A BAR REVIEW MATERIALS IN CRIMINAL LAW

BOOK 1

Criminal Law, Defined

Is that branch or division of law which defines crimes, treats of their nature,
and provides for their punishment.
Is a branch of public law that treats of acts or omissions, which are primarily
wrongs against the State.
Criminal Procedure, Defined
Treats of the series of processes by which the criminal laws are enforced and
by which the State prosecutes persons who violate the penal laws. In the clear
language of the Court, criminal procedure “regulates the steps by which one who
committed a crime is to be punished” (People vs. Lacson. 400 SCRA 267.)
Is a “generic term to describe the network of laws and rules which governs the
procedural administration of justice.” (Black’s Law Dictionary)
Criminal Law and Criminal Procedure, Distinguished
1. While criminal laws define crimes and prescribe punishment for such crimes,
criminal procedure lays down the processes by which an offender is made to
answer for the violation of the criminal laws;
rights and duties as opposed to giving the rules by which
such things are established.

2. Criminal law is substantive in nature, criminal procedure is procedural in

character;

3. Criminal law is enacted by the Legisture, while criminal procedure is

promulgated by the Supreme Court;

4. Criminal law is characterized by substantive due process, while criminal

procedure is governed by procedural due process.

THE THREE MAIN PARTS OF THE REVISED PENAL CODE:

1. Basic principles affecting criminal liability (Arts. 1 to 20)
2. Provisions on penalties, including criminal and civil liability (Arts. 21 to 113)
and
3. Felonies defined and penalized under fourteen titles (Arts. 114 to 365)

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IS THERE IS A COMMON LAW IN THE PHILIPPINES?
They are offences under the common law, developed entirely by the law courts, and therefore have no specific basis in statute.

In the Philippines, there exist no crimes such as those known in the United
States and England as common law crimes. (U.S. v. Taylor, G.R. No. L – 9726,
December 8, 1914). Our country adheres to the principle of “nullum crimen, nulla
poena sine lege,” that is, there is no crime where there is no law punishing it. The
maxim of nullum crimen, nulla poena sine lege is an indispensable corollary to a
regime of liberty enshrined in our Constitution. It is of the essence that while anti-
social acts should be penalized, there must be a clear definition of the punishable
offense as well as the penalty that may be imposed. (People v. Cabural, G.R. No. L –
34105, February 4, 1963; 1988 and 2011 BAR)

ELEMENTS OF CRIMINAL LAW:

The law must define the criminal act;

a. It must prescribe a penalty; and

b. It must be an act of the Legislature.

It is important toin dubio determine whether or not a statute is penal because only
pre reo - defendant may not be convicted by the court when doubts about his or her guilt remain

then will the principle of in dubio pro reo and the rule on ex post facto law apply.
ex post facto law - a law that retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law.

Thus, procedural laws like suspension pendente lite, extradition treaty, and
substantive laws on jurisdiction are not covered by the above rules, not being penal
suspension pendente lite is a preventive suspension in a criminal case. When you Extradition is an act where one jurisdiction delivers a person accused
statutes. speak of preventive suspension that is a preventive suspension in an
administrative case. So, suspension pendente lite is a suspension pending in a
or convicted of committing a crime in another jurisdiction, over to their
law enforcement. It is a cooperative law enforcement process
criminal case. between the two jurisdictions and depends on the arrangements
made between them.

CONSTRUCTION OF PENAL LAWS

It is a basic rule in statutory construction of criminal laws that in case of doubt,
it should be resolved in favour of the accused.
Penal laws are strictly construed against the Government and liberally in
favour of the accused. (U.S. vs. Abad Santos, 36 Phil. 243) The rule that penal statutes
should be strictly construed against the State may be invoked only where the law is
ambiguous and there is doubt as to its interpretation. Where the law is clear and
unambiguous, there is no room for the application of the rule. (People v. Gatchalian,
104 Phil. 664)

PRO REO PRINCIPLE

In dubio pro reo means “when in doubt, for for the accused.” Intimately
related to the in dubio pro reo principle is the rule of lenity. The rule applies when
the court is faced with two possible interpretations of a penal statute – one that is

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prejudicial to the accused and another that is favourable to him. The rule calls for
the adoption of an interpretation which is more lenient to the accused. (Intestate
Estate of Gonzales v. People, G.R. No. 181409, February 11, 2010.)

SOURCES OF PHILIPPINE CRIMINAL LAW

1. The Revised Penal Code (Act No. 3815) and its amendments.
2. Special Penal Laws – RA 9165, RA 7610, RA 9262, RA 9344, RA 8353
3. Presidential Decrees – PD 1866, PD 1612 (Anti Fencing Law), PD 1613 (Arson
Law) PD 1602 (Illegal Gambling), PD 533 (The Anti-Cattle Rustling Law), PD 532
(Highway Robbery), PD 115 (Trust Receipt Law)
4. Batasang Pambansa – BP 22, BP 6
5. Republic Act No. 10951 – An Act Adjusting the amount or the value of
Property and Damage on which a penalty is based, and the fines imposed
under the Revised Penal Code, amending for the purpose Act No. 3815,
Othewise Known As “The Revised Penal Code,” as Amended.

Constitutional limitations on the power of congress to pass penal laws

a. The law must be general in its application (equal protection clause) –

Assures that a penal law must apply to all similarly situated unless a valid
classification exists, e.g., R.A. 9262 which recognizes the classification
between man, on the one hand, and women and children, on the other. It
complements the generality characteristic of penal law.

b. It must observe substantive and procedural due process –

Due process is a right of the accused as much as it is of the prosecution. For

justice to prevail, the scales must be balanced; justice is not to be dispensed
for the accused alone. The interests of society and the offended parties
which have been wronged must be equally considered.

c. It should not impose cruel and unusual punishment or excessive fines –

Punishments are cruel when they involve torture or a lingering death. It

implies something inhuman or barbarous or shocking to the conscience.

d. It should not operate as a bill of attainder –

A bill of attainder is a legislative act which inflicts punishment without

judicial trial. It offends against the due process clause and has featured of

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 ex post facto law. It is an encroachment of judicial function by the
legislative.

e. It must not operate as an ex post facto law–

The prohibition on ex post facto law applies solely to penal laws. It cannot
prohibit the retroactivity of procedural laws such as one that prescribes
rules of procedure by which courts applying laws of all kinds can properly
administer justice, such as the Extradition Treaty. (Wright vs. CA, G.R. No.
113213, August 15, 1994)

PROSPECTIVE EFFECT OF THE RULES OF COURT (BAR 2011)

The rules embodied in the Rules of Court are not penal laws and are not to be
given retroactive usage and are to be govern cases brought AFTER they take effect,
and also all further proceedings in cases then pending, except to the extent that in
the opinion of the court, their application would not be feasible or would work
injustice, in which event the former procedure shall apply.

Provisions in the Penal Code complementing ex post facto rule:

a. Article 21: no felony shall be punishable by any penalty not prescribed by
law prior to its commission.
b. Article 22: penal laws shall have a retroactive effect insofar as they favor
the offender who is not a habitual delinquent. Therefore, a law which
increases the penalty for an act or omission or prejudicial to the right of the
accused cannot be given retroactive effect unless they are favourable to
the accused who is not an habitual delinquent.

Applicability to pending actions; retroactivity (BAR 2011)

Rules of procedure however, may be made applicable to actions pending and
undetermined at the time of their passage, and are deemed retroactive in that sense
and to that extent. As a general rule, the retroactive application of procedural laws
cannot be considered violative of any personal rights because no vested right may
attach to nor arise therefrom (In the matter to declare contempt of court Hon.
Simeon Datumanong, 497 SCRA 626)
Examples of ex post facto law:
a. Makes an act or omission criminal which when committed was not
criminal.
b. Aggravates the seriousness of the crime than when it was committed.
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 c. Imposes a penalty that is higher than when the crime was committed.
d. Makes it easier for the prosecution to establish the guilt of the accused
than when the crime was committed.
e. Requires a lesser quantum of evidence than when the crime was
committed.
f. Alters, in relation to the offense or its consequences, the situation of a
person to his disadvantage.
g. Assumes to regulate civil rights and remedies only but in effect imposes a
penalty or deprivation of a right which when done was lawful.
h. Deprives a person accused of crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty. (Lacson vs. Executive secretary,
G.R. No. 128096, January 20, 1999)

CHARACTERISTICS OF PENAL LAW

A. GENERALITY – Penal law is binding on all persons who reside or sojourn in
the Philippines whether citizens or not subject to some well-defined
exceptions.
There are cases where our Criminal Law does not apply even if the crime is
committed by a person residing or sojourning in the Philippines. These constitute the
exceptions.
Under Article 14 of the Civil Code, penal laws shall be obligatory upon all who
live or sojourn in the Philippine territory. This is the generality principle. (Campanilla)
1. Foreigner – The foreign characteristics of an offender does not exclude him
from operation of penal laws. The argument of accused that he did not incur
criminal liability because both he and the victim is Indonesian is not tenable.
An alien is not immune from criminal prosecution for violation of the Trade
Mark Law committed in the Philippines. Trademark Law is obligatory to a
foreigner, who is living or sojourning in the Philippine (Bar 2011) (Campanilla)

2. Military offender – Penal laws are obligatory to military men residing or

sojourning in the Philippines. The courts have jurisdiction to try military
offenders charged with violation of the penal laws. Its jurisdiction is unaffected
by the military or other special character of the accused. However, service-
connected crimes shall be tried by the court-martial as mandated by RA No.
7055. (Navales v. Abaya, G.R. No. 162318, October 25, 2004) (Campanilla).
Exceptions:
Under Article 14 of the Civil Code, the generality principle is subject to
principles of public international law and treaty stipulation. However, law of

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 laws of preferential application and those provided for treaties shall serve as exceptions to the generality principle

preferential application and case law are also recognized exceptions to the principle
of generality.
1. Principles of international law
Penal laws are not obligatory to persons entitled to criminal immunity because
of the principles of international law. Under the old rule, a consul was not exempt
from criminal prosecution for violation of the laws of the country where he resided.
Under the present rule, consular officers are immune from criminal prosecution of
acts performed in the exercise of function. Immunity does not cover slander or
reckless imprudence resulting in homicide for not being function-related.
A Chinese diplomat, who killed another Chinese diplomat in Cebu, is immune
from criminal prosecution (The Vienna Convention on Diplomatic Relations). Unlike
consular officers, diplomat agents are vested with blanket diplomatic immunity from
civil and criminal suits. (Minucher v. Hon. CA, G.R. No. 142396, Feburary 11, 2003).
Unlike Ministers, Presidents, Ambassadors, and Chief of Mission, a Commercial
Attache is not a diplomatic agent. Hence, he is not exempt from the generality rule
of criminal law. (Bar Exam 2011). French diplomat stationed in the Philippines is
immune from criminal prosecution for reckless imprudence resulting in homicide.
(BAR Exam 2014). Charge d’affaires is immune from criminal prosecution for multiple
a diplomatic official who temporarily takes the place of an ambassador.
frustrated and attempted murders (2016 Bar Exam) (Campanilla)
2. Laws of preferential application
Article 349 of the Revised Penal Code on bigamy is not obligatory to Muslims
married in accordance with the Muslim Laws because PD No. 1083 (The Code of
Muslim Personal Laws). Under PD No. 1083, penal laws relative to the crime of
bigamy shall not apply to a person married under Muslim Laws where the
requirements set therein are met. (Marbella-Bobis v. Bobis, G.R. No. 138509, July 31,
2000). PD No. 1083 is a law of preferential application. However, if the marriage is
not solemnized in accordance with Muslim Laws, the accused cannot claim criminal
exemption from liability for bigamy on the basis of his religious belief as a Muslim
because of the generality principle. (Abubakar v. Arca, G.R. No. L- 14916, December
29, 1962). PD No. 1083 is not applicable since the marriage was not made in
accordance with the Muslim Law. (Nollora, Jr., v. People, G.R. No. 191425,
September 7, 2011) (Campanilla).
3. Case law
Penal laws are not obligatory to the President because of presidential
immunity by case law. The President of the Philippines is entitled to immunity from
suit subject to the following conditions: (1) the immunity has been asserted; (2)
during the period of his incumbency and tenure; and (3) the act constituting the
crime is committed in the performance of his duties. Presidential immunity will
assure the exercise of presidential duties and functions free from any hindrance or

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distraction, considering that the Chief Executive is a job that demands undivided
attention. (Estrada v. Desierto, G.R. No. 146710- 15, March 2, 2001) (Campanilla).

