposed upon the
accomplices in the commission of a
frustrated felony.

Art. 55. Penalty to be imposed upon

accessories of a frustrated   crime.— The
penalty lower by two degrees than that
prescribed by law for the frustrated
felony shall be imposed upon the
accessories to the commission of a
frustrated felony.

Art. 56. Penalty to be imposed upon

accomplices in an attempted crime. —
The penalty next lower in degree than
that prescribed by law for an attempt to
commit a felony shall be imposed upon
the accomplices in an attempt to commit
the felony.

Art. 57. Penalty to be imposed upon

accessories of an attempted crime.— The
penalty lower by two degrees than that
prescribed by law for the attempted
felony shall be imposed upon the
accessories to the attempt to commit a
felony.

Art. 58. Additional penalty to be imposed

upon certain accessories. — Those
accessories falling within the terms of
paragraphs 3 of Article 19 of this Code
who should act with abuse of their public
functions, shall suffer the additional
penalty of absolute perpetual
disqualification if the principal offender
shall be guilty of a grave felony, and that
of absolute temporary disqualification if
he shall be guilty of a less grave felony.

Art. 59. Penalty to be imposed in case of

100
failure to commit the crime because the
means employed or the aims sought are
impossible. — When the person
intending to commit an offense has
already performed the acts for the
execution of the same but nevertheless
the crime was not produced by reason of
the fact that the act intended was by its
nature one of impossible
accomplishment or because the means
employed by such person are essentially
inadequate to produce the result desired
by him, the court, having in mind the
social danger and the degree of
criminality shown by the offender, shall
impose upon him the penalty of arresto
mayor or a fine from 200 to 500 pesos.

Discussion:
IMPOSSIBLE CRIME

An act performed with malice which would

have been an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment or on
account of the employment of inadequate
or ineffectual means. This is the only crime
provided for in Book I of the Revised Penal
Code. The court, having in mind the social
danger and the degree of criminality shown
by the offender shall impose the penalty of
arresto mayor or a fine ranging from two
hundred (P200.00) to five hundred
(P500.00).

The requisites are:

A. The act performed would be an

offense against persons or property
like Parricide, Murder, Homicide,
Abortion, Duel or Physical
Injuries, or Robbery, Brigandage,
Theft, Usurpation, Culpable
Insolvency, Estafa and Other
Deceits, Chattel Mortgage, Arson
and Malicious Mischief.

B. That the act was done with evil

intent.

C. That its accomplishment is

inherently impossible or that the

101
 means employed is either
inadequate or ineffectual.

Examples: Inherent Impossibility

(Legal and Physical)

A saw B lying down whom he

thought was only sleeping. So with
intent to kill, he stabbed B several
times on his chest. It turned out
that B had been dead twenty (20)
or thirty (30) minutes ago.

Legal Impossibility

X stole the ring which Y

inadvertently left on his desk. It
turned out that the said ring was the
one X lost two (2) days ago.

Physical Impossibility

A, B, C, D & E, all armed, proceeded

to the house of X whereupon A
pointed to the room that X used to
occupy and all fired at the said room.
Nobody was hit as no one was inside
the room. This is a case of Impossible
Crime to commit Murder. (Intod vs.
Court of Appeals, et. al., 215 SCRA
52)

Ineffectual means- giving a person a drink

mixed with sugar which accused believed
to be a poison

Inadequate means- if it were really poison,

the quantity is not sufficient to kill

In case of inadequate means, the intended

victim should not suffer any injury
otherwise the crime could be attempted or
frustrated homicide or murder as the case
may be.

Art. 60. Exception to the rules established

in Articles 50 to 57. — The provisions
contained in Articles 50 to 57, inclusive,
of this Code shall not be applicable to
cases in which the law expressly
prescribes the penalty provided for a
frustrated or attempted felony, or to be

102
imposed upon accomplices or
accessories.

Art. 61. Rules for graduating penalties. —

For the purpose of graduating the
penalties which, according to the
provisions of Articles 50 to 57, inclusive,
of this Code, are to be imposed upon
persons guilty as principals of any
frustrated or attempted felony, or as
accomplices or accessories, the following
rules shall be observed:
1. When the penalty prescribed for the
felony is single and indivisible, the
penalty next lower in degrees shall be
that immediately following that
indivisible penalty in the respective
graduated scale prescribed in Article 71
of this Code.
2. When the penalty prescribed for the
crime is composed of two indivisible
penalties, or of one or more divisible
penalties to be impose to their full
extent, the penalty next lower in degree
shall be that immediately following the
lesser of the penalties prescribed in the
respective graduated scale.
3. When the penalty prescribed for the
crime is composed of one or two
indivisible penalties and the maximum
period of another divisible penalty, the
penalty next lower in degree shall be
composed of the medium and minimum
periods of the proper divisible penalty
and the maximum periods of the proper
divisible penalty and the maximum
period of that immediately following in
said respective graduated scale.
4. When the penalty prescribed for the
crime is composed of several periods,
corresponding to different divisible
penalties, the penalty next lower in
degree shall be composed of the period
immediately following the minimum
prescribed and of the two next following,
which shall be taken from the penalty
prescribed, if possible; otherwise from
the penalty immediately following in the
above mentioned respective graduated
scale.
5. When the law prescribes a penalty for
a crime in some manner not especially

103
provided for in the four preceding rules,
the courts, proceeding by analogy, shall
impose corresponding penalties upon
those guilty as principals of the
frustrated felony, or of attempt to
commit the same, and upon accomplices
and accessories.

TABULATION OF THE PROVISIONS

OF THE CHAPTER

Pe Pe Pe Pe Pe
na nal nal nal na
lty ty ty ty lty
Pr to to to to
es be be be be
cri im im im im
be pos pos pos po
fo ed ed ed se
r up up up d
th on on on up
e the the the on
cri pri pri acc th
m nci nci ess e
e pal pal ory ac
in in in ces
a an a so
fru att fru ry
str em str in
ate pte ate an
d d d att
cri cri cri em
me me me pt
, , , ed
an the an cri
d acc d me
acc ess the
om ory acc
pli in om
ce the pli
in co ces
a ns in
co um an
ns ma att
um ted em
ma cri pte
ted me d
cri an cri
me d me
the
acc
om

104
 pli
ces
in
a
fru
str
ate
d
cri
me
.
F De Re Re Pri Pr
i at clu clu sio isi
r h sio sio n on
s n n Ma Co
t Pe Te yor rr
C rpe mp ec
a tua ora ci
s l on
e al
S R Re Pri Pri Ar
e ec clu sio sio re
c lu sio n n sto
o si n Ma Co M
n on Te yor rre ay
d Pe mp cci or
Crp ora on
a et l al
s ua
e to
De
at
h
T R Pri Pri Ar Fi
h ec sio sio res ne
i lu n n to an
r si Ma cor Ma d 
d on yor rec yor Ar
CTe in cio in re
a m its nal it s sto
s po ma in ma M
e ra xi its xi ay
lin mu ma mu or 
its m xi m in
m per mu per its
ax iod m iod mi
im to  per to  ni
u rec iod pri m
m lus to  sio u
pe ion pri n m
ri te sio cor an
od mp n rec d

105
 to ora ma cio me
de l in yor nal di
at its in in u
h me its its m
diu me me pe
m diu diu rio
per m m ds
iod per per
iod iod
F Pr Pri Ar Fin Fi
o isi sio res e ne.
u on n to an
r M cor ma d 
t ay rec yor Ar
h or  cio in res
Cin nal its to
a its in ma Ma
s m its xi yor
e ax ma mu in
im xi m its
u mu per mi
m m iod ni
pe per to  mu
ri iod pri m
od to  sio an
to  pri n d
re sio cor me
cl n rec diu
us ma cio m
io yor nal per
n in in iod
te its its s
m me me
po diu diu
ra m m
l per per
in iod iod
its . .
m
ed
iu
m
pe
ri
od
.