B. Territoriality – The law is applicable to all crimes committed within the

limits of Philippine territory. Criminal laws undertake to punish crimes
committed within Philippine territory. The principle of territoriality means
that as a rule, penal laws of the Philippines are enforceacble only within its
territory, subject to well-defined exceptions provided for under the 2nd par.
of Art. 2 of the RPC.
Basis – Art. 2, Revised penal Code which provides in substance: “The provisions
of the Revised Penal Code shall be enforced within the Philippine territory (Article 2
of the RPC)
1. Treaties and treaty stipulations.

(a) Bases Agreement

(b) RP-US Visiting Forces Accord.

2. Embassy
The ground occupied by US embassy is not in fact the territory of the USA to
which the premises belong through possession or ownership. A person who
committed a crime within the premises of an embassy will be prosecuted under the
law of the Philippines because of the principle of territoriality. (Reagan v.
Commission on Internal Revenue, G.R. No. L – 26379, December 27, 1969; Answer to
2009 Bar Exam Questions by UP Law Complex). According to CA Justice Coquia, the
modern tendency among writers is toward rejecting the fiction of extraterritoriality
of diplomatice premises. In the Kent, the British courts held that a crime committed
in a foreign embassy is a crime committed in the United Kingdom and the offender,
if not protected by diplomatic immunity, is liable to prosecution in the British courts.
(International Law, Second Edition, by Jeorge R. Coquia and Miriam Defensor
Santiago, pp. 548-549) (Campanilla)
However, jurisdiction of the Philippines over the embassy is limited or
restricted by “the principles of inviolability of diplomatic premises” which is a
generally accepted principle of International Law. A warrant of arrest cannot be
served inside US Embassy without waiver from US government of its right under the
Diplomatic premises - is an absolute rule that the premises of
principle of inviolability. the mission are inviolable and agents of the receiving state
cannot enter them without the consent of the mission. The
receiving state is under a special duty to protect the mission
premises from intrusion or damage or "impairment of its

3. Territorial waters dignity".

Territorial waters refer to all waters seaward to a line 12 nautical miles distant
from the archipelagic baseline over which the Philippines exercises jurisdiction.
These waters are located between national or archipelagic waters and the territorial

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lands of the Philippines, and the high sea. Territorial waters do not include national
waters, which are within the baseline drawn in accordance with the archipelagic
doctrine.
There are three (3) fundamental rules in International Law regarding crimes
committed aboard a foreign merchant vessel (not military vessel), if the same is
within the 12-mile territorial water of the Philippines (not internal or archipelagic
water or high seas), to wit:
I. French rule –

Under the French rule (flag State principle), crimes committed aboard a
foreign merchant vessel within the territorial water of the Philippines
are subject to the jurisdiction of the flag state unless their commission
affects the peace and security of our country.

II. English rule –

Under the English rule (Coastal State principle), crimes aboard a foreign
merchant vessel within the territorial water of the Philippine (Coastal
State) are subject to the jurisdiction of the Philippine unless their
commissions does not affect the peace and security of our country or
has no pernicious effect therein.

III. Convention of the law of the sea

The flag state of foreign merchant vessel passing through the territorial sea
has jurisdiction over crimes committed therein. However, the Philippine (coastal
state) can exercise jurisdiction to arrest any person or to conduct any investigation
in connection with any crime committed on board the ship during its passage in the
following cases: (1) if the consequences of the crime extend to the Philippines; (2) if
the crime is of a kind to disturb the peace of the Philippines or the good order of the
territorial sea; (3) if the assistance of the local authorities has been requested by the
master of the ship or by a diplomatic agent or consular officer of the flag state; or (4)
if such measures are necessary for the suppression of illicit traffic in narcotic drugs
or psychotropic substances. (Section 2, Article 27 of the Convention of the Law of the
Sea) (Campanilla).
Under the old rule, the controlling principle was the English Rule. But since the
Philippines is a signatory to the Convention of the Law of the Sea, it must be
considered in determining jurisdiction over crime committed aboard a foreign ship
within the territorial water of the Philippines.
Murder is committed on board a foreign merchant vessel a few moments after
it left the port of Manila (2015 BAR), or in the break water of Manila Bay (2011 BAR).

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The vessel is within the territorial water of the Philippines when the crime was
committed. Murder committed by the accused disturbs the peace of the Philippines,
hence, he could be prosecuted in Manila.
Spratly Islands and regime of islands
Spratly Islands are chain of islands in the South China Sea the ownership of
which is being disputed by the Philippines, Taiwan, Malaysia, Vietnam, Brunie, and
China. The People’s Republic of China considers the entire Spratly Islands as part of
China, and claims that it has historical naval presence therein. Thus, the Philippines
had no jurisdiction over a crime committed by a Filipino in the disputed Spratly
Islands. (2011 Bar Exams) (Campanilla).
However, the Philippines has jurisdiction over crime committed in kalayaan
Islands, which are the western part of Spratly Islands.
Kalayaan Islands became res nullius (nobody’s property) when Japan, which
had briefly occupied them during World War II, renounced their sovereignty over the
island through the Treaty of Peace. Tomas Cloma, who actually discovered the
uninhabited islands, ceded his right in favour of the Philippines. The Philippines
asserted ownership over Kalayaan Islands by establishing therein the Municipality of
Kalayaan in 1978. The national and local elections are even regularly held therein.
(Campanilla)
The court also has jurisdiction over a crime committed in Kalayaan Islands or
Scarborough Shoal, regimes of islands, because the Baseline Law (RA No. 9522)
declares that the Philippines exercises sovereignty and jurisdiction over it.
Foreign country
Under the principle of territoriality, the Philippines has jurisdiction over crimes
committed inside its territory except as provided in the treaties and laws of
preferential application.
Thus, the court has jurisdiction over concubinage involving illicit relationship
maintained in the Philippines; but it has no jurisdiction over bigamy involving
subsequent marriage contracted in HongKong (Bar 1984), Singapore (Bar 1994) or
New York (Bar 2008). But a lawyer can be disbarred from contracting a bigamous
marriage in a foreign country. (Perez v. Catindig, A.C. No. 5816, March 10, 2015)
(Campanilla).

C. Prospectivity – Our penal laws shall have no retroactive application,

subject to some exceptions. A penal law cannot make an act punishable in
a manner which it was not punishable when committed.
The law should have only prospective application except if it is favorable to
the offender, who is not an habitual delinquent. Whenever a new statute dealing
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with crime establishes conditions more lenient or favourable to the accused, it can
be given a retroactive effect.
But this exception has no application:
1. Where the new law is expressly made inapplicable to pending actions or
existing causes of action.
2. Where the offender is a habitual criminal under Rule 5, Article 62, Revised
Penal Code.
Under the prospectivity principle, criminal law merely punishes crimes
committed on or after its effectivity. Under Artcle 21 of the Revised Penal Code, no
felony shall be punishable by any penalty not prescribed by law prior to its
commission.
The prospective character of criminal laws presupposes that they are not
favourable to the accused. If a criminal law is favourable to accused, it must be given
a retroactive effect. Criminalization is not favourable to the accused. The law should
be given a prospective effect. Hence, prosecuting a person for a crime committed
prior to the passage of the law punishing it is not allowed (Bar 2014).
As a general rule, penal laws shall have prospective application lest they
acquire the character of an ex post facto law. However, there are exceptions of the
prospectivity rule. Laws shall be given retroactive effect: (1) if the law is favourable
to the accused, who is not a habitual delinquent; (2) if the law decriminalizes an act;
or (3) if the law expressly provides retroactivity.
Take note that that the retroactive effect rule benefits a convict although he
is already serving his sentence. (1947 Bar)
Reclusion perpetua, which has duration of 40 years (Article 27 RPC), or 30
years if the accused had undergone preventive imprisonment (Art. 29 RPC as
amended by RA 10592), is a lighter penalty than life imprisonment, which has no
duration. Hence, amendatory law, which prescribes reclusion perpetua instead of
life imprisonment for a crime punishable under it, is favourable to the accused; and
thus, it shall be given a retroactive effect. (People v. Morilla, G.R. No.189833,
February 5, 2014).

Decriminalization.
R.A. No. 10158 decriminalizes vagrancy under Article 202 of the Revised Penal
Code since vagrants as victims of poverty should be protected rather than punished.
In a similar way, RA No. 10655 which decriminalizes premature marriage under
Article 351 of the RPC for being discriminatory and antiquated. RA No. 10158 and RA
No. 10655 shall be given a retroactive effect. (Campanilla)

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Doctrinal application of the prospectivity rule:
a. The prospectivity rule applies to administrative rulings and circulars, and to
judicial decisions which though not laws, are evidence of what the laws
mean. Thus under Article 8 of the New Civil Code, judicial decisions
applying the laws or the Constitution form part of the legal system. Legis
interpretatio legis uim obtinet. This is especially true in the construction
and application of criminal laws, where it is necessary that the punishability
of an act be reasonably foreseen for the guidance of society. (Co vs. CA,
G.R. No. 100776, October 28, 1993)

b. Lex prospicit, non respicit. The law looks forward not backward. The
rationale against retroactivity is that a law usually derides rights which may
have already become vested or impairs the obligations of contract, hence,
unconstitutional. Prior to the statute’s nullification it must have been in
force and had to be complied with (doctrine on operative fact). It would be
to deprive the law of its quality of fairness and justice if there be no
recognition of what had transpired prior to such adjudication.

c. In case of conflict between the mala prohibita doctrine and the

prospectivity rule in the adjudication of cases, the latter should prevail
because all doubts must be resolved in favour of the accused. Moreover,
ex post facto law is a constitutional edict hence is superior to any doctrine
or rule.

Philosopies or school of thoughts of criminal law (BAR 1996):

a. Classical or juristic.

1. Basis of criminal liability – human free will.

2. Purpose of the penalty – retribution, for the right of the State and/or
the private offended party must be observed.
3. Imposable penalty – predetermined penalty for every crime the gravity
of which is directly proportionate to the crime committed.
4. Emphasis of the law – on the offense.
Under the classical theory of which the penal code is mainly based, the basis
of criminal liability is human free will. Man is essentially a moral creature with an
absolutely free will to choose between good and evil. When he commits a felonious
or criminal act, the act is presumed to have been done voluntarily, i.e., with freedom,
intelligence and intent. Man therefore, should be adjudged or held accountable for

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wrongful acts so long as free will appears unimpaired. (People vs. Genosa, G.R. No.
135981, September 29, 2000.)
Examples of law which are the products of Classical School of Thought: (1) the
Death Penalty Law, and (2) the Aggravating Circumstances.
b. Positivist or realistic.

1. Basis of criminal liability – the consideration that man is inherently good

but because of his environment and upbringing he becomes socially
sick.
2. Purpose of the penalty – corrective or curative to reform the offender.
3. Determination of penalty – on an individual basis after considering his
circumstances.

4. Emphasis – on the actor.

Characteristics of the positivist theory
1. That man is subdued occasionally by a strange and morbid phenomenon
which constrains him to do wrong, in spite of or contrary to his volition;
2. That crime is essentially a social and natural prenomenon and as such,
it cannot be treated and checked by the application of abstract
principles of law and jurisprudence nor by the imposition of a
punishment, fixed ansd determined a priori; but rather through the
enforcement of individual measures in each particular case after a
thorough, personal and individual investigation conducted by a
competent body of psychiatrists and social scientists.
Examples of Law or provisions of law which are based on Positivist School of
Thought are: (1) The Indeterminate Sentence Law, (2) Probation law, (3) the three-
fold rule, (4) the rules on mitigation of crimes.
c. Eclectic (or mixed) combines the good features of both the classical and
the positivist theories. Ideally, the classical theory is applied to heinous
crimes, whereas, the positivist is made to work on economic and social
crimes.
A heinous crime is grievous, odious, and hateful offense which by reason of
its inherent, or manifest wickedness, viciousness, atrocity and perversity, is regarded
as seriously outrageous to the common standards or norms of decency and morality
in a just, civilized and orderly society.
d. Utilitarian or protective theory under which the primary function of
punishment in criminal law is to protect society from potential and actual
wrongdoers. The retributive aspect of penal laws should be directed

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 against them. The law should not be applied to further materialism and
opportunism. (Magno vs. CA, G.R. No. 96132, June 26, 1992)
The rule is, penal laws are construed strictly against the State and liberally in
favour of the accused. Whenever two interpretations of law or appreciation of
evidence are possible, the exculpatory interpretation shall prevail, consistent with
the rule on presumption of innocence.
Under the equipoise rule, when the evidence of the prosecution and the
defense are equally balanced, the scale should be tilted in favour of the accused in
obedience to the constitutional presumption of innocence. (Ursua vs CA, G.R. No.
112170, April 10, 1996; Corpuz vs. people, G.R. No. 74259, February 14, 1991) Where
the State fails to meet the quantum of proof required to overcome the constitutional
presumption of innocence, the accused is entitled to acquittal, as a matter of right
regardless of the weakness or even the absence of his defense. For any conviction
must rest on the strength of the prosecution’s case and not on the weakness of the
defense. (Cosep vs. People, G.R. No. 110353, May 21, 1998.