Section Two. — Rules for the application

of penalties with regard to the mitigating
and aggravating circumstances, and
habitual delinquency.

106
Art. 62. Effect of the attendance of
mitigating or aggravating circumstances
and of habitual delinquency. —
Mitigating or aggravating circumstances
and habitual delinquency shall be taken
into account for the purpose of
diminishing or increasing the penalty in
conformity with the following rules:
1. Aggravating circumstances which in
themselves constitute a crime specially
punishable by law or which are included
by the law in defining a crime and
prescribing the penalty therefor shall not
be taken into account for the purpose of
increasing the penalty.
2. The same rule shall apply with respect
to any aggravating circumstance
inherent in the crime to such a degree
that it must of necessity accompany the
commission thereof.
3. Aggravating or mitigating
circumstances which arise from the
moral attributes of the offender, or from
his private relations with the offended
party, or from any other personal cause,
shall only serve to aggravate or mitigate
the liability of the principals,
accomplices and accessories as to whom
such circumstances are attendant.
4. The circumstances which consist in
the material execution of the act, or in
the means employed to accomplish it,
shall serve to aggravate or mitigate the
liability of those persons only who had
knowledge of them at the time of the
execution of the act or their cooperation
therein.
5. Habitual delinquency shall have the
following effects: 
 
(a) Upon a third conviction the culprit
shall be sentenced to the penalty
provided by law for the last crime of
which he be found guilty and to the
additional penalty of prision
correccional in its medium and
maximum periods;
(b) Upon a fourth conviction, the culprit
shall be sentenced to the penalty
provided for the last crime of which he
be found guilty and to the additional
penalty of prision mayor in its minimum

107
and medium periods; and
(c) Upon a fifth or additional conviction,
the culprit shall be sentenced to the
penalty provided for the last crime of
which he be found guilty and to the
additional penalty of prision mayor in its
maximum period to reclusion temporal
in its minimum period.
Notwithstanding the provisions of this
article, the total of the two penalties to
be imposed upon the offender, in
conformity herewith, shall in no case
exceed 30 years.
For the purpose of this article, a person
shall be deemed to be habitual
delinquent, if within a period of ten
years from the date of his release or last
conviction of the crimes of serious or less
serious physical injuries, robo, hurto,
estafa or falsification, he is found guilty
of any of said crimes a third time or
oftener.

Art. 63. Rules for the application of

indivisible penalties. — In all cases in
which the law prescribes a single
indivisible penalty, it shall be applied by
the courts regardless of any mitigating
or aggravating circumstances that may
have attended the commission of the
deed.
In all cases in which the law prescribes a
penalty composed of two indivisible
penalties, the following rules shall be
observed in the application thereof:
1. When in the commission of the deed
there is present only one aggravating
circumstance, the greater penalty shall
be applied.
2. When there are neither mitigating nor
aggravating circumstances and there is
no aggravating circumstance, the lesser
penalty shall be applied.
3. When the commission of the act is
attended by some mitigating
circumstances and there is no
aggravating circumstance, the lesser
penalty shall be applied.
4. When both mitigating and
aggravating circumstances attended the
commission of the act, the court shall
reasonably allow them to offset one

108
another in consideration of their number
and importance, for the purpose of
applying the penalty in accordance with
the preceding rules, according to the
result of such compensation.

Discussion:
APPLICATION OF MITIGATING
AND AGGRAVATING
CIRCUMSTANCES

The court must first consider whether the

penalties imposable are Divisible or
Indivisible. Indivisible penalties are those
which have no fixed duration like death,
reclusion perpetua, perpetual absolute or
special disqualification, and public censure;
while Divisible penalties are those having
fixed duration and can be divided into three
(3) periods).

In case the law prescribes two indivisible

penalties, like reclusion perpetua to death
(the penalty for Infanticide, Parricide,
Murder, etc.), the presence of one
mitigating circumstance would result in the
application of the lesser penalty, while the
presence of an aggravating circumstance
would mean the application of the greater
penalty. If there is no mitigating and no
aggravating circumstance, the lesser
penalty shall be applied. If there be present
both mitigating and aggravating
circumstances, the court shall reasonably
allow them to offset one another. (Art. 63)

When the penalty is single indivisible, like

the penalty for Piracy under Article 122 as
amended by Sec. 3, R.A. No. 7659- which
is reclusion perpetua, such penalty shall be
applied regardless of any mitigating or
aggravating circumstance present, except,
in case of privileged mitigating
circumstance such as minority, in which
case, the penalty may be reduced by a
degree. Such is also the rule in case of two
(2) indivisible penalties like reclusion
perpetua to death. If the mitigating
circumstance in attendance is privilege
mitigating, the penalty shall be lowered by
one degree. Thus, when the crime proven is
Murder, the penalty is reclusion perpetua to

109
death under Art. 248, Revised Penal Code
as amended by Sec. 6, R.A. No. 7659), and
the accused is a minor below sixteen (16)
years old, the penalty shall be reclusion
temporal.

Art. 64. Rules for the application of

penalties which contain three periods. —
In cases in which the penalties
prescribed by law contain three periods,
whether it be a single divisible penalty or
composed of three different penalties,
each one of which forms a period in
accordance with the provisions of
Articles 76 and 77, the court shall
observe for the application of the penalty
the following rules, according to whether
there are or are not mitigating or
aggravating circumstances:
1. When there are neither aggravating
nor mitigating circumstances, they shall
impose the penalty prescribed by law in
its medium period.
2. When only a mitigating circumstances
is present in the commission of the act,
they shall impose the penalty in its
minimum period.
3. When an aggravating circumstance is
present i
n the commission of the act, they shall
impose the penalty in its maximum
period.
4. When both mitigating and
aggravating circumstances are present,
the court shall reasonably offset those of
one class against the other according to
their relative weight.
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 law, in the
period that it may deem applicable,
according to the number and nature of
such circumstances.
6. Whatever may be the number and
nature of the aggravating circumstances,
the courts shall not impose a greater
penalty than that prescribed by law, in
its maximum period.
7. Within the limits of each period, the
court shall determine the extent of the

110
penalty according to the number and
nature of the aggravating and mitigating
circumstances and the greater and lesser
extent of the evil produced by the crime.

Discussion:

When the penalty is divisible and there is

neither aggravating nor mitigating
circumstance, the penalty shall be applied
in medium period. If there is one ordinary
mitigating circumstance it shall be applied
in its minimum period, and if there is one
(1) aggravating circumstance, the penalty
shall be imposed in its maximum period. If
the mitigating circumstance present is
privileged one, the reduction of the penalty
shall be by degree, not only by period. If
there are both mitigating and aggravating
circumstances, the court shall reasonably
offset them according to their relative
weight.

If the commission of the crime was

attended by both mitigating and
aggravating circumstances, the rules in Art.
62 are as follows:
1. Aggravating circumstances
which in themselves
constitute a crime specially
punishable by law or which
are included by the law in
defining a crime shall not to
be taken into account for the
purpose of increasing the
penalty.
Example: “By means of
fire” (Art. 14, par. 12) shall
not be considered in the
crime of Arson. That the
crime was committed in the
dwelling of the offended
party (Art. 14, par. 3) shall
not aggravate the liability of
the offender convicted of
Trespass to Dwelling.
So also, “by means of
poison” (Art. 14, par. 4) will
not be considered to
increase the liability in
Murder qualified by using
poison.