CLASSIFICATION OF FELONIES
1. Formal felonies -- those which are always consummated because the
offender cannot perform the act necessary for their execution without
consummating the offense. For instance physical injuries are punished as
to result, whether serious, less serious, or slight. The degree of injury
cannot be determined without first consummating the offense. Formal
crimes such as libel, acts of lasciviousness, slander, perjury, false testimony,
and illegal possession of picklocks are those which are consummated in one
instant or by performance of a single act of execution. They have no
attempted or frustrated stage.
Example 1
Accused deliberately throws acid to the face of another with intent to blind
him. In other words, his intention is to commit serious physical injuries. However,
injuries caused in the eyes of the victim were completely healed in 25 days. Accused
is not liable for consummated serious physical injuries because it did not cause
blindness to the victim. Neither is he liable for frustrated serious physical injuries
since it is a formal crime. The crime committed is less serious physical injuries since
the same require medical attendance for 10 days or more. (1969 BAR) (Campanilla)
Example 2
Acts of lasciviousness – Accused hugged the victim and tried to touch her
breast. In the process, her dress from the collar to the waistline on the front part was
torn. However, she was able to get free and moved away. The accused desisted from
following her. The crime committed is not frustrated acts of lasciviousness. Acts of
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lasciviousness are always consummated. (People v. Famularcano CA, 43 O.G. 1721.
Hugging the victim with lewd design constitutes consummated acts of lasciviousness.
(1964 BAR)
Example 3
Coup d’ etat – Coup d’ etat is a formal crime. It has no frustrated (2005 BAR)
or attempted stage. Once the military, police or public officer made a swift attack
against facilities needed for the exercise and continued possession of power for the
purpose of seizing or diminishing state power, the crime is consummated. Actual
seizure or diminution of state power is not necessary for the consummation of the
crime. But prior to a swift attack the plotters of coup d’ etat can be held liable for
conspiracy to commit coup d’ etat.
2. Material felonies, -- those which have various stages of execution.
Examples: Homicide, Murder, Parricide and Estafa.

3. Crimes which have no frustrated stage, such as rape, because its essence is
carnal knowledge. Hence, even the slight penetration of the female organ
consummates the crime. (People vs. Clopino, G.R. No. 110353, May 21,
1998) In a similar way, the crime of theft also has no frustrated stage.
Likewise arson can only be attempted or consummated, because the
slightest burning of the property consummates the crime of arson
especially since the amount of damage in the property has been deleted in
the amendments to the law on arson.

The crimes of direct bribery and corruption of public officials admit only of
two stages—attempted and consummated stages. They have no frustrated
stage. The rule is to have a consummated direct bribery, the corruption of
public officials must also be in consummated stage. If direct bribery is only
in the attempted stage, then there is no corresponding crime of corruption
of public officials. In the same manner, if the crime is attempted corruption
of public officials, there is no corresponding crime of direct bribery.

The crime of adultery also admits of two stages - attempted and

consummated. It has no frustrated stage.

CRIMES MALA IN SE and MALA PROHIBITA

An act or omission may either be inherently evil (mala in se) or evil because
there is a law prohibiting the same (mala prohibita)

14
DISTINCTIONS
In mala in se:
1. Basis – moral state of the offender hence, good faith or lack of criminal
intent is a defense.
2. Modifying circumstances – taken into account in imposing the penalty
on the offender precisely because his moral trait is the basis of this
crime. Hence greater perversity deserves a higher penalty whereas
lesser depravity deserves mitigation.
3. Degree of participation – penalty is computed on the basis of whether
the malefactor is a principal offender, or merely an accomplice or
accessory.
4. Stage of accomplishment – the penalty imposed depends on whether
the crime is consummated, frustrated, or attempted.
"an act or behavior that gravely violates the sentiment or accepted standard of the community"

5. Moral turpitude – crimes mala in se generally involve moral turpitude

logically so for its basis is the moral state of the offender.
6. Law violated – generally, the Revised Penal Code.
In mala prohibita:
1. Basis – voluntariness, hence, good faith or lack of criminal intent is not
a defense, unless intent is an element of the crime such as in Section
3(e) of R.A. 3019.
2. Modifying circumstances – not considered because the law intends to
discourage the commission of the act specially prohibited.
3. Degree of participation – the penalty on the offenders is the same as
they are all deemed principals.
4. Stage of accomplishment – violation of law is punished only when
accomplished or consummated because intent is inherent in attempted
or frustrated stage and intent is not relevant in crimes mala prohibita.
5. Moral turpitude – not involved in crimes mala prohibita because the act
would not have been wrong if not for the prohibition by law.
6. Law violated – generally, special penal laws.

Effect of repeal of penal law on the accused:

a. Absolute or total repeal or express repeal – the act or omission is
decriminalized.
1. Pending case – dismissed whether the accused is habitual delinquent or
not.
2. Offender has been convicted and/or serving sentence released if he is
not a habitual delinquent or the law provides that detention is to
continue.

15
 b. Partial or relative repeal, or implied repeal or repeal by re-enactment.

1. First law will govern if the accused is habitual delinquent or when the
favourable second law prohibits retroactivity.
2. Second law will govern if favorable to the offender who is not a habitual
delinquent or the law is silent as to its retroactivity.
As a rule, an absolute repeal of a penal law has the effect of depriving a court
of its authority to punish a person charged with violation of the law prior to its repeal
and this is because an unqualified repeal of a penal law constitutes a legislative act
of rendering legal what had been previously declared as illegal, such that the offense
no longer exists and it is as if the person who committed it never did so. There are,
however, exceptions to the rule, as follows:
1. The inclusion of a saving clause in the repealing statute that provides
that the repeal shall have no effect on pending actions.
2. Where the repealing act re-enacts the former statute and punishes
the act previously penalized under the old law. In such instance, the
act committed before the re-enactment continues to be an offense
in the statute books and pending cases are not affected, regardless
of whether the new penalty to be imposed is more favourable to the
accused. (Benedicto vs. Court of Appeals, G.R. No. 125359,
September 4, 2001) (Boado)

Article 1. Time when Act takes effect. – This Code shall take effect on the first day
of January, nineteen hundred and thirty-two.
The Revised Penal Code took effect on January 1, 1932, and since then it has
undergone several amendments and the latest of which is RA No. 10951.

Article 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 the 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 Islans;
3. Should be liable for acts connected with the introduction into these
Islands of the obligations and securities mentioned in the preceding
number;

16
 4. While being public officers or employees, should commit an offense in
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 the Code.
Two applications of the Code:
a. Intra–territorial application – within the Philippine archipelago,
including its atmosphere, interior waters and maritime zone.

b. Extra-territorial – the Code may be given application even to those

crimes committed outside the Philippine territorial jurisdiction.
Treaties and laws of preferential application such as R.A. 75 on immunity of
diplomatic representatives of foreign countries prevail over the provisions of the
Code. Under international laws, sovereigns, heads of states and their official
representatives enjoy immunity from suits.
Pursuant to the Vienna Convention on Diplomatic Relations the heads of
diplomatic missions are of three levels:
a. Ambassadors or nuncios accredited to the heads of State;
b. Envoys, ministers or internuncios accredited to the heads of States;
and
c. Charges d’ affairs accredited to the ministers of foreign affairs
Composing the staff of the (diplomatic) mission are the diplomatic staff, the
administrative staff and the technical and service staff. Only the heads of missions,
as well as members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are accorded diplomatic
rank. (Minucher vs. CA, G.R. No. 142396, February 11, 2003)
Only “diplomatic agents” are vested with blanket diplomatic immunity from
civil and criminal suits. The Convention defines “diplomatic agents” as the heads of
missions or members of the diplomatic staff, thus withholding the same privileges
from all others. Even consuls, who represent their respective states in concern of
commerce and navigation and perform certain administrative and notarial duties, do
not ordinarily enjoy the traditional diplomatic immunities and privileges accorded
diplomats, mainly for the reason that they are not charged with the duty of
representing their States in political matters. (Boado)
First exception – crime committed within a Philippine ship/airship:
a. This is subject to the limitation that the vessel is not within the territorial
jurisdiction of another country, otherwise, the latter’s laws will govern
because penal laws are primarily territorial. But if the foreign country
did not assume jurisdiction, the Philippines will have jurisdiction. If the
crime was committed on board a ship of Philippine registry, while it was
17
 on the high seas, then it is the Philippine court that shall have
jurisdiction.

b. The country of registry determines the nationality of the ship or airship,

not its ownership. Thus a Filipino owned ship registered in a foreign
country is a foreign ship.
There are two rules as to jurisdiction over crimes committed aboard merchant
vessels while in the territorial waters of another country.
FRENCH RULE recognizes flag or nationality of vessel. The country of registry
will have jurisdiction but when the crime violated the peace and order of the host
country such as drug-trafficking, homicide or robbery, the host country will have
jurisdiction.
Such crimes are not triable in the courts of that country, unless their
commission affects the peace and security of the territory or the safety of the state
is endangered.
ENGLISH RULE adheres strictly to the territoriality principle or situs of the
crime: The country of registry will have jurisdiction only where the crime relates to
internal management of the vessel.
Such crimes are triable in that country unless they merely affect things within
the vessel or they refer to the internal management thereof.
When a Philippine merchant ship is in the high seas, it in effect is an extension
of Philippine territory because the crime shall be subject to Philippine courts as the
high seas is not within the jurisdiction of any country.
War vessels and official vessel of heads of States such as Ang Pangulo are
extensions of the country’s jurisdiction of any country.
Example 1
After two Filipino government officials returned to the Philippines from Las
Vegas, Nevada, where they watched a boxing match, one of them discovered that
the other stole his Rolex watch while they were still in Las Vegas. Article 2 of this
Code cannot be applied because the theft was not committed in a Philippine ship or
airship, did not involve forgery or counterfeiting of any coin or currency note of the
Philippine, did not introduce into the Philippines forged obligations and securities,
the offender did not act in the exercise of his functions, and the offense committed
was not against national security and the law of nations. (Patricio)
Example 2
A Justice of the Philippine Supreme Court brought his confidential secretary to
Washington D.C. to assist him in recording the proceedings during the Conference of
World Jurists thereat. The secretary, however, falsified the report of another Filipino
18
Supreme Court Justice who also attended the said conference. After the secretary
returned to the Philippines, she could not be prosecuted and punished for
falsification because she did not commit the offense in the exercise of her functions.
(Patricio)
Second and third exceptions:
a. Forgery is committed by giving to a treasury or bank note any
instrument payable to bearer or to order the appearance of a true
genuine document or by erasing, substituting, counterfeiting or
altering by any means the figures, letters, words or signs contained
therein. (Art. 169)

b. If forgery was committed abroad, it must refer only to Philippine

coin, currency note or obligations and securities. The special
mention of U.S. notes and currencies in the Code should be deemed
as not written for the Philippines is no longer a commonwealth of
the U.S.
Crimes committed at or within the premises of the Philippine Embassy in
foreign countries, on the theory that Philippine Embassies are considered extension
of Philippine territory.
Fourth exception: While being public officers or employees, should commit an
offense in the exercise of their functions; or
A public officer/employee who commits a crime related to the exercise of his
office. Without this relation, they are acting in their private capacity and hence
bound by the law of the host country. Hence, a public official who committed the
crime of theft or robbery in the foreign country could not be prosecuted in the
Philippines for the simple reason that the crime he committed is not in the
performance of his official function. However, if the crimes perpetrated are
malversation or plunder or violation of RA No. 3019, then he could be prosecuted in
the Philippines on the theory that the crimes he committed are related to the
performance of his public or official functions.
Fifth exception: Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of the Code.
Title 1 of Book 2 on crimes against national security and the law of nations
which covers Treason, Espionage, Provoking War, and Disloyalty in Case of War,
Piracy and Mutiny, but not rebellion.
When rebellion is committed abroad, the Philippine courts will not acquire
jurisdiction because rebellion is a crime against public order.
See: Section 58. Extra Territorial Application of this Act (R.A. No. 9372 or The
Human Security Act of 2007)
19
BAR 1994 on territoriality
Abe married to Liza, contracted another marriage with Connie in Singapore.
Thereafter, Abe and Connie returned to the Philippines and lived as husband and
wife in the hometown of Abe in Calamba, Laguna. (1) Can Abe be prosecuted for
bigamy?