111
2. Aggravating circumstances
which are inherent in the
crime to such a degree that
they must be of necessity
accompany the crime shall
not increase the penalty.
Example: Abuse of
confidence (Art. 14, par. 4)
shall no longer be
considered in Qualified
Theft with grave abuse of
confidence to increase the
penalty.
3. Aggravating or mitigating
circumstances which arise
from the moral attributes of
the offender or from his
private relations with the
offended party or from any
personal cause shall serve to
aggravate or mitigate the
liability of the culprit to
whom they are attendant.
Example: X,Y and Z,
conspiring with each other,
killed W who is X’s brother-
in-law. Z committed it with
evident premeditation while
Y is a recidivist. The
aggravating circumstance of
evident premeditation
applies only to Z, the fact
that the victim is X’s
brother-in-law would affect
the liability only of X while
recidivism which is personal
to Y shall increase the
liability of Y only.
4. The circumstances which
consist in the material
execution of the act, or in
the means employed to
accomplish it shall
aggravate or mitigate the
liability of those who had
knowledge of them at the
time of the execution of the
act.
Example: A, B and C agreed
to kill X and so armed with
guns, they proceeded to the
house of the latter

112
 whereupon A told B and C
that he would just stay in the
yard to prevent any relative
of X from helping the
victim. When B and C
entered the room of X, and
saw him sleeping, it was C
who shot him. The treachery
that attended the
commission of the crime
shall also affect B and not
only C who treacherously
killed X in his sleep because
B had knowledge of the
employment of the
treacherous act being
present actually during the
shooting. A’s liability is not
aggravated by treachery as
he had no knowledge of it,
being in the yard.
So also, A, B and C agreed
to kill X and in a drinking
spree, A saw the opportunity
and put poison in the glass
of X. B saw A pouring the
poison while C did not see it
and was unaware of it. X
died after taking the
poisonous drink. The
aggravating circumstance of
“by means of poison”
affects only A and B.

Art. 65. Rule in cases in which the

penalty is not composed of three
periods. — In cases in which the penalty
prescribed by law is not composed of
three periods, the courts shall apply the
rules contained in the foregoing articles,
dividing into three equal portions of time
included in the penalty prescribed, and
forming one period of each of the three
portions.

Art. 66. Imposition of fines. — In

imposing fines the courts may fix any
amount within the limits established by
law; in fixing the amount in each case
attention shall be given, not only to the
mitigating and aggravating
circumstances, but more particularly to

113
the wealth or means of the culprit.

Art. 67. Penalty to be imposed when not

all the requisites of exemption of the
fourth circumstance of Article 12 are
present.— When all the conditions
required in circumstances Number 4 of
Article 12 of this Code to exempt from
criminal liability are not present, the
penalty of arresto mayor in its maximum
period to prision correccional in its
minimum period shall be imposed upon
the culprit if he shall have been guilty of
a grave felony, and arresto mayor in its
minimum and medium periods, if of a
less grave felony.

Art. 68. Penalty to be imposed upon a

person under eighteen years of age. —
When the offender is a minor under
eighteen years and his case is one coming
under the provisions of the paragraphs
next to the last of Article 80 of this Code,
the following rules shall be observed:
1. Upon a person under fifteen but over
nine years of age, who is not exempted
from liability by reason of the court
having declared that he acted with
discernment, a discretionary penalty
shall be imposed, but always lower by
two degrees at least than that prescribed
by law for the crime which he
committed.
2. Upon a person over fifteen and under
eighteen years of age the penalty next
lower than that prescribed by law shall
be imposed, but always in the proper
period.

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 in the several cases mentioned in
Article 11 and 12, provided that the
majority of such conditions be present.
The courts shall impose the penalty in
the period which may be deemed proper,

114
in view of the number and nature of the
conditions of exemption present or
lacking.

Art. 70. Successive service of sentence. —

When the culprit has to serve two or
more penalties, he shall serve them
simultaneously if the nature of the
penalties will so permit otherwise, the
following rules shall be observed:
In the imposition of the penalties, the
order of their respective severity shall be
followed so that they may be executed
successively or as nearly as may be
possible, should a pardon have been
granted as to the penalty or penalties
first imposed, or should they have been
served out.

For the purpose of applying the

provisions of the next preceding
paragraph the respective severity of the
penalties shall be determined in
accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification.
11. Suspension from public office, the
right to vote and be voted for, the right
to follow a profession or calling, and
12. Public censure.
Notwithstanding the provisions of the
rule next preceding, the maximum
duration of the convict's sentence shall
not be more than three-fold the length of
time corresponding to the most severe of
the penalties imposed upon him. No
other penalty to which he may be liable
shall be inflicted after the sum total of
those imposed equals the same
maximum period.
Such maximum period shall in no case
exceed forty years.
In applying the provisions of this rule
the duration of perpetual penalties (pena

115
perpetua) shall be computed at thirty
years. (As amended).

Art. 71. Graduated scales. — In the case

in which the law prescribed a penalty
lower or higher by one or more degrees
than another given penalty, the rules
prescribed in Article 61 shall be
observed in graduating such penalty.
The lower or higher penalty shall be
taken from the graduated scale in which
is comprised the given penalty.
The courts, in applying such lower or
higher penalty, shall observe the
following graduated scales:
SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine. 
 
SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the
right to vote and be
voted for, the right to follow a profession
or calling,
4. Public censure,
5. Fine.

Art. 72. Preference in the payment of the

civil liabilities. — The civil liabilities of a
person found guilty of two or more
offenses shall be satisfied by following
the chronological order of the dates of
the judgments rendered against him,
beginning with the first in order of time.
 
Section Three. — Provisions common in
the last two preceding sections

Art. 73. Presumption in regard to the

imposition of accessory penalties . —
Whenever the courts shall impose a
penalty which, by provision of law,

116
carries with it other penalties, according
to the provisions of Articles 40, 41, 42, 43
and 44 of this Code, it must be
understood that the accessory penalties
are also imposed upon the convict.

Art. 74. Penalty higher than reclusion

perpetua in certain cases. — In cases in
which the law prescribes a penalty
higher than another given penalty,
without specially designating the name
of the former, if such higher penalty
should be that of death, the same penalty
and the accessory penalties of Article 40,
shall be considered as the next higher
penalty.

Art. 75. Increasing or reducing the

penalty of fine by one or more degrees. —
Whenever it may be necessary to
increase or reduce the penalty of fine by
one or more degrees, it shall be
increased or reduced, respectively, for
each degree, by one-fourth of the
maximum amount prescribed by law,
without however, changing the
minimum.
The same rules shall be observed with
regard of fines that do not consist of a
fixed amount, but are made
proportional.

Art. 76. Legal period of duration of

divisible penalties. — The legal period of
duration of divisible penalties shall be
considered as divided into three parts,
forming three periods, the minimum, the
medium, and the maximum in the
manner shown in the following table:

TABLE SHOWING THE DURATION OF

DIVISIBLE PENALTIES AND THE
TIME INCLUDED IN EACH OF THEIR
PERIODS

117
 Penalti Ti Ti Ti Ti
es m m m me
e e e inc
in in in lu
cl cl cl de
  ud ud ud d
ed ed ed in
in in in its
th its its ma
e mi m xi
pe ni ed m
na m iu u
lty u m m
in m pe
its pe ri
en rio od
tir d
et
y
Reclusi Fr Fr Fr Fr
on o o o o
tempor m m m m
al 12 12 14 17
ye ye ye ye
Art. 77. ar ars ar ars When the
penalty is s an s, , 4 a
complex an d 8 m one
d 1 m on
1 da on ths
da y th an
y to s d 1
to 14 an da
20 ye d y
ye ars 1 to
ar an da 20
s. d y ye
8 to ars
m 17 .
on ye
ths ar
. s
an
d
4
m
on
th
s.
Prision Fr Fr Fr Fr
mayor, o o o o
absolut m m m m
e 6 6 8 10
disqual ye ye ye ye
ificatio ar ars ar ars
n and s an s an
special an d an d 1
tempor d 1 d da
ary 1 da 1 y
disqual da
118y da to
ificatio y to y 12
n to 8 to ye
12 ye 10 ars
composed of three distinct penalties. — In
cases in which the law prescribes a
penalty composed of three distinct
penalties, each one shall form a period;
the lightest of them shall be the
minimum the next the medium, and the
most severe the maximum period.
Whenever the penalty prescribed does
not have one of the forms specially
provided for in this Code, the periods
shall be distributed, applying by analogy
the prescribed rules.
 