Suggested answer
No. Abe may not be prosecuted for bigamy since the bigamous marriage was
contracted or solemnized in Singapore, hence such violation is not one of those
where the Revised Penal Code, under Art. 2 thereof, may be applied
extraterritorially. The general rule on territoriality of criminal law governs the
situation.

BAR 2000 - Territoriality: jurisdiction over the vessel

After drinking one (1) case of San Miguel beer and taking two plates of
“pulutan,” Binoy, a Filipino seaman, stabbed to death Sio My, a Singaporean seaman,
aboard M/V “Princess of the Pacific,” an overseas vessel which was sailing in the
South China Sea. The vessel, although Panamanian registered, is owned by Lucio Sy,
a rich Filipino businessman. When M/V “Princess of the Pacific” reached a Philippine
Port at Cebu City, the Captain of the vessel turned over the assailant Binoy to the
Philippine authorities. An information for homicide was filed against Binoy in the
Regional Trial Court of Cebu City. He moved to quash the information for lack of
jurisdiction. If you were the Judge, would you grant the motion?
Suggested answer
Yes, the Motion to Quash the Information should be granted. The Philippine
court has no jurisdiction over the crime since it was committed on the high seas or
outside of Philippine territory and on board a vessel not registered or licensed in the
Philippines (US v. Fowler, 1 Phil 614).
It is the registration of the vessel in accordance with the laws of the
Philippines, not the citizenship of her owner, which makes it a Philippine ship. The
vessel being registered in Panama, the laws of Panama govern while it is in the high
seas.

20
Article 3. Definition, -- Acts and omissions punishable by law are felonies (delitos)
(BAR 2015)
Felonies are committed not only by means of deceit (dolo) but also by means of
fault (culpa).
There is deceit when the act is performed with deliberate intent; and there is fault
when the wrongful act results from imprudence, negligence, lack of foresight, or
lack of skill.
Felonies defined -- Acts and omissions punishable by law are felonies (delitos)
Classification of crime as to commission
1. Dolo or felonies committed with deliberate intent;
2. Culpa or those committed by means of fault.
Felony refers exclusively to acts or omissions punished under the Revised
Penal Code. Violations of special laws are generally referred to as offenses. Crimes
under the RPC are called felonies although it is not wrong to call felonies as offenses
also. On the other hand, crimes penalized by Special Penal Laws are termed offenses
but they cannot be called interchangeably as felonies.
Felonies in general have the elements comprising either dolo or culpa whereas
specific felonies under Book II of the Code have their own specific elements which
are alleged in the Information. The elements under Article 3 pertain to the actor. The
elements of specific felonies relate to the act or acts constituting the felony.
The relationship between a felony and an offense.
A felony which is defined and penalized by the RPC does not absorb nor is
absorbed by an offense (defined and penalized by special penal laws).
Thus, more than one crime is charged if an act violates both the RPC and a SPL.
Examples – violation of BP 22 and estafa; Illegal recruitment and estafa; RA
9745 (torture) and the resulting murder, homicide, physical injuries.
If the Special Penal Law allows for absorption, then only one crime is
committed.
RA 9372 (Human Security Act) absorbs the predicate acts like arson, murder,
kidnapping.
Offenses and felonies cannot be complexed for Article 48 does not allow
complexing of felony with offense (People v. Abay, February 24, 2009).
But special complex crime is possible for offenses and felonies like carnapping
with homicide for the carnapping law allows it, robbery with homicide, as well as
kidnapping with homicide.

21
INTENT
Is the use of a particular means to effect the desired result. For instance, the
use of a lethal weapon would show the criminal intent to kill although death did not
result.
Intent is a mental state thus the need to determine it by the means used. This
intent is demonstrated by the overt acts of a person.
In the crime of homicide, for example, intent to kill is presumed in the
following cases:
1. By the weapon used.
2. By the location of the injury sustained by the victim.
3. By the number of wounds inflicted on the offended party.
As a general rule, criminal intent is presumed from the voluntary commission
of an unlawful act. (Abdulla vs. People, G.R. No. 150129, April 6, 2005) Thus, when
the victim dies, intent to kill is conclusively presumed from the act of killing. (People
vs Delim, G.R. No. 142773, January 28, 2003) But where the victim survives, intent to
kill becomes a specific criminal intent which cannot be presumed but most be
proved. In other words when the act is equivocal it could result to variant crimes
such as physical injuries vis-à-vis attempted/frustrated homicide; acts of
lasciviousness vs. attempted rape; unjust vexation vs. slander by deed, etc. In these
cases, specific criminal intent cannot be presumed but must be established.
Instances when the offender can be criminally liable if there is no criminal
intent
a. Felonies committed by culpa, and
b. Offenses mala prohibita.
c. Violation of city, municipal or provincial ordinances

Illustrations of a culpa resulting to homicide are:

(1) Exhibiting a loaded revolver to a friend who was killed by the accidental discharge
brought about by negligent handling;
(2) Discharging a firearm from the window of one’s house and killing a neighbour
who just at the moment leaned over the balcony front;
(3) Where the defendant, to stop a fist fight, fired his .45 cal. twice in the air, and, as
the bout continued, he fired another shot at the ground, but the bullet ricocheted
and hit a bystander who died soon thereafter. (People vs. Belbes, G.R. No. 124670,
June 21, 2000)

22
MOTIVE
Is the moving power or force (such as vengeance) which impels a person to a
desired result. Generally, motive is immaterial in determining criminal liability,
except:
a. When the act brings about various crimes, e.g.., kidnapping or robbery
(People vs. Puno, G.R. No. 97471, February 17, 1993);
b. There is doubt whether the accused committed the crime, or the
identity of the accused is doubtful; and
c. The evidence on the commission of the crime is purely circumstantial.
Where the identity of the assailant is in dispute, motive becomes relevant, and
when motive is supported with sufficient evidence for a conclusion of guilt, a
conviction is sustainable. (People vs. macoy, G.R. Nos. 96649-50, July 1, 1997)
Say for instance, in the crime of homicide, if the assailant is unidentified, then
the determination of motive is necessary. Who would be benefited by the death of
the victim? He could possibly be the perpetrator.
But it should be remembered that motive alone would not be sufficient to
bring about the conviction of the accused beyond the shadow of doubt.
In Article 3, culpa is a mode of committing a crime hence killing, for instance,
is denominated homicide through reckless imprudence. In Article 365, culpa itself is
the crime punished, thus the killing is denominated reckless imprudence resulting to
homicide.
There is no attempted or frustrated culpa because intent is inherent in the
attempted or frustrated stage, and in culpa, there is no intent.
Intelligence
Is the capacity to understand what is right and what is wrong. Discernment is
relevant to intelligence, not to intent. It does not mean though, that when a person
acted with discernment, he intends the crime or the wrong done. (People vs.
Cordova, G.R. Nos. 83373-74, July 5, 1993) Intelligence is an element of both dolo
and culpa, thus, whether the resulting felony is intentional or culpable, if there was
no discernment, there is no offense whether dolo or culpa.
Intelligence could be either completely lacking as in insanity or imbecility and
minority in which case, the offender is exempt from criminal liability. Or it could
merely be diminished as in the case of schizophrenia or passion and obfuscation, in
which case it is merely mitigating.

23
Article 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 on
account of the employment of inadequate or ineffectual means.
It has been observed the above provision is the epicentre of of our criminal
law, as it deals on how criminal liability may be incurred by a malefactor.

How criminal liability may be incurred?

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 on
account of the employment of inadequate or ineffectual means.
Take note that Article 3 deals with how a felony is committed, while Article 4
provides for who commits a felony.
There are two kinds of offenders here: those who commit a felony, whether
by dolo or culpa, and those who commit an impossible crime. But a closer look on
this article would show that there are actually three (3) offenders here, to wit: (1)
those who commits a felony, (2) those who commits a felony although the wrongful
act done be different from that which he intended, and (3) those who commits
impossible crime.
There are two clauses in no. 1 of this article:
a. “By any person committing a felony (delito)” referring to both dolo and
culpa. Note that the article specifically included in parenthesis the word
delito.

b. “Although the wrongful act done be different from that which he

intended,” referring to dolo because of the presence of intent (note the
word “intended”).
The elements in the SECOND clause are:
1. An intentional felony is committed.
2. The wrong done is the direct, natural, and logical consequence of the
felony committed even though different from that intended.

24
 Factors affecting intent and correspondingly the criminal liability:
a. Mistake of fact;

b. Aberratio ictus or mistake in the victim of the blow;

c. Error in personae or mistake in identity;

d. Praeter intentionem (so grave a wrong caused than that

intended); and

e. Proximate cause (the cause of the cause is the cause of the evil
caused).
Mistake of fact is an absolutory cause for had the facts been true to the belief
of the offender, the act he did can be justified and will negative criminal liability
(ignorantia factiexcusat) as the element of criminal intent is absent. Thus, mistake of
fact is relevant only in dolo, hence, if the offender is negligent in ascertaining the
true state of facts, he may be free from dolo but not from culpa. Mistake of fact
refers to the situation itself where criminal intent is lacking; it is different from
mistake in the identity of the victim because here criminal intent is present.
Example:
In U.S. vs. Ah Chong (15 Phil 488), had the facts been as Ah Chong believed
them to be, he would have been justified in killing the intruder under Article 11,
paragraph 1, of the Revised Penal Code.
In aberration ictus or error in the victim of the blow the offender intends the
injury on one person but the harm fell on another. There are three persons involved:
the offender, the intended victim and the actual victim. Consequently, the act may
result in a complex crime under Article 48 of the RPC or in two felonies, although
there is just a single intent. Thus, aberration ictus may result to a lesser criminal
liability to the offender. (BAR 2015)
Non-felonious act – If the act, which caused injuries or death to a third person
by reason of mistake of blow, is not an intentional felony, Article 4 on aberration
ictus shall not apply. Committing an act in self-defense, or in the exercise of right to
defend possession of property or causing death or injuries under exceptional
circumstance is not an intentional felony. (Campanilla)
In committing such non-felonious act, the perpetrator is not liable for the
injuries or death of the third person, who was hit by reason of mistake of blow.
Article 4 is not applicable because the perpetrator is not committing an intentional

25
felony. He is exempt from criminal liability because of the circumstance of accident.
But if the perpetrator is reckless in committing the non-felonious act, he can be held
liable for reckless imprudence resulting in homicide or physical injuries. (People v.
Abarca, G.R. No. 74433, September 14, 1987, 1988 and 1991 BAR Exams)
(Campanilla).

Example:
X prevented A from having a bloody encounter with his father. B tried to
remove the hands of X, who was holding A. X pulled the hands of B causing her to
fall over C, her baby. Preventing A from having a bloody encounter with his father
and pulling the hands of B are not intentional felonies. X is just exercising his right to
defend his father. Hence, X is not criminally liable for the death of the baby.
Intent to kill – In aberration ictus, there at least two victims, the intended
victim and the third person who was hit by reason of mistake of blow. Even though
there is intent to kill the target victim, the court should still make an assessment if
there is intent to kill the third person, who was hit by reason of aberration ictus.
If the third person died, intent to kill is conclusively presumed. Hence, the
crime committed against third person, is homicide or murder. (People v. Adriano.
G.R. No. 205228, July 15, 2015).
If the third person merely suffered injuries, and there is intent to kill, the crime
committed is attempted or frustrated homicide or murder. Intent to kill the third
person can be established if the accused is aware of the possibility of hitting others
in the process of killing the target victim. Such awareness is a circumstantial evidence
of intent to kill the third person.
If the third person merely suffered injuries, and there is no intent to kill, the
crime committed against him is merely physical injuries. The following circumstances
negate intent to kill: (1) the accused is not aware of the presence of the third person
or there is no showing of such awareness; (2) the victim was hiding; or (3) the
accused did not kill the third person despite opportunity to do so.
Error in personae or mistake in identity involves only one offended party but
the offender committed a mistake in ascertaining the identity of the victim. It applies
only in a situation where there is a difference in the complexion of the crime
committed.
For example, the accused intended to kill his mortal enemy and in so doing, he
hid himself in a dark alley and when a man approached resembling his mortal enemy,
he shot that man but it turned out that the victim was his father. In this case, he
would be prosecuted for the crime of parricide and in the event he would be
convicted, he would be penalized for the crime of homicide. (Art. 59 of the RPC)

26
 The effect of error in personae depends upon whether the intended crime and
actual crime committed are:
a. Of different gravity, shall apply – the lower penalty between the
intended and the actual felony committed shall be imposed.
Example: if the intended crime is homicide but parricide was
committed or vice-versa. In effect error in personae is
extenuating circumstance.

b. Of the same gravity or severity, the penalty is not mitigated.