Chapter Five
EXECUTION AND SERVICE OF
PENALTIES
Section One. — General Provisions

Art. 78. When and how a penalty is to be

executed. — No penalty shall be executed
except by virtue of a final judgment.
A penalty shall not be executed in any
other form than that prescribed by law,
nor with any other circumstances or
incidents than those expressly
authorized thereby.

In addition to the provisions of the law,

the special regulations prescribed for the
government of the institutions in which
the penalties are to be suffered shall be
observed with regard to the character of
the work to be performed, the time of its
performance, and other incidents
connected therewith, the relations of the
convicts among themselves and other
persons, the relief which they may
receive, and their diet.

The regulations shall make provision for

the separation of the sexes in different
institutions, or at least into different
departments and also for the correction
and reform of the convicts.

Art. 79. Suspension of the execution and

service of the penalties in case of
insanity. — When a convict shall become
insane or an imbecile after final sentence
has been pronounced, the execution of
said sentence shall be suspended only
with regard to the personal penalty, the

119
provisions of the second paragraph of
circumstance number 1 of Article 12
being observed in the corresponding
cases.
If at any time the convict shall recover
his reason, his sentence shall be
executed, unless the penalty shall have
prescribed in accordance with the
provisions of this Code.
The respective provisions of this section
shall also be observed if the insanity or
imbecility occurs while the convict is
serving his sentence.

Art. 80. Suspension of sentence of minor

delinquents. — Whenever a minor of
either sex, under sixteen years of age at
the date of the commission of a grave or
less grave felony, is accused thereof, the
court, after hearing the evidence in the
proper proceedings, instead of
pronouncing judgment of conviction,
shall suspend all further proceedings
and shall commit such minor to the
custody or care of a public or private,
benevolent or charitable institution,
established under the law of the care,
correction or education of orphaned,
homeless, defective, and delinquent
children, or to the custody or care of any
other responsible person in any other
place subject to visitation and
supervision by the Director of Public
Welfare or any of his agents or
representatives, if there be any, or
otherwise by the superintendent of
public schools or his representatives,
subject to such conditions as are
prescribed herein below until such
minor shall have reached his majority
age or for such less period as the court
may deem proper. 
The court, in committing said minor as
provided above, shall take into
consideration the religion of such minor,
his parents or next of kin, in order to
avoid his commitment to any private
institution not under the control and
supervision of the religious sect or
denomination to which they belong.

The Director of Public Welfare or his

120
duly authorized representatives or
agents, the superintendent of public
schools or his representatives, or the
person to whose custody or care the
minor has been committed, shall submit
to the court every four months and as
often as required in special cases, a
written report on the good or bad
conduct of said minor and the moral and
intellectual progress made by him.

The suspension of the proceedings

against a minor may be extended or
shortened by the court on the
recommendation of the Director of
Public Welfare or his authorized
representative or agents, or the
superintendent of public schools or his
representatives, according as to whether
the conduct of such minor has been good
or not and whether he has complied with
the conditions imposed upon him, or not.
The provisions of the first paragraph of
this article shall not, however, be
affected by those contained herein.

If the minor has been committed to the

custody or care of any of the institutions
mentioned in the first paragraph of this
article, with the approval of the Director
of Public Welfare and subject to such
conditions as this official in accordance
with law may deem proper to impose,
such minor may be allowed to stay
elsewhere under the care of a
responsible person.

If the minor has behaved properly and

has complied with the conditions
imposed upon him during his
confinement, in accordance with the
provisions of this article, he shall be
returned to the court in order that the
same may order his final release.

In case the minor fails to behave

properly or to comply with the
regulations of the institution to which he
has been committed or with the
conditions imposed upon him when he
was committed to the care of a
responsible person, or in case he should

121
be found incorrigible or his continued
stay in such institution should be
inadvisable, he shall be returned to the
court in order that the same may render
the judgment corresponding to the crime
committed by him.

The expenses for the maintenance of a

minor delinquent confined in the
institution to which he has been
committed, shall be borne totally or
partially by his parents or relatives or
those persons liable to support him, if
they are able to do so, in the discretion of
the court; Provided, That in case his
parents or relatives or those persons
liable to support him have not been
ordered to pay said expenses or are
found indigent and cannot pay said
expenses, the municipality in which the
offense was committed shall pay one-
third of said expenses; the province to
which the municipality belongs shall pay
one-third; and the remaining one-third
shall be borne by the National
Government: Provided, however, That
whenever the Secretary of Finance
certifies that a municipality is not able to
pay its share in the expenses above
mentioned, such share which is not paid
by said municipality shall be borne by
the National Government. Chartered
cities shall pay two-thirds of said
expenses; and in case a chartered city
cannot pay said expenses, the internal
revenue allotments which may be due to
said city shall be withheld and applied in
settlement of said indebtedness in
accordance with section five hundred
and eighty-eight of the Administrative
Code.
 
Section Two. — Execution of principal
penalties.

Art. 81. When and how the death penalty

is to be executed. — The death sentence
shall be executed with reference to any
other and shall consist in putting the
person under sentence to death by
electrocution. The death sentence shall
be executed under the authority of the

122
Director of Prisons, endeavoring so far
as possible to mitigate the sufferings of
the person under sentence during
electrocution as well as during the
proceedings prior to the execution.
If the person under sentence so desires,
he shall be anaesthetized at the moment
of the electrocution.

Art. 82. Notification and execution of the

sentence and assistance to the culprit. —
The court shall designate a working day
for the execution but not the hour
thereof; and such designation shall not
be communicated to the offender before
sunrise of said day, and the execution
shall not take place until after the
expiration of at least eight hours
following the notification, but before
sunset. During the interval between the
notification and the execution, the
culprit shall, in so far as possible, be
furnished such assistance as he may
request in order to be attended in his last
moments by priests or ministers of the
religion he professes and to consult
lawyers, as well as in order to make a
will and confer with members of his
family or persons in charge of the
management of his business, of the
administration of his property, or of the
care of his descendants.

Art. 83. Suspension of the execution of

the death sentence. — The death sentence
shall not be inflicted upon a woman
within the three years next following the
date of the sentence or while she is
pregnant, nor upon any person over
seventy years of age. In this last case, the
death sentence shall be commuted to the
penalty of reclusion perpetua with the
accessory penalties provided in Article
40.

Art. 84. Place of execution and persons

who may witness the same.— The
execution shall take place in the
penitentiary of Bilibid in a space closed
to the public view and shall be witnessed
only by the priests assisting the offender
and by his lawyers, and by his relatives,

123
not exceeding six, if he so request, by the
physician and the necessary personnel of
the penal establishment, and by such
persons as the Director of Prisons may
authorize.

Art. 85.  Provisions relative to the corpse

of the person executed and its burial. —
Unless claimed by his family, the corpse
of the culprit shall, upon the completion
of the legal proceedings subsequent to
the execution, be turned over to the
institute of learning or scientific research
first applying for it, for the purpose of
study and investigation, provided that
such institute shall take charge of the
decent burial of the remains. Otherwise,
the Director of Prisons shall order the
burial of the body of the culprit at
government expense, granting
permission to be present thereat to the
members of the family of the culprit and
the friends of the latter. In no case shall
the burial of the body of a person
sentenced to death be held with pomp.

Art. 86. Reclusion perpetua, reclusion

temporal, prision mayor, prision
correccional and arresto mayor. — The
penalties of reclusion perpetua, reclusion
temporal, prision mayor, prision
correccional and arresto mayor, shall be
executed and served in the places and
penal establishments provided by the
Administrative Code in force or which
may be provided by law in the future.

Art. 87. Destierro. — Any person

sentenced to destierro shall not be
permitted to enter the place or places
designated in the sentence, nor within
the radius therein specified, which shall
be not more than 250 and not less than
25 kilometers from the place designated.

Art. 88. Arresto menor. — The penalty of

arresto menor shall be served in the
municipal jail, or in the house of the
defendant himself under the surveillance
of an officer of the law, when the court
so provides in its decision, taking into
consideration the health of the offender

124
and other reasons which may
seem satisfactory to it.
 
 
Title Four
EXTINCTION OF CRIMINAL
LIABILITY
Chapter One
TOTAL EXTINCTION OF CRIMINAL
LIABILITY
Art. 89. How criminal liability is totally
extinguished. — Criminal liability is
totally extinguished:
1. By the death of the convict, as to the
personal penalties and as to pecuniary
penalties, liability therefor is
extinguished only when the death of the
offender occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely
extinguishes the penalty and all its
effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended
woman, as provided in Article 344 of this
Code.

Discussion:

Criminal liability is totally extinguished by:

1. Death of the convict;
2. Service of the sentence;
3. Amnesty;
4. Absolute Pardon;
5. Prescription of the crime;
6. Prescription of the penalty;
7. Marriage of the offended woman as
provided for in Art. 344.

On the other hand, it is partially

extinguished by:
1. Conditional Pardon;
2. Commutation of the sentence; and
3. Good conduct allowances which the
culprit may earn while serving sentence.

The grant of probation may be considered

as a form of extinction of criminal liability
which was bestowed while accused who
has never been incarcerated, was out on

125
bail, may thus be categorized as total
extinction thereof. However, if it was
granted after the conviction of the accused
who was in jail, it can be considered as
partial extinction only. It must be noted
however, that unlike in service of sentence,
in probation, the probationer is still
required to report to a Probation Officer at
a certain period until the duration of the
probation period.

1. Death of the Accused

If the accused dies, at whatever stage of the

case, personal penalty is totally and
permanently extinguished. You cannot
imprison a dead person. With respect to
pecuniary liabilities like fine or costs of the
proceedings, they are extinguished only
when the death of the offender occurs
before final judgment.

With respect to civil liability of the

accused, if he dies after the judgment has
become final, the same is not extinguished
and it can be enforced against the estate of
the deceased. If he dies however, before
promulgation of sentence, or even after, but
the same is not yet final, on account of an
appeal or a motion for reconsideration duly
filed, the civil liability is also extinguished.
The offended party nevertheless is allowed
to file a separate civil action, this time
based on contract, quasi-contract, law or
quasi- delicts (the other sources of
obligation under Article 1157 of the Civil
Code). The statute of limitations on the
civil liability in such a case is deemed
interrupted during the pendency of the
criminal case. (People vs. Bayotas, 236
SCRA 239)

2. Service of Sentence

When the accused has fully served his

sentence, his personal or criminal liability
is to be considered permanently terminated.

3. Amnesty and Absolute Pardon

Amnesty is a sovereign act of oblivion for

past acts, granted by the Government to a

126
certain class of persons, charged or guilty
of crime, usually political offenses, and
often conditioned upon their return to
obedience and duty within a prescribed
time. (Black’s Law Dictionary, 4th Ed., p.
108)

Pardon is an act of grace which exempts

the individual on whom it is bestowed from
the punishment the law inflicts for the
crime he has committed. (De Leon vs. Dir.
Prisons, 31 Phil. 60)

It is the Chief Executive who can grant

both but in the case of Amnesty, it needs
concurrence of Congress. While pardon
looks forward and relieves the offender
from the consequences of an offense of
which he has been convicted. Amnesty
looks backward and abolishes and puts into
oblivion the offense itself; it so overlooks
and obliterates the offense with which he is
charged that the person released by
amnesty stands before the law precisely as
though he had committed no offense.
(Barrioquinto, et. al. vs. Fernandez, et. al.,
82 Phil. 642). Thus, Art. 89 says “… by
amnesty which completely extinguishes the
penalty and all its effects.”

Thus, if A was convicted of Homicide and

was granted Absolute Pardon, and later on
committed Murder or Homicide, he will be
considered a recidivist. However, if his first
offense is Rebellion and was granted
amnesty and later on was found guilty of
sedition, recidivism cannot be considered
against him.
Pardon, to be considered as a mode of
extinction of criminal liability should be
pardon by the President of the Philippines
and not pardon by the offended party which
only extinguishes civil liability. (Art. 23,
RPC) Pardon by the offended party,
however, in cases of Adultery,
Concubinage, Rape, Acts of
Lasciviousness, Seduction or Abduction
when granted before the institution of the
criminal action also extinguishes criminal
liability. (Art. 344, RPC) Under R.A. No.
8353, in the crime of rape, if it is the
husband who is the offender, the

127
subsequent forgiveness by the wife shall
extinguish the criminal action or the
penalty except when the marriage is void
ab initio. (Sec. 2)

Art. 90. Prescription of crime. — Crimes

punishable by death, reclusion perpetua
or reclusion temporal shall prescribe in
twenty years.
Crimes punishable by other afflictive
penalties shall prescribe in fifteen years.
Those punishable by a correctional
penalty shall prescribe in ten years; with
the exception of those punishable by
arresto mayor, which shall prescribe in
five years.
The crime of libel or other similar
offenses shall prescribe in one year.
The crime of oral defamation and
slander by deed shall prescribe in six
months.
Light offenses prescribe in two months.
When the penalty fixed by law is a
compound one, the highest penalty shall
be made the basis of the application of
the rules contained in the first, second
and third paragraphs of this article. (As
amended by RA 4661, approved June 19,
1966).

Discussion
PRESCRIPTION OF CRIME

It is the forfeiture or loss of the right of the

State to prosecute the offender or file
criminal action after the lapse if a certain
period of time. (See The Revised Penal
Code, Book I by Luis B. Reyes) Crimes
punishable by death, reclusion perpetua or
reclusion temporal shall prescribe in
twenty (20) years; those punishable by
other afflictive penalties (like prision
mayor), in fifteen (15) years; and those by
correctional penalty, in ten (10) years
except those by arresto mayor which shall
prescribe in five (5) years while grave oral
defamation and grave slander by deed
prescribe in six (6) months. Light offenses
shall prescribe in two (2) months. When
the penalty imposable is a compound one,
the highest penalty shall be made the basis
of the application of the rules on

128
prescription. (Art. 90)’

The period of prescription shall commence

to run from the day of discovery of the
crime by the offended party, the authorities
or their agents. (Art. 91) Thus, if A
witnessed the killing of X by B, and since
A not being related to X, got scared, and
did not report the crime to the authority, the
crime (Murder or Homicide) will never
prescribe. But if A is the son of X, or even
if not related to X, he reported to the police
authorities what he witnessed, and no
complaint is filed in court within twenty
(20) years, then the crime will prescribe,
and after twenty (20) years and one (1) day
from the discovery of the crime, no charge
can be filed against B anymore.

The period shall be interrupted by the filing

of the complaint or information, and shall
commence to run again when such
proceedings terminate without the accused
being convicted or acquitted, or are
unjustifiably stopped for any reason not
imputed to him.

The filing of the complaint even with the

Fiscal’s office only (Francisco vs. Court of
Appelas, 122 SCRA 538; Calderon-Bargas
vs. RTC-Pasig, Mtero Manila, 227 SCRA
56) or with the court shall interrupt the
prescriptive period. Thus, in the example
above, if B was charged before the court or
the prosecutor’s office on the tenth (10th)
year from discovery, the prescriptive period
is interrupted. If one (1) year after the filing
of the complaint or information, the
proceedings were stopped without fault on
the part of B, or was dismissed, the period
shall begin to run again, and after nine (9)
years and one (1) day, the crime of B shall
be deemed prescribed since the ten (10)-
year period that lapsed without filing any
criminal complaint shall be considered so
that only nine (9) years and one (1) day
would be needed to complete the
prescriptive period of twenty (20) years.