Example: if the intended crime is homicide but on a wrong victim
committed is also homicide. The mistake in the identity of the
victim carries the same gravity as when the accused zeroes in on
his intended victim. The main reason behind this conclusion is
that the accused had acted with such a disregard for the life of
the victim without checking the latter’s identity as to place
himself on the same legal plain as one who kills another wilfully,
unlawfully and feloniously. (People vs. Pinto, G.R. No. 39519,
November 21, 1991) (Campanilla)
In praeter intentionem, the injury is in the intended victim but the resulting
consequence is much more grave than intended. It is a mitigating circumstance
under Art. 13, No. 3 of the RPC but if the means employed in the commission of the
crime would logically and naturally bring about the actual felony committed, praeter
intentionem will not be appreciated.
It does not apply to culpa; “intentionem” denotes intent.
The mitigating circumstance of lack of intent to commit so grave a wrong as
that committed should be appreciated where the accused had no intent to kill but
only to inflict injuries when he attacked the victim. (People vs. Flores, infra.)

Example 1
A, a land owner, surprised youngsters in the act of stealing some fruits in his
orchard. He threatened to spank them if they would not come down. Out of fear, all
of them jumped from the tree. As a result thereof, they suffered serious physical
injuries. A is not criminally liable. Threat to spank them is not a felony. A was just
exercising his right of self-help under Article 429 of the Civil Code; threat to spank is
reasonable and necessary means to repel invasion of his property; hence, he is not
criminally responsible for any direct, natural and logical consequences thereof (Bar
1968) (Campanilla)

27
Example 2
A landowner surprised a youngster in the act of stealing some fruits in his
orchard. To scare the intruder, he fired a shotgun aiming at the foliage of a cherry
tree. The shot scattered and a pellet injured the boy, who was standing under the
tree. Accused is not liable for physical injuries becaue he is merely exercising his right
of self-help, But he is liable for reckless imprudence resulting in physical injuries. That
was reckless negligence, the Spanish Supreme Court decided. (Camapanilla)
Example 3
After the victim was stabbed, the accused assisted the chief actor in throwing
the dead body into the well not knowing that the victim is still alive. Thereafter, the
victim died due to drowning. Concealing the body of the crime to prevent its
discovery in an intentional felony committed by an accessory. Since death is the
direct, natural and logical consequence of such felonious act of hiding the body, the
accused is responsible as principal in the crime of homicide. He shall incur criminal
liability for homicide committed by a principal although this criminal participation as
principal is different from his intended participation as an accessory. (People v.
Ortega, Jr., G.R. No. 116736, July 24, 1997).
Example 4
The accused punched his pregnant wife. This is physical injuries. If as a
consequence, she and her unborn baby died, the accused shall incur criminal liability
for compound crime of parricide with unintentional abortion (People v. Salufrania,
G.R. No. L- 50884, March 30, 1988) with the mitigating circumstance of praeter
intentionem, although this crime is different from physical injuries which he
intended to commit. (1994 BAR)
Example 5
If a person in committing an intentional felony creates in the mind of the victim
an immediate sense of danger which causes such person to try to escape, and in so
doing he injures himself, the person who creates such a state of mind is responsible
for the resulting injuries. Such intentional felony that creates a sense of danger can
be threat. In sum, he shall incur criminal liability for the death of or injuries sustained
by the victim although this consequent crime is different from threat, murder of
another victim, or rape which he intended to commit.

ERROR IN PERSONAE and ABERRATIO ICTUS – X treacherously shot and killed A, who
was mistaken by the former as his wife. B, who was hit by mistake of blow, suffered
slight physical injuries. X is liable for murder for the killing of A because of error in
personae rule and slight physical injuries for the wounding of B because of the
aberration ictus. This is not a compound crime because slight physical injuries being
a light felony cannot be made a component thereof. But if B was hit in his left eye
28
causing blindness, the crime committed is a compound crome of murder and serious
physical injuries. (2015 BAR)
In aberration ictus and error in personae, the victim, who is killed or injured
by the accused, is different from that intended victim. In aberration ictus, the
unintended victim was hit due to mistake of blow, while in error in personae, the
unintended victim was hit due to mistake of identity. In error in personae, there is
only one victim; while in aberration ictus, there are at least two victims. The
imposition of penalty in error in personae is generally subject to Article 49 of the
RPC, while aberration ictus is subject to Article 48. (1994 BAR).

Proximate cause is that cause which, in its natural and continuous sequence,
unbroken by an efficient intervening cause, produces the injury and without which
the result would not have occurred. Proximate cause is to be considered generally in
determining whether the consequence of the act should also be borne by the
offender.
Example 1
If the victim died due to tetanus of which he was infected at the precise
moment when the accused inflicted injuries upon him or immediately therafter, the
crime committed is homicide. The infliction of injuries is the proximate cause of his
death. (People v. Cornel, G.R. No. L – 204, May 16, 1947)
Example 2
If the victim died due to tetanus of which he was infected several days after
the accused inflicted injuries upon him, the crime committed is physical injuries. The
accused is not liable for homicide because tetanus is an efficient intervening cause.
Thus, the proximate cause of the death of the victim is not the infliction of injuries.
In fine, in order to hold a person liable for the death of another, the evidence
must establish beyond reasonable doubt that accused’s criminal act was the
proximate cause of such death. Such proof is especially crucial when there are
several possible causes of death. Even assuming that the victim was afflicted with
food poisoning, accused may still be held liable for her death if the prosecution had
presented proof that accused’s act of beating his wife was the efficient or proximate
cause of death, or had accelerated her death.

Efficient intervening cause– The direct relation between intentional felony and
death may be broken by efficient intervening cause or an active force which is either
a distinct act or fact absolutely foreign from the felonious act of the offender.

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Example 1
X and Y had a heated altercation and then exchanged blows. X pulled out a
knife and stabbed Y in the abdomen. Y ran away but before he could reach his house,
he was struck by lightning and died. X should not be held liable for homicide since
the the lightning is an efficient intervening cause that broke the relation between
the felonious act and death. However, X is liable for physical injuries for the stab
wound suffered by Y. (1979 BAR)

Example 2
The perceived delay in giving medical treatment does not break at all the
causal connection between the felonious act of the offender and the injuries
sustained by the victim. It does not constitute an efficient intervening cause since
the victim’s death is still due to the injuries inflicted by the offender, for which the
latter is criminally responsible. (People vs. Acuram. G.R. No. 117954, April 27, 2000)

BAR 2005 – Felonious act of scaring

Bell saw Gaston stealing the prized cock of a neighbour and reported him to
the police. Thereafter, Gaston, while driving a car, saw Belle crossing the street.
Incensed that Belle reported him, Gaston decided to scare her by trying to make it
appear that he was about to run her over. He revved the engine of his car and drove
towards her but he applied the brakes. Since the road was slippery at that time, the
vehicle skidded and hit Belle causing her death. Was Gaston criminally liable? What
is the liability of Gaston? Why?
Suggested answer
Yes, Gaston is liable for Belle’s death because by his acts of revving the
engine of his car and driving towards Belle is felonious, and such felonious act was
the proximate cause of the vehicle to skid and hit Belle, resulting in the latter’s death.
Stated otherwise, the death of Belle was the direct, natural and logical consequence
of Gaston’s felonious act.

BAR 1996 – Proximate cause

Vicente hacked Anacleto with a bolo but the latter was able to parry it with
his hand, causing upon him a two-inch wound on his right palm. Vicente was not able
to hack Anacleto further because three policemen arrived and threatened to shoot
Vicente if he did not drop his bolo. Vicente was accordingly charged by the police at
the prosecutor’s office for attempted homicide. Twenty-five days later, while the
preliminary investigation was in progress, Anacleto was rushed to the hospital

30
because of symptoms of tetanus infection on the two-inch wound inflicted by
Vicente. Anacleto died the following day. Can Vicente be eventually charged with
homicide for the death of Anacleto? Explain.
Suggested answer
Yes, Vicente may be charged of homicide for the death of Anacleto, unless
the tetanus infection which developed twenty five days later, was brought about by
an efficient supervening cause. Vicente’s felonious act of causing a two-inch wound
on Anacleto’s right palm may still be regarded as the proximate cause of the latter’s
death because without such wound, no tetanus infection could develop from the
victim’s right palm, and without such tetanus infection, the victim would not have
died with it.

BAR 2003 – Felonious cause – immediate cause of death

The conduct of wife A aroused the ire of her husband B. Incensed with anger
almost beyond his control, B could not help but inflict physical injuries on A.
Moments after B started hitting A with his fists, A suddenly complained of severe
chest pains. B, realizing that A was indeed in serious trouble, immediately brought
her to the hospital. Despite efforts to alleviate A’s pains, she died of heart attack. It
turned out that she had been suffering from a lingering heart ailment. What crime,
if any, could B be held guilty? Explain.
Suggested answer
B could be held liable for parricide because his act of hitting his wife with fists
blows and therewith inflicting physical injuries on her, is felonious. A person
commtting a felonious act incurs criminal liability although the wrongful
consequence is different from what he intended. (Art. 4, par. 1, RPC).
Although A died of heart attack, the said attack was generated by B’s
felonious act of hitting her with his fists. Such felonious act was the immediate cause
of the heart attack, having materially contributed to and hastened A’s death. Even
though B may have acted without intent to kill his wife, lack of such intent is of no
moment when the victim dies. However, B may be given the mitigating circumstance
of having acted without intention to commit so grave a wrong as that committed
(Art. 13, par. 3, RPC).

BAR 1999 – Proximate cause

During the robbery in a dwelling house, one of the culprits happened to fire
his gun upward in the ceiling without meaning to kill anyone. The owner of the house
was hiding thereat was hit and killed as a result. The defense theorized that the killing

31
was a mere accident and was not perpetrated in connection with, or for purposes of,
the robbery. Will you sustain the defense? Why?
Suggested answer
No, I will not sustain the defense. The act being felonious and the proximate
cause of the victim’s death, the offender is liable therefore although it may not be
intended or different from what he intended. The offender shall be prosecuted for
the composite crime of robbery with homicide, whether the killing was intentional
or accidental, as long as the killing was on occasion of the robbery.

BAR 1997 – Proximate cause

While the crew of a steamer prepared to raise anchor at the Pasig River, A,
evidently impatient with the progress of the work, began to use abusive language
against the men. B, one of the members of the crew, remonstrated saying that they
could work best if they were not insulted. A took B’s attitude as a display of
insubordination and, rising in a rage, moved towards B wielding a big knife and
threatening to stab B. At the instant when A was only a few feet from B. the latter,
apparently believing himself to be in great and immediate peril, threw himself into
the water, disappeared beneath the surface, and drowned. May A be held liable for
the death of B?
Suggested answer
Yes. A can be held criminally liable for the death of B. Article 4 of the RPC
provides in part that criminal liability shall be incurred by any person committing a
felony although the wrongful act done be different from that which he intended. In
U.S. vs. Valdez, 41 Phil. 497, where the victim who was threatened by the accused
with a knife, jumped into the river but because of the strong current or because he
did not know how to swim, he drowned, the Supreme Court affirmed the conviction
for homicide of the accused because, if a person against whom a criminal assault is
directed 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 the homicide in case death results by drowning.

IMPOSSIBLE CRIME
Is an act which would have been an offense against person or property, were it not
for the inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means. The offender shall incur criminal
liability for committing an impossible crime because of his criminal tendency.
Impossible crime is not a real crime since the accused did not commit the
crime against person or property for it is impossible to do so. The law punishes the
32
accused not because of the commission of the crime but on the basis of his tendency
to do so.
1. Elements:
a. The acts performed would have been a crime against persons or property;
b. There is criminal intent;
c. It is not accomplished because of the inherent impossibility or because the
means employed is inadequate or ineffectual.
d. The Offender in performing an act is not violating any another provisions
of law.
Felonies against persons are:
1. Parricide (Art. 246)
2. Murder (Art. 248)
3. Homicide (Art. 249)
4. Infanticide (Art. 255)
5. Abortion (Arts. 256, 257, 258 and 259)
6. Duel (Arts. 260 and 261)
7. Physical injuries (Arts. 262, 263, 264, 265 and 266)
8. Rape
Felonies against property are:
a. Robbery (Arts. 294, 297, 298, 299, 300, 302 and 303)
b. Brigandage (Arts. 306 and 307)
c. Theft (Arts. 308, 310 and 311)
d. Usurpation (Arts. 312 and 313)
e. Culpable insolvency (Art. 314)
f. Swindling and other deceits (Arts. 315, 316, 317 and 318)
g. Chattel mortgage (Art. 319)
h. Arson and other crimes involving destruction (Arts. 320, 321, 322, 323,
324, 325 and 326)
i. Malicious mischief (Arts. 327, 328, 329, 330 and 331)

Crimes against person or property – Not all impossible crimes prescribed and
punished by the Revised Penal Code are punishable. Only impossible crimes against
person or property are punishable.

Crime against chastity – Gender is an element of crimes against chastity except acts
of lasciviousness. In seduction and consented acts of lasciviousness, and abduction,
the offender must be a man, while the victim must be a woman. In adultery, the
offenders must be a married woman and man. While in concubinage the offenders
must be a married man and a woman. In corruption of minor and white slavery, the
victim must be a female prostitute. If the gender element is not present in a crime

33
against chastity, the crime committed is not impossible crime because the act which
is impossible to commit must constitute crime against person or property.
(Campanilla)
For example: If the accused abducted the victim with lewd design and with
intent to rape not knowing that the victim is a gay, who underwent gender
reassignment, he could not be held liable for complex crime of rape through forcible
abduction since both components of this complex crime can only be committed
against a woman. Nor is he liable for impossible crime of forcible abduction since this
is a crime against chastity. In impossible crime, the act which is impossible to commit,
must constitute crime against person or property. Neither is he liable for impossble
crime of rape since act constitutes another violation of the law. He is liable for illegal
detention. (Campanilla)
But if the accused abducted a gay, who underwent gender reassignment, had
sexual intercourse with him, and killed him in the course of detention, the crime
committed is kidnapping and serious illegal detention with homicide. Having sexual
intercourse with a gay merely constitutes acts of lasciviousness, which is integrated
into the special complex crime of kidnapping with homicide (2016 BAR).
Adultery is committed by any married woman who shall have sexual
intercourse with a man not her husband and by the man who has carnal knowledge
of her knowing her to be married. (Article 333 of the RPC). However, one, who
pretended to be a woman in marrying the complainant, cannot commit adultery
since he is not a married woman. Neither is his sexual partner liable for adultery since
this crime committed by the man presupposes that woman of whom he had carnal
knowledge is also liable for adultery. This crime cannot unilaterally be committed by
the man. There is no impossible crime of adultery since this is a crime against
chastity, and not against person or property. (2015 BAR).
Prior to RA 8353, rape is a crime against chastity. Thus, if a person raped a
dead person believing that she was just sleeping, offender could not be held liable
for impossible crime. However, RA No. 8353 reclassifies rape from crime against
chastity to crime against person. Hence, an offender for raping a dead person
without knowing that she was already dead may now be held liable for impossible
crime. The accused shall incur criminal liability for performing an act which would
have been rape were it not for the inherent impossibility of its accomplishment.
a. Crimes against liberty -- Kidnapping for ransom consummates at the precise
moment when the victim was abducted. Receiving ransom is not an element
of this crime. What is important is that the victim was kidnapped for purpose
of ransom. Hence, impossibility to obtain the ransom payment after the
consummation of the crime of kidnapping will not render the crime
impossible. (People v. Tan, G.R. No. 95322, March 1, 1993). Moreover,
kidnapping is a crime against liberty. In impossible crime, the act which is

34
 impossible to commit must constitute crime against person or property. (2000
BAR).

b. Crime against public interest -- Forgery involving PCSO ticket consummates at

the precise moment when the accused forged the document. Encashing the
ticket is not an element of this crime. Hence, impossibility to encash the ticket
because its falsity is very obvious after the consummation of forgery will not
render the crime impossible. (People v. Balmores, G.R. No. L- 1896, February
16, 1950). Moreover, forgery is a crime against public interest. In impossible
crime, the act which is impossible to commit must constitute crime against
person or property (Campanilla).
Evil intent
Stabbing a dead person with intent to kill is an impossible crime. The accused
shall incur criminal liability for performing an act which would have been homicide
or murder were it not for the inherent impossibility of its accomplishment. (1961 and
1976 BAR). Stabbing a dead person with knowledge of his dead condition is not
impossible crime since it was not committed with evil intent to kill. The act does not
show criminal tendency, which is the basis of penalizing impossible crime, since he
is aware that he is not killing someone at time of stabbing.
Factual and legal impossibility
In the United States, criminal laws are silent regarding impossible crimes;
hence, where the offense sought to be committed is factually impossible of
accomplishment, the offender shall be liable for the attempted crime. On the other
hand, where the offense is legally impossible of accomplishment, the actor cannot
be held liable for any crime.
In the Philippines, the crime committed is an impossible crime if the offense
sought to be committed is factually or legally impossible. For example, killing a dead
person is an impossible crime because of legal impossibility. Putting the hand inside
an empty pocket with the intention to steal a wallet is an impossible crime because
of factual impossibility. (1947 and 1962 BAR).
Impossible crime of theft
If the check is unfunded, stealing the check of the employer by an employee and
presenting the same for payment with the bank constitute impossible crime. The act
of depositing the check is committed with evil intent. The mere act of unlawfully
taking the check meant for Mega Inc. showed her intent to gain or be unjustly
enriched. There is factual impossibility to accomplish the crime of qualified theft
since the check is unfunded. (Jacinto v. People, G.R. No. 162540, July 13, 2009; 2012
BAR) (Campanilla).

35
 If the check is funded, stealing the check and failure to present the same for
payment with the bank will not make the accused liable for impossible crime. Even
if the accused failed to encash the same due to external cause such as apprehension
by police or stop payment, he will be held liable for consummated theft. (People v.
Seranilla, G.R. No. L- 54090, May 9, 1988). In theft, taking or gaining possession of
property with intent to appropriate and to gain consummates the crime. Actual gain
is irrelevant as the important consideration is the intent to gain. (Bustinera, G.R. No.
148233, June 8, 2004). Thus, failure to gain will not prevent the consummation of
the crime. (Campanilla)
Example 1
T picked the pocket of V without the latter’s knowledge and consent. T’s
intention was to take for gain any personal property from V’s pocket which turned
out to be empty. An impossible crime was committed because picking the pocket of
V could have been theft, a crime against property, were it not for the inherent
impossibility of its accomplishment as the pocket of V was empty.
However, if T had succeded in extracting form the pocket of V a wallet, and
after opening it he found it to be empty, threw it away, T would not be guilty of
impossible crime because theft, another crime punishable under the Revised Penal
Code, was consummated from the time T has taken possession of the wallet which
has some value.
Example 2
Wanting to kill his friend, but as close rival for the hand of a girl, X placed
arsenic on the coffee of his friend, Y, without knowing that the quantity of the poison
was inadequate to kill a person. In spite of X’s belilef that the quantity of the poison
was sufficient, his friend did not die. Being subjectively a criminal, X is liable for
impossible crime.

Impossible light crime

The penalty for impossible crime is arresto mayor or a fine from 200 to 500
pesos (Article 59 RPC), while the penalty for light felony is arresto menor or a fine
not exceeding 200 pesos or both. Article 59 should not be made applicable to one
who attempts to commit a light felony of impossible materialization since the
penalty for the impossble crime is graver than that for the consummated light crime.
It would be unfair to punish a person, who failed to commit a light felony since it is
impossible to accomplish it, for a graver penalty than that for a person who was able
to commit it. (2012 BAR)

36
Impossible crime distinguished from attempted felony
In impossible crime or attempted felony, the offender did not commit the
crime. But the difference between the two lies on the external cause that prevents
the commission of the crime. If the external cause is the impossibility of
accomplishing the crime or the employment of ineffectual or inadequate means, the
act constitutes impossible crime. On the other hand, if the external cause is not the
impossibility of accomplishing the crime but some cause or accident other than his
own spontaneous desistance, the act constitutes attempted felony.
Example: It is impossible to kill a person using a gun with a dud bullet. What
prevented the commission of homicide is not “some cause or accident other than his
own spontaneous desistance” but the employment of ineffectual means. Hence, the
crime committed is impossible crime. (2014 BAR)
Impossible crime distinguished from frustrated felony
If the crime is not committed, the accused may be held liable for frustrated
felony or impossible crime, and not for frustrated impossible crime. (BAR 2012)
If the accomplishment of the crime is impossible or the means employed is
inadequate or ineffectual, the thus, the crime against person or property was not
committed despite the performance of the act with criminal intent, the accused is
liable for impossible crime.
For example: the accused with intent to kill thought that the salt, which he
mixed with the coffee of another, is arsenic powder. Murder was not committed due
to the employment of ineffectual means. Accused is liable for impossible crime.
If the accomplishment of the crime is not impossible and the means
employed to accomplish the felony is adequate or effectual, but the felony was not
produced despite the performance of all the acts of execution by reason of causes
independent of the will of the perpetrator, the crime committed is frustrated felony.
For example: the offender with intent to kill mixed arsenic with the coffee
of another; the latter did not die by reason of inadequate quantity of the poison but
due to timely medical intervention; the offender is liable for frustrated murder.
Constitutive of another crime – If the accused performed an act constituting
impossible crime and another crime, he will be prosecuted for the latter.
Arson – Firing a gun at the unoccupied bedroom with intention to kill a victim, who
is supposed to be sleeping therein, constitutes impossible crime because it is
factually impossible to kill the victim who was not in the bedroom. The accused shall
incur criminal liability for performing an act, which would have been murder
qualified by treachery, were it not for inherent impossibility of its accomplishment.
(Intod vs. CA; 1994 and 2012 BAR). But throwing grenade at the unoccupied

37
bedroom, where the victim is supposed to be sleeping, constitutes arson if the
bedroom was burned as a consequence. (2000 BAR) (Campanilla)
Serious Physical Injuries – Accused put substance to the food of the victim with intent
to kill him not knowing that the substance is not poison or arsenic but powdered milk
(1998 BAR) or non-toxic powder (2009 and 2014 BAR). This is impossible crime.
Accused shall incur criminal liability for performing an act which would have been
murder by means of poison were it not for the employment of ineffectual means.
But if the victim, because of severe allergy to powdered milk or non-toxic powder,
was hospitalized for 10 days, the accused will be held liable for less serious physical
injuries. (1998, 2009 and 2014 BAR) (Campanilla)
Acts of lasciviousness – Rape through sexual assault is a gender free crime, while
rape through carnal knowledge is commited by a man against a woman. If the gender
element in rape through sexual intercourse is not present, the crime is not
impossible crime but acts of lasciviousness. Sexually assaulting a victim with intent
to have sexual intercourse with her not knowing that the victim is a gay is not
impossible crime of rape. Although it is impossible to commit rape through sexual
intercourse where the victim is a gay, the acts with intent to have sexual intercourse
committed against him constitute acts of lasciviousness. (1996 BAR)
Discharge of Firearm – A discharged shotgun at B from a distance of 300 yards; but
because of the limited range of the firepower of the shotgun, it would be imposisble
for A to kill B. A is liable for discharge of firearm and not for impossible crime of
homicide.
Trespass to dwelling – Where the offender unlawfully entered the house through the
window and took a watch that turned out to be his own, he is liable for trespass to
dwelling and not for impossible crime of robbery.
Attempted robbery – Accused being aware that the victim is wearing an expensive
watch threatened him with the revolver. However, the victim left the watch at his
home. The crime committed is attempted robbery, not impossible crime. There was
intent to gain on the part of “A” when he decided to take the watch of “B” at the
point of gun. The crime of robbery with intimidation is not produced because of a
cause or accident (that B forgot to carry the watch with him) other than spontaneous
dessitance. (1947 and 1955 BAR) (Campanilla).
Impossible crime is punished to suppress lawlessness or to teach a lesson
to the offender. Subjectively, the offender is a criminal although objectively no crime
has been committed. There is no attempted or frustrated stage.
There is legal impossibility where the intended acts, even if completed
would not amount to a crime. Example: stealing property that turned out to be
owned by the stealer.