Criminal cases, however, which are

covered by the Rule on Summary
Procedure under the Rules of Court must

129
be filed with the Court, otherwise, they
shall prescribe even if filed with the
Fiscal’s office, after the lapse of sixty (60)
days. (Zaldivia vs. Reyes, et. al., 211 SCRA
277)

Prescription of Falsification of Public

Documents shall begin from registration of
the falsified document with the Register of
Deeds since the registration is the official
notice to the whole world; but the crime of
Bigamy shall commence to prescribe from
discovery by the offended party or the
authorities of the crime, and not from the
time the bigamous marriage was registered
with the Local Civil Registrar since
marriage is not property which would be
registered in the place where it is located,
and a bigamous marriage is generally
entered into in a place where the offender is
not known to be a married person, in order
to conceal his legal impediment. (Sermonia
vs. Court of Appeals, et. al., 233 SCRA
155)

Even if libel is punishable by prision

correccional, it prescribes not in ten (10)
years but in one (1) year as expressly
provided for in Article 90. With respect to
offenses punished with a fine, to determine
their prescriptive period, such fine should
not be reduced or converted into a prison
term and should be considered as afflictive,
correctional or light under Article 26 of the
Revised Penal Code.

Art. 91. Computation of prescription of

offenses. — The period of prescription
shall commence to run from the day on
which the crime is discovered by the
offended party, the authorities, or their
agents, and shall be interrupted by the
filing of the complaint or information,
and shall commence to run again when
such proceedings terminate without the
accused being convicted or acquitted, or
are unjustifiably stopped for any reason
not imputable to him.
The term of prescription shall not run
when the offender is absent from the
Philippine Archipelago.

130
Discussion:

Art. 92. When and how penalties

prescribe. — The penalties imposed by
final sentence prescribe as follows:
1. Death and reclusion perpetua, in
twenty years;
2. Other afflictive penalties, in fifteen
years;
3. Correctional penalties, in ten years;
with the exception of the penalty of
arresto mayor, which prescribes in five
years;
4. Light penalties, in one year.

Discussion:

Prescription of the penalty is the loss or

forfeiture of the right of the State to
execute the final sentence of conviction
after the lapse of a certain period of time.

The penalties of death and reclusion

perpetua prescribe in twenty (20) years;
other afflictive penalties (like reclusion
temporal and prision mayor), in fifteen
(15) years while correctional penalties
except arresto mayor which prescribes in
five (5) years, prescribe in ten (10) years.
Light penalties shall prescribe in one (1)
year.

The penalty, to be subject of prescription

must have been imposed by final judgment.
Thus, if A after conviction by the trial
court, appealed the decision, and escaped
from jail where he has been detained
during trial, the penalty will never
prescribe. In prescription of penalty, the
offender must be serving sentence, and
must have escaped, committing the crime
of Evasion of Sentence. From the day he
escaped, the prescription of penalty
commences to run. If the penalty imposed
is death or reclusion temporal, for fifteen
(15) years. If within the prescriptive period
he should give himself up, or be captured.
Or would go to a foreign country with
which the Philippines has no extradition
treaty, or should commit another crime,
then the period is interrupted and the
penalty will not prescribe anymore.

131
Problem:

A was sentenced to reclusion temporal for

Homicide and while serving sentence,
escaped on January 1, 1980. He must be
able to elude authorities up to January 2,
1995 to consider the penalty prescribed.
Suppose he was arrested after five (5) years
of escape- that is, on January 1, 1985, and
was able to re-escape on January 1, 1986,
he must hide for just ten (10) more years.
The five (5) year period during his first
escape must have to be considered for
purposes of completing the fifteen (15)
year period for the prescription of the
penalty of Homicide.

Reason for Prescription of the Crime

and/ or Penalty

During the period that the accused/ convict

escaped, he lives a life of a hunted animal,
hiding mostly in the mountains and forest
in constant mortal fear of being caught. His
life, far from being happy, comfortable and
peaceful, is reduced to a mere existence
filled with fear, discomfort, loneliness and
misery. As the distinguished penal
commentator Viada said, the convict who
evades sentence is sometimes sufficiently
punished by his voluntary and self-imposed
punishment, and at times, his voluntary
exile is more grievous than the sentence he
was trying to avoid. And all the time he has
to utilize every ingenuity and means to
outwit the Government agencies bent on
recapturing him. For all this, the
Government extends to him a sort of
condonation or amnesty. (See Infante vs.
Provincial Warden, 92 Phil. 310)

Marriage of the Offended Party with the

Offender

In cases of Seduction, Abduction, Rape and

Acts of Lasciviousness (SARA), the
marriage of the offender with the offended
party shall extinguish the criminal action or
remit the penalty already imposed upon
him. The provision of this paragraph shall
also be applicable to the co-principals,

132
accomplices and accessories after the fact
of the above-named crimes. (Art. 344, last
par.)

In other crimes, marriage of the

complainant and the accused does not
extinguish criminal liability. In the crimes
of SARA (Seduction, Abduction, Rape and
Acts of Lasciviousness), the marriage must
be entered into in good faith, and if
undertaken only to avoid criminal
prosecution, such marriage does not result
in the extinction of penal liability. (People
vs. Santiago, 51 Phil. 68) If done in good
faith however, the marriage benefits the
accessory or accomplice even if he is
already serving sentence. (Laceste vs.
Santos, 56 Phil. 472) Under R.A. No. 8353,
the subsequent valid marriage between the
offender and the offended party in the
crime of rape shall extinguish the criminal
action or the penalty imposed.

Art. 93. Computation of the prescription

of penalties. — The period of
prescription of penalties shall commence
to run from the date when the culprit
should evade the service of his sentence,
and it shall be interrupted if the
defendant should give himself up, be
captured, should go to some foreign
country with which this Government has
no extradition treaty, or should commit
another crime before the expiration of
the period of prescription.

Chapter Two
PARTIAL EXTINCTION OF
CRIMINAL LIABILITY

Art. 94. Partial Extinction of criminal

liability. — Criminal liability is
extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which
the culprit may earn while he is serving
his sentence.

Discussion:

Conditional Pardon by the Chief Executive

133
partially extinguishes the penal liability of
a convict. It is that pardon granted to a
prisoner which is subject to some
conditions, one of which is that he will not
commit any crime anymore. Oftenly, this
kind of pardon is delivered to a convict still
serving sentence who must accept the
condition in order to be effective. Thus,
part of his sentence is remitted which he
will no longer undergo.

Art. 95. Obligation incurred by person

granted conditional pardon. — Any
person who has been granted conditional
pardon shall incur the obligation of
complying strictly with the conditions
imposed therein otherwise, his non-
compliance with any of the conditions
specified shall result in the revocation of
the pardon and the provisions of Article
159 shall be applied to him.

Art. 96. Effect of commutation of

sentence. — The commutation of the
original sentence for another of a
different length and nature shall have
the legal effect of substituting the latter
in the place of the former.

Discussion:

Commutation is the substitution of a lesser

penalty for that of a greater punishment
imposed on the convict by the Chief
Executive. Thus, instead of pardon, the
President may commute the death penalty
to reclusion perpetua, or if the penalty is
reclusion temporal, he ay grant a
commutation altering or changing the
penalty to prision mayor. There is no doubt
a partial extinction of criminal liability
occurs. The commutation of the original
sentence for another of a different length
and nature shall have the legal effect of
substituting the latter in the place of the
former. (Art. 96) Unlike in conditional
pardon, the commutation of penalty in
favor of the convict does not need his
acceptance.