38
 There is physical impossibility when extraneous circumstances unknown to
the actor or beyond his control prevent the consummation of the intended crime as
the act cannot be completed. Example: stealing from a vault that turned out to be
empty, or killing a dead person.
The offender must not know the circumstance which made the crime an
impossible crime. For instance, in killing a person who has just died;
homicide/murder requires intent to kill. Had the offender known that the victim is
already dead, intent to kill will be absent. At most, it will amount to desecration of
the dead. The malefactors will not go to all the trouble and risks attending the
commission of bank robbery if they knew that the vaults are empty.

BAR EXAM 2004

OZ and YO were both courting their co-employee, SUE. Because of their
bitter rivalry, OZ decided to get rid of YO by poisoning him. OZ poured a substance
into YO’s coffee thinking it was arsenic. It turned out that the substance was white
sugar substitute known as Equal. Nothing happened to YO after he drank the coffee.
What criminal liability did OZ incur, if any? Explain briefly.
Suggested answer
OZ incurred criminal liability for an impossible crime of murder. Criminal
liability shall be incurred 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, par 2, RPC).
In the problem given, the impossibility of accomplishment of the crime of
murder, a crime against persons, was due to the employment of ineffectual means
which OZ thought was poison. The law imputes criminal liability to the offender
although no crime resulted, only to suppress his criminal propensity because
subjectively, he is a criminal though objectively, no crime was committed.

BAR 2004: Impossible crime of kidnapping

Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her
parents to bring and fetch her to and from school. Enrique wrote a ransom note
demanding Php500, 000. 00 from Carla’s parents in exchange of Carla’s freedom.
Enrique sent the ransom note by mail. However, before the ransom note was
received by Carla’s parents, Enrique’s hideout was discovered by the police. Carla
was rescued while Enrique was arrested and incarcerated. Considering that the
ransom note was not received by Carla’s parents, the investigating prosecutor

39
merely filed a case of “Impossible Crime to Commit Kidnapping against Enrique. Is
the prosecutor correct? Why?
Suggested answer
No. The prosecutor is not correct in filing a case for “Impossible Crime to
Commit Kidnapping” against Enrique. Impossile crimes are limited only to acts which
when performed would be a crime against persons or property. As kidnapping is a
crime against personal security and not against person or property, Enrique could
not have incurred an “impossible crime of commit kidnapping. There is thus no
impossible crime of kidnapping.

Article 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 penal 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.
What is the duty of the court in connection with acts which should be repressed but
which are not covered by the law?
Under the above provision, 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 penal legislation.
What about with respect to excessive penalty?
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.
Nullum crimen nulla poena sine lege – There is no crime when there is no law that
defines and punishes it. As a civil law country, in the Philippines penal laws are
enacted by the legislature. Crime is the product of the law; no matter how monstrous
or evil an act it is not a crime unless there is a law punishing it. Moreover, Article 21

40
prohibits the imposition of a penalty not prescribed by law prior to the commission
on a felony; and, the Constitution prohibits the retroactive application of a penal law.
On the other hand a common law crime is one that is manifestly contrary to
good customs and public policy even though not expressly punished by law. As
distinguished from statutory law created by enactment of legislature, common law
comprises the body of those principles and rules of action relating to the government
and security of persons and property, which derive their authority solely from usages
and customs of immemorial antiquity, or from judgements and decrees of the courts
recognizing, affirming and enforcing such usages and customs. It does not rest for
authority upon any express and positive declaration of the will of the legislature.
(Black’s Law Dictionary)
It obvious that this Article does not apply to offenses defined and penalized
by special penal laws because this Article refers to penalties under the “provisions of
this Code.” In a similar way, this Article does not apply to mala prohibita since it
requires the courts to take into consideration “the degree of malice” and injury
caused by the offense.

Article 6. Consummated, frustrated, and attempted felonies. – Consummated

felonies, as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all
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 would
produce the felony by reason of some cause or accident other than his own
spontaneous desistance.
What are the stages of execution?
1. A felony is consummated when all the elements necessary
for its execution and accomplishment are present;

2. 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.

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 3. 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 would produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.
There are three stages of felony: attempted, frustrated, and consummated.
These stages of execution apply only generally to crimes defined and penalized by
the Revised Penal Code. But there are special penal laws which also penalized the
attempted as well as the frustrated stage of execution. Like for example violation of
R.A. 9165 and R.A. 7610, among others.
In the consummated stage all acts of execution are present, hence the
offender is in the objective stage as he no longer has control over the outcome of his
acts, having performed all that is necessary to accomplish his purpose.
Examples:
1. The crime of flight to enemy’s country (Art. 121) is always consummated.
2. The crime of corruption of minors (Art. 340) is always consummated.
3. Slander (Art. 358) and slanded by deed (Art. 359) are both formal crimes
and therefore without attempted and frustrated stages.
4. The crimes of false testimonies (Arts. 180 to 184) are likewise considered
as formal crimes because they are consummated at one instant.
5. Felonies by omission, like treason (Art. 114) and misprision of treason
(Art. 116), have no attempted and frustrated stages, but only consummated stage.
6. The crime of intriguing against honor is another formal crime.
In the frustrated stage, the offender has also reached the objective stage
of the offense for he has performed all the acts which would produce the felony, but
the crime was not committed for reasons independent of his will. If the reason is
dependent on his will, as when in homicide, the wound is fatal but he himself brought
the victim to the hospital hence the victim survived, it is not frustrated homicide but
some other crime like physical injuries.
In the light of the definition of frustrated felony, there is no frustrated rape,
frustrated arson and frustrated theft, as well as frustrated robbery. In a similar
manner, there is also no frustrated bribery and frustrated corruption of public
officials. These crimes could only be committed either in the attempted or
consummated stages.
For the attempted felony, the offender is still in the subjective stage
because he has not performed all acts necessary for its accomplishment. Therefore,

42
he still has control as he may or may not continue his over acts. The important
phrases here are:
a. “Over acts” or external acts – Those which if allowed to continue will
logically result in a felony; it is the start of criminal liability.

Preparatory act refers to a prior act. Example: buying poison to kill the
intended victim. Preparatory acts as a rule not criminal unless these acts
are in themselves penalized as independent crimes. Example: proposal
and conspiracy to commit a crime are not punished except in those cases
provided for by law, e.g., proposal and conspiracy to commit rebellion.

b. “Directly” – The offender shall be liable for the attempted stage of the
felony that is directly linked to the overt act irrespective of his intention.
Example: A person intending to rob a store forced open the window of
the store but before he could enter he was apprehended. He cannot be
charged with attempted robbery even if that was his intention because
the overt act of forcing the window is not directly linked with robbery.
He may be charged with attempted trespass because that act is directly
related to entering the store.

c. “Desistance” – Is an absolutory circumstance only in the attempted

stage. The attempted stage exists up to that time when the offender still
has control of his acts. The moment he has lost control of the outcome
of his acts the subjective phase is passed; the stage is now either
frustrated or consummated (objective phase) where desistance is merely
factual and produces no legal effect, hence, will not exempt the offender
from criminal liability.
A crime is classified as formal:
a. The offender cannot possibly perform all the acts of execution to bring
the desired result without consummating the offense, such as slander or
libel or written defamation.

b. When the Code defines the felony in such a manner that it cannot be
frustrated. For instance, since the gravamen of rape is carnal knowledge,
the slightest penetration of the female organ consummates the felony.
Since the burning of even a portion of the building is considered arson,
the mere scorching thereof consummates the crime.

c. When the crime requires the concurrence of the will of two parties, there
is no frustrated stage, as in corruption of public officers – the moment

43
 the public officer accepts the gift, promise or consideration in bribery,
the crime of corruption is consummated but when the public officer
refuses to be corrupted, the crime is attempted only.

d. When the crime is treated by the Code in accordance with the results,
i.e., the result should be there before liability can be determined, e.g.,
physical injuries, the crime is only in the consummated stage. In physical
injuries, it cannot be determined whether the injury will be slight, less
serious, or serious unless consummated.

Distinction between attempted and frustrated felonies:

a. As to acts of execution – In attempted, not all acts of execution had been
done whereas in frustrated, all acts of execution had been performed.

b. As to causes of non-accomplishment – in attempted, it is a cause or

accident other than the offender’s own spontaneous desistance; in
frustrated it is some cause independent of the will of the perpetrator.

c. In attempted stage, the offender is still in the subjective phase as he still

has control of his acts; whereas in the frustrated stage, he is already in
the objective phase.

d. In attempted homicide, the wound is not mortal, hence the offender

should still need to deal another blow on the victim, which he was not
able to do because he was apprehended. He is therefore still in the
subjective stage. In frustrated homicide, the wound is mortal, sufficient,
to bring about death hence, there is no need of another blow but death
nevertheless did not supervene because timely medical attendance. He
has passed on to the objective phase because he has performed all acts
necessary to bring about the death of the victim.

There is no crime of frustrated theft. Indeed, the Court has after all, held that
unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of
the same. (Valenzuela vs. People, G.R. No. 160188, June 21, 2007). Inasmuch as there
is similarity in the commission of the crime of robbery, it is submitted that there is
also no crime of frustrated robbery.

44
PREPARATORY ACT
The intent of the person in committing preparatory act remains equivocal
or unclear. Hence, preparatory acts such as buying poison, conspiring and going to
the place where the crime agreed upon will be committed are not constitutive of
attempted felony because intent to kill is not clear. However, preparatory acts are
punishable if the law prescribes a penalty for its commission such as proposal or
conspiracy to commit rebellion, or possession of picklock. If the preparatory acts
constitute a felony, commiting it is a consummated crime.
Example 1
If conspirators while on their way to the house of the complainant for the
purpose of killing him were arrested by policemen on the basis of information of one
who heard the conspiracy, they are not criminally liable for conspiracy to commit
murder since the RPC has not prescribed a penalty for it. Neither are they liable for
murder at the attepted stage since going to the place where they intend to commit
a crime are preparatory acts, which are not punishable since the criminal intent to
kill, which is an element thereof, is not yet clear. (Campanilla)
Example 2
X, Y and Z agreed among themselves to attack and kill A, a police officer, but
they left their homemade guns in their vehicle before approaching him. Approaching
A, a police officer, is not an overt act of direct assault. This act can be considered as
preparatory to the commission of assault. It is not constitutive of attempted direct
assault because of the intent to defy the law and its representative, which is an
element thereof, is not yet clear. (BAR 2011)
Example 3
Edgardo induced his friend Vicente, in consideration of money, to kidnap a
girl he is courting so that he may succeed in raping her and eventually making her
accede to marry him. Vicente asked for more money which Edgardo failed to put up.
Angered because Edgardo did not put up the money he required, he reported
Edgardo to the police. Edgardo is not liable for proposal to commit kidnapping since
the law has not provided a penalty for it. Proposal to commit a crime is a preparatory
act, which is not punishable even as an attempted crime because the criminal intent
to deprive victim of her liberty is not yet clear prior to the actual commission of the
commission of the crime. (1996 BAR)

INDETERMINATE OFFENSE
Example 1
In People v. Lamahang, G.R. No. 43530, August 3, 1935, accused, who was
caught in the act of making an opening with an iron bar on the wall of a store, was
45
held guilty of attempted trespassing and not attempted robbery. The act of making
an opening on the wall of the store is an overt act of trespassing since it reveals an
evident intention to enter by means of force in the said store against the will of its
owner. However, it is not an overt act of robbery since the intention of the accused
once he succeeded in entering the store is not determinate; it is subject to different
interpretations. His final objective could be to rob, to cause physical injuries to its
occupant, or to commit any other offense. In sum, the crime that he intended to
commit inside the store is indeterminate. An attempt to commit an indeterminate
crime is not punishable as attempted felony. (1981 BAR) (Campanilla)
Example 2
If the accused destroyed the door and entered the dwelling of the
complainant, and was inside the dwelling when the police authorities arrested him,
the crime committed is not attempted robbery because of the indeterminate crime
principle but consummated trespass to dwelling. (1979 BAR). But if the accused
admitted his intention to steal, Lamahang principle is not applicable. Hence, the
accused is liable for attempted robbey by using force upon thing. (People v. Villegas,
G.R. No. 34039, January 31, 1931) (Campanilla).
Example 3
A enters surreptitiously in the store of B in order to take away with him
some articles and hides himself behind a door, but due to the watchfulness of B, he
did not dare to come out of his hiding place where he was discovered. The crime
committed is attempted theft. The Lamahang principle is not applicable since the
intention of A in this case is to commit theft. Hence, his intention is determinate. In
Lamahang case, the intention of the accused once he enters the house is
indeterminate. (1947 BAR).