Art. 97. Allowance for good conduct. —

The good conduct of any prisoner in any

134
penal institution shall entitle him to the
following deductions from the period of
his sentence:
1. During the first two years of his
imprisonment, he shall be allowed a
deduction of five days for each month of
good behavior;
2. During the third to the fifth year,
inclusive, of his imprisonment, he shall
be allowed a deduction of eight days for
each month of good behavior;
3. During the following years until the
tenth year, inclusive, of his
imprisonment, he shall be allowed a
deduction of ten days for each month of
good behavior; and
4. During the eleventh and successive
years of his imprisonment, he shall be
allowed a deduction of fifteen days for
each month of good behavior.

Discussion:

With respect to Good Conduct Allowances,

Art. 97 provides for the guidelines which
by its nature may be expanded or
supplemented by the prison’s authority.
The prisoner however, to be entitled must
be serving his sentence. If the accused is
enjoying liberty under conditional pardon,
he cannot be entitled to the good conduct
allowances. (People vs. Martin, 68 Phil.
122)

Art. 98. Special time allowance for

loyalty. — A deduction of one-fifth of the
period of his sentence shall be granted to
any prisoner who, having evaded the
service of his sentence under the
circumstances mentioned in Article 58 of
this Code, gives himself up to the
authorities within 48 hours following the
issuance of a proclamation announcing
the passing away of the calamity or
catastrophe to in said article.

Art. 99. Who grants time allowances. —

Whenever lawfully justified, the Director
of Prisons shall grant allowances for
good conduct. Such allowances once
granted shall not be revoked.

135
 
Title Five
CIVIL LIABILITY
Chapter One
PERSON CIVILLY LIABLE FOR
FELONIES

Art. 100. Civil liability of a person guilty

of felony. — Every person criminally
liable for a felony is also civilly liable.

Discussion:

If A committed Murder, Theft or Rape,

aside from Imprisonment, he is obliged to
pay the offended party the civil liability
which includes restitution, reparation of the
damage caused, and indemnification for
consequential damages. (Art. 104) Of
course, if the crime is one from which no
civil liability may arise, like Illegal Sale,
Transport or Possession of Prohibited or
Regulated Drugs, the convict incurs no
civil liability.

If an accused however was not held

criminally liable, it does not mean he is not
civilly liable. In fact, under the Rules of
Court, in case of acquittal, unless there is a
clear showing that the act from which the
civil liability might arise did not exist, the
judgment shall make a finding on the civil
liability of the accused in favour of the
offended party. (Rule 120, Sec. 2)

Civil Liability of Parents and/ or Guardians

For the crimes committed by minors and

insane persons who are exempt from
criminal liability, the civil liability shall
devolve upon those having legal authority
or control over them unless it appears that
there was no fault or negligence on their
part or that they are insolvent, in which
case, the property of the minor or the
insane shall be liable, excepting property
exempt from execution.

Art. 101. Rules regarding civil liability in

certain cases. — The exemption from
criminal liability established in
subdivisions 1, 2, 3, 5 and 6 of Article 12

136
and in subdivision 4 of Article 11 of this
Code does not include exemption from
civil liability, which shall be enforced
subject to the following rules:
First. In cases of subdivisions 1, 2, and 3
of Article 12, the civil liability for acts
committed by an imbecile or insane
person, and by a person under nine
years of age, or by one over nine but
under fifteen years of age, who has acted
without discernment, shall devolve upon
those having such person under their
legal authority or control, unless it
appears that there was no fault or
negligence on their part.
Should there be no person having such
insane, imbecile or minor under his
authority, legal guardianship or control,
or if such person be insolvent, said
insane, imbecile, or minor shall respond
with their own property, excepting
property exempt from execution, in
accordance with the civil law.
Second. In cases falling within
subdivision 4 of Article 11, the persons
for whose benefit the harm has been
prevented shall be civilly liable in
proportion to the benefit which they may
have received.
The courts shall determine, in sound
discretion, the proportionate amount for
which each one shall be liable.
When the respective shares cannot be
equitably determined, even
approximately, or when the liability also
attaches to the Government, or to the
majority of the inhabitants of the town,
and, in all events, whenever the damages
have been caused with the consent of the
authorities or their agents,
indemnification shall be made in the
manner prescribed by special laws or
regulations.
Third. In cases falling within
subdivisions 5 and 6 of Article 12, the
persons using violence or causing the
fears shall be primarily liable and
secondarily, or, if there be no such
persons, those doing the act shall be
liable, saving always to the latter that
part of their property exempt from
execution.

137
Art. 102. Subsidiary civil liability of
innkeepers, tavernkeepers and proprietors
of establishments. — In default of the
persons criminally liable, innkeepers,
tavernkeepers, and any other persons or
corporations shall be civilly liable for
crimes committed in their
establishments, in all cases where a
violation of municipal ordinances or
some general or special police regulation
shall have been committed by them or
their employees.
Innkeepers are also subsidiarily liable
for the restitution of goods taken by
robbery or theft within their houses
from guests lodging therein, or for the
payment of the value thereof, provided
that such guests shall have notified in
advance the innkeeper himself, or the
person representing him, of the deposit
of such goods within the inn; and shall
furthermore have followed the directions
which such innkeeper or his
representative may have given them with
respect to the care and vigilance over
such goods. No liability shall attach in
case of robbery with violence against or
intimidation of persons unless
committed by the innkeeper's employees.

Discussion:

In default of the persons criminally liable,

innkeepers, tavern-keepers and any other
persons or corporations shall be civilly
liable for the crimes committed in their
establishments, in all cases where a
violation of municipal ordinances or some
general or special police regulations shall
have been committed by them or their
employees. (Art. 102)

Art. 103. Subsidiary civil liability of other

persons. — The subsidiary liability
established in the next preceding article
shall also apply to employers, teachers,
persons, and corporations engaged in
any kind of industry for felonies
committed by their servants, pupils,
workmen, apprentices, or employees in
the discharge of their duties.

138
  
Chapter Two
WHAT CIVIL LIABILITY INCLUDES

Art. 104. What is included in civil

liability. — The civil liability established
in Articles 100, 101, 102, and 103 of this
Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential
damages.

Art. 105. Restitution; How made. — The

restitution of the thing itself must be
made whenever possible, with allowance
for any deterioration, or diminution of
value as determined by the court.
The thing itself shall be restored, even
though it be found in the possession of a
third person who has acquired it by
lawful means, saving to the latter his
action against the proper person, who
may be liable to him.
This provision is not applicable in cases
in which the thing has been acquired by
the third person in the manner and
under the requirements which, by law,
bar an action for its recovery.

Art. 106. Reparation; How made. — The

court shall determine the amount of
damage, taking into consideration the
price of the thing, whenever possible,
and its special sentimental value to the
injured party, and reparation shall be
made accordingly.

Art. 107. Indemnification; What is

included. — Indemnification for
consequential damages shall include not
only those caused the injured party, but
also those suffered by his family or by a
third person by reason of the crime.

Art. 108. Obligation to make restoration,

reparation for damages, or
indemnification for consequential
damages and actions to demand the same;
Upon whom it devolves. — The obligation
to make restoration or reparation for
damages and indemnification for

139
consequential damages devolves upon
the heirs of the person liable.
The action to demand restoration,
reparation, and indemnification likewise
descends to the heirs of the person
injured.

Discussion:

If A was found guilty of killing B, and was

sentenced to reclusion perpetua and to pay
the heirs of B, fifty thousand (P50,000.00)
but died while serving sentence, his (A’s)
heirs are bound to pay the heirs of B the
said amount of fifty thousand (P50,000.00)
if he left properties sufficient to cover the
civil liability.

Art. 109. Share of each person civilly

liable. — If there are two or more
persons civilly liable for a felony, the
courts shall determine the amount for
which each must respond.

Art. 110. Several and subsidiary liability

of principals, accomplices and accessories
of a felony; Preference in payment. —
Notwithstanding the provisions of the
next preceding article, the principals,
accomplices, and accessories, each
within their respective class, shall be
liable severally (in solidum) among
themselves for their quotas, and
subsidiaries for those of the other
persons liable.
The subsidiary liability shall be
enforced, first against the property of
the principals; next, against that of the
accomplices, and, lastly, against that of
the accessories.
Whenever the liability in solidum or the
subsidiary liability has been enforced,
the person by whom payment has been
made shall have a right of action against
the others for the amount of their
respective shares.

Art. 111. Obligation to make restitution in

certain cases. — Any person who has
participated gratuitously in the proceeds
of a felony shall be bound to make
restitution in an amount equivalent to

140
 the extent of such participation.
 
Chapter Three
EXTINCTION AND SURVIVAL OF
CIVIL LIABILITY

Art. 112. Extinction of civil liability. —

Civil liability established in Articles 100,
101, 102, and 103 of this Code shall be
extinguished in the same manner as
obligations, in accordance with the
provisions of the Civil Law.

Art. 113. Obligation to satisfy civil

liability. — Except in case of extinction
of his civil liability as provided in the
next preceding article the offender shall
continue to be obliged to satisfy the civil
liability resulting from the crime
committed by him, notwithstanding the
fact that he has served his sentence
consisting of deprivation of liberty or
other rights, or has not been required to
serve the same by reason of amnesty,
pardon, commutation of sentence or any
other reason.

INDETERMINATE SENTENCE LAW

(Act 4103 as amended by Act. No. 4225)

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which, shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum of which shall be within the
range of the penalty next lower to that prescribed by the Code for the offense; and if the offense
is punished by any other law, the court shall sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same.

Since the opening sentence of this law says: “xxx in imposing a prison term xxx” this
Indeterminate Sentence Law is not applicable to destierro. So that if a concubine is found guilty
under Article 334, the court shall impose a straight penalty of not less than six (6) months and
one (1) day nor more than six (6) years as this is the range of destierro provided for in Article 27.
The judge thus can sentence a concubine to a straight prison term of six (6) months and one day,
or ten (10) months, or one (1) year, or five (5) years, etc.

How to Apply the Indeterminate Sentence Law

To cite a specific example: If A who is only seventeen (17) years old was found guilty of
Homicide with a mitigating circumstance of voluntary surrender, the court shall first determine
the applicable penalty by applying the mitigating circumstances present. Since the accused is
only seventeen (17) years old, he is entitled to a mitigating circumstance of minority which is a
privileged one. Thus, the penalty of reclusion temporal prescribed for Homicide (Art. 249) will

141
be reduced to prision mayor, which is one degree lower. The court will then consider the other
mitigating circumstance of voluntary surrender so that the maximum period under the
Indeterminate Sentence Law is prision mayor minimum which has a range of six (6) years and
one (1) day to eight (8) years.

The minimum term shall be any range of prision correccional which is the penalty next lower in
degree to prision mayor. The sentence of the court thus is as follows:

“Accused is hereby sentenced to an indeterminate prison term of six (6) months and one (1) day
[or more but not exceeding six (6) years of prision correccional as minimum, to six (6) years and
one (1) day [or more but not exceeding eight (8) years] of prision mayor as maximum.

If in the above example, the seventeen (17) year old convict did not voluntarily surrender but is a
recidivist, then the maximum term of the indeterminate sentence is prision mayor in its
maximum period, that is ten (10) years and one (1) day to twelve (12) years but the minimum is
the same- any range within prision correccional.

This Indeterminate Sentence Law is applicable to special laws as it says: “if the offense is
punished by any other law”. Thus, in People vs. Viente, 225 SCRA 361, the accused was found
guilty of carnapping under Republic Act No. 6539 and was sentenced by the trial court to a
straight imprisonment of thirty (30) years. The Supreme Court, ruling that the Indeterminate
Sentence Law applies to violation of special laws, modified the penalty to seventeen (17) years
and four (4) months as minimum to thirty (30) years as maximum since Section 14 of the said
Republic Act provides that, if carnapping is committed by means of violence or intimidation, the
penalty is imprisonment for not less than seventeen (17) years and four (4) months and not more
than thirty (30) years.

There are exceptions to the application of the Indeterminate Sentence Law. Thus, Section 2
provides that the law shall not apply to persons convicted of offenses punished with death
penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to commit
treason, misprision of treason, rebellion, sedition or espionage or piracy; to those who are
habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to
those who violated the conditional pardon granted by the Chief Executive; to those whose
maximum term of imprisonment does not exceed one (1) year; nor to those already sentenced by
final judgment at the time of the approval of the Act.

Accused Mary Rose Ondo, having been sentenced to life imprisonment for Large Scale Illegal
Recruitment is not entitled to the benefits of the Indeterminate Sentence Law. (People vs. Ondo,
227 SCRA 562) The court also refused to grant her the benefits of P.D. No. 603, otherwise
known as the “Child and Youth Welfare Code.”

Although there is a great distinction between reclusion perpetua and Life Imprisonment, and the
Indeterminate Sentence Law does not mention reclusion perpetua as an exception, the courts
have uniformly refused to apply this law to persons sentenced to reclusion perpetua, and the
Supreme Court has consistently affirmed such ruling.

Recidivists are entitled to the availment of the Indeterminate Sentence Law since those
disqualified are Habitual Delinquents. (People vs. Venus, 63 Phil. 435)

Where the accused escaped from jail while his case was on appeal, he is not entitled to the
benefits of the Indeterminate Sentence Law. (People vs. Martinado, 214 SCRA 712)

The application of the Indeterminate Sentence Law is based on the penalty actually imposed, not
on the imposable penalty, and its purpose is to uplift and redeem valuable human material, and
prevent unnecessary and excessive deprivation of personal liberty and economic usefulness.

PROBATION LAW

142
Probation is a disposition under which a defendant, after conviction and sentence is released,
subject to conditions imposed by the court and to the supervision of a probation offiver. (Sec.
3[a], P.D. No. 968 as amended by P.D. No. 1257, P.D. No. 1990 and B.P. Blg. 76)

Under Section 4 of the law, the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period of perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions at it may deem best: provided that no such application shall be
entertained or granted if the defendant has perfected the appeal from the judgment of conviction.

Probation is a mere privilege, not a right of the accused. It is rather an act of grace or clemency
or immunity conferred by the State which may be granted by the court to a seemingly deserving
defendant who thereby escapes the extreme rigors of the penalty imposed by law.

The benefits of the law shall not be extended to those:

1. Sentenced to serve a maximum of imprisonment of more than six (6) years.

2. Convicted of subversion or any crime against national security or the public order.
3. Who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one (1) month and one (1) day and/ or a fine of not less than two
hundred pesos (P200.00).
4. Who have been once on probation.
5. Who are already serving sentence at the time the substantive provisions of this Decree became
applicable.

If the accused is sentenced to more than six (6) year imprisonment even by a day, he is no longer
entitled to the benefits of the Probation Law.

However, multiple prison terms imposed against the accused found guilty of several offenses in
one decision should not be added up, and their sum total should not be determinative of his
eligibility for, nay his disqualification from, probation since the law uses the word “maximum”
not “total” term of imprisonment. (Francisco vs. Court of Appelas, et. Al., 243 SCRA 384) Thus,
if A, having been charged for five (5) cases which were jointly heard is sentenced in one decision
for one (1) year and eight (8) months for each of the charges so that the totality of the prison term
is more than six (6) years, he is not disqualified to avail of the provisions of the Probation Law.

Conditions of Probation

Every probation order issued by the court shall contain the following conditions:

1. That probationer shall represent himself to his designated supervising probation officer within
seventy two (72) hours from receipt of the order.
2. He shall report to the probation officer at least once a month at such time and place specified
in the order.

The trial court may impose other conditions for the probationer to comply.

143