Article 7. When light felonies are punishable. – Light felonies are punishable only
when they have been consummated, with the exception of those committed
against persons or property.
Under this Article, light felonies are punishable only when they are
consummated; however, in crimes against persons or property (except slight
physical injuries and maltreatment (Art. 266) and malicious mischief (Art. 328 [3]),
they are punishable even if they are attempted or frustrated.
1. When light felonies are punishable:

a. Only when consummated except for crimes against persons or property.

b. In all stages if the crime is against persons or property.

46
 2. Who are punishable – principals and accomplices. Accessories are not
criminally liable for light felonies. (Article 16)

3. Why is attempted and frustrated light felony not punishable? And why is an
accessory in consummated light felony not punishable? Because the deduction
in penalty is 1 degree for frustrated, 2 degrees for the attempted stage and
another 2 degrees for accessory offender. Since the penalty for light felony is
arresto menor, there is no way of further reducing the penalty. De minimis non
curat lex.
Example 1
A balikbayan came home for vacation from the United States. Finding the
conditions of the people in the Philippines deplorable and to help the critics of the
present Administration, he joined the destabilization activites. He offered to a group
of rallyist a tin can to create annoying discordant sounds, but while he was
approaching the group, he desisted because he himself detested noise. He
committed an attempted alarm and scandals punishable under Article 155; however,
since this crime is one of crimes against public order and not against persons or
property. (Patricio)

Example 2
For not having eaten any food for several days and due to extreme poverty,
X stole the bread of Y displayed in the latter’s store. If X were to be prosecuted for
simple theft under Art. 309 (8), in relation to Art. 9, he would not be exempted from
criminal liability because what he had committed although a light felony, is a crime
against property.
Example 3
If what was stolen was a pencil costing P5. 00 and X sold it to Y, who, in spite
of his (Y) knowledge that the pencil was stolen, Y is considered merely as an
accessory and therefore, is exempt from criminal liability under Art. 16 because what
X committed was only a light felony (Patricio).

Article 8. Conspiracy and proposal to commit felony. – Conspiracy and proposal to

commit felony are punishable only in the case 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.

47
CONSPIRACY AND PROPOSAL

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.

Under the subject legal provision, conspiracy by itself is not a crime unless
there is a specific law penalizing conspiracy. In a similar way, proposal to commit a
crime is not a crime unless there is also a specific law making it criminal.
Worthy to note that there is proposal when the person who has decided
to commit a felony proposes its execution to some other person or persons. A
conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. (1953, 1960 and 1965 BAR)
As a rule, the principle of conspiracy as a mode of committing a crime or
for purposes of applying the collective responsibility rule is only applicable to
intentional felony. The concept of conspiracy, the elements of which are agreement
and decision to commit a crime, are not consistent with culpable felony. In applying
the principle of conspiracy, it presupposes that there are two or more assailants and
regardless of the extent, character and degree of their participation all of them
should be considered as principals.

Conspiracy as a crime – Conspiracy and proposal to commit felony are punishable

only in the cases in which the law specifically provides a penalty therefor.
In this light, there is no crime of conspiracy to commit robbery orconspirscy
to commit theft. Similarly, there is also no crime of conspiracy to commit estafa or
conspiracy to commit falsification of pubkic or private documents.
Example:
In the following cases, proposal or conspiracy is punishable: conspiracy or
proposal to commit treason (Article 115); conspiracy or proposal to commit rebellion
or coup d’eta (Article 136); conspiracy to commit sedition (Article 141); conspiracy
to commit arson (Section 7, PD No. 1613; conspiracy to commit crime involving
traffiking of dangerous drugs (Section 26, RA 9165); conspiracy to commit terrorism
(Section 4, RA 9372); conspiracy to commit child pornography (Section 4, RA 9775)
and conspiracy to commit money laudering (Section 4, RA 9160 as amended by RA
10365; 1953 BAR) (Campanilla)

48
 In the following cases, proposal or conspiracy is NOT punishable: proposal
to commit sedition (2011, 2012 and 2013 BAR); proposal to commit espionage (2011
BAR); proposal to commit highway robbery (2011 BAR); conspiracy to commit direct
or indirect bribery (2011 BAR); conspiracy to commit trafficking in person (2011 BAR)
and conspiracy to assassinate the President (1950 BAR); conspiracy to commit
highway robbery (2011 BAR); conspiracy to commit direct or indirect bribery (2011
BAR); conspiracy to commit trafficking in person (2011 BAR) and conspiracy to
assassinate the President (1950 BAR) (Campanilla)

Conspiracy as a mode of committing a crime – Conspiracy does not constitute a crime

if the law has not specifically provided a penalty therefor. However, even though
conspiracy is not a crime, but if the conspirators committed the crime agreed upon,
conspiracy shall be considered as a means or manner of incurring criminal liability.
(1953 BAR). On the other hand, even though conspiracy is a crime, but the
conspirators committed the crime agreed upon, conspirators shall be held liable for
the crime committed and not for conspiracy to commit it. In this case, conspiracy will
be considered not as a crime but as a mode of committing a crime.
In conspiracy as a crime, conspirators are criminally liable even though they
have not yet perpetrated the crime they agreed to commit. In conspiracy as a mode
of committing a crime, the liability of the conspirators for perpetrating the crime
they agreed to commit is collective.
In conspiracy as a crime, the conspirators will be punished for agreeing and
deciding to commit the crime. In conspiracy as amode of committing a crime, the
collective responsiniity rule applies if the conspirators perform an act in furtherance
of conspiracy.

Collective responsibility – The legal effect once an express or implied conspiracy is

proved is that all of the conspirators are liable as co-principals regardless of the
extent and character of their respective active participation in the commission of the
crime that they agreed to commit. They are also liable for the other crimes
perpetrated in furtherance of the conspiracy. In contemplation of law the act of one
is the act of all. (BAR 2003)
Accused are liable for two counts of rape on account of a clear conspiracy
between them, shown by their obvious concerted efforts to perpetrate, one after
the other, the rapes. Each of them is responsible not only for the rape committed
personally by him but also for the rape committed by the other as well. (People v.
Lascano, G.R. No. 192180, March 21, 2012; 1970 BAR)

49
BAR 2016

Engr. Magna Nakaw, the District Engineer of the DPWH in the Province of
Walang Progreso, and Mr. Pork Chop, a private contractor, were both charged in the
Office of the Ombudsman for violation of the Anti-Graft and
Corrupt Practices Act (R.A. No. 3019) under a conspiracy theory.

While the charges were undergoing investigation in the Office of the

Ombudsman, Engr. Magna Nakaw passed away. Mr. Pork Chop immediately filed a
motion to terminate the investigation and to dismiss the charges against him,
arguing that because he was charged in conspiracy with the deceased, there was no
longer a conspiracy to speak of and, consequently, any legal ground to hold him for
trial had been extinguished.

Rule on the motion to terminate filed by Mr. Pork Chop, with brief reasons.

Suggested answer

Mr. Pork Chop’s motion to terminate the investigation before the Office of
the Ombudsman is denied.

In a case involving similar facts, the Supreme Court held that the death of a
co-conspirator, even if he was the lone public officer, did not mean that the
allegation of conspiracy to violate the Anti-Graft Law could no longer be proved or
that the alleged conspiracy was already expunged. The only thing extinguished by
the death of a co-conspirator was his criminal liability. His death did not extinguish
the crime nor did it remove the basis of the charge of conspiracy between him and
private respondent. [People v. Go, 25 March 2014, Peralta, J.]

Act in furtherance of conspiracy – To make a conspirator collectively responsible, it

must also be established that he performed an act in furtherance of conspiracy. A
conspirator who did not perform an act in furtherance of conspiracy to kidnap the
victim for ransom is not liable for conspiracy to commit kidnapping for ransom since
there is no law prescribing a penalty for it. Neither is he liable for kidnapping on the
basis of collective responsibility rule because he did not perform an act in
furtherance of conspiracy. (1986 BAR)
If a conspirator failed to perform an act in furtherance of conspiracy
because he was apprehended prior to the killing of the victim by his co-conspirators,
the former is not liable for the killing since he did not perform an act in furtherance
of conspiracy. (1998 BAR)
Mastermind – To be held liable as conspirator based on the collective responsibility
rule, it must also be shown that the accused performed an overt act in furtherance
50
of conspiracy except in the case of the mastermind of a crime. (1987 BAR). One who
plans the commission of a crime is liable as conspirator and principal by inducement.
Evidence proved that he was the mastermind of the criminal act or the principal by
inducement notwithstanding the fact that one was not at the crime scene. What is
important is that inducement was the determining cause of the commission of the
crime. The command or advice made by the principal by inducement was of such
nature that, without it, the crime would not have materialized. (People v. Janjalani,
G.R. No. 188314, January 10, 2011)(Campanilla)
Detaching from conspiracy – To exempt himself from criminal liability, a conspirator
must have performed an overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the commission thereof. (Quintos v.
People, G.N. No. 205298, September 10, 2014).
Before the commission of the crime – If a conspirator dissuaded his co-conspirator
from committing the crime agreed upon or make an effort to prevent the
commission of the crime, he is exempt from criminal liability because he detached
himself from the conspiracy. (Campanilla)

Example 1
A induced B to kill the victim for a valuable consideration. But A tried to stop the
killing by calling the police authorities before the actual execution of the crime. A is
not liable because he detached himself from the conspiracy to commit murder. (1989
BAR)
Example 2
Before the actual commission of robbery with homicide by the chief actor in
the dwelling of the victim, his co-conspirator fled for being scared when the police
car with sirens blaring passed by. The latter is not liable for robbery with homicide
commited by the former. By fleeing, his co-conspirator detached or dissociated
himself from conspiracy. Moreover, he did not perform any act in furtherance of
conspiracy. However, he is liable for trespass to dwelling. (2003 BAR)
Example 3
If a conspirator, who supposed to act as a guard outside the house, left the
scene without knowledge of the other conspirators before the killer could enter the
house to execute their plan to kill the victim, he is not liable for the injuries suffered
by the victim. By leaving the scene of the crime, he detached or dissociate himself
from conspiracy. Moreover, he did not perform any act in furtherance of conspiracy.
(1997 BAR).
The commission of the crime is in progress – If a conspirator left the scene of the
crime while its commission is in progress and reported the incident to the police

51
authorities, he is not criminally liable because he detached himself from the
conspiracy. (People v. Nunez, G.R. No. 112429-30, July 23, 1997). But a conspirator
left the scene of the crime while commission of robbery with homicide is in progress
without reporting the incident to the police authorities he is not exempt from
criminal liability. Conspiracy has already materialized; hence, there is nothing to
repudiate (People v. De los Reyes, G.R. No. 44112, October 22, 1992) (Campanilla).
After the commission of the crime – If the accused reported the shooting incident
after it had already taken place, he is criminally liable. In legal contemplation, there
was no longer a conspiracy to be repudiated since it had already materialized.
(People v. Bacbac, G.R. No. 149372, September 11, 2007) (Campanilla).

IMPUTABILITY DOCTRINE – Under the doctrine of imputability, the act of an offender

is imputable to his co-conspirator although they are not similarly situated in relation
to the object of the crime.
Malversation – Only an accountable public officer can commit malversation.
Hence, a private person can not commit the crime of malversation. But if there is
conspiracy, the act of an accountable officer in committing malversation is imputable
to non-accountable officers or private individual, although the latter were not
similarly situated with the former in relation to the object of the crime committed.
(BAR 1958, 1959, and 1971)
Rape through sexual intercourse – Only a man can commit rape through
carnal knowledge against a woman. But if there is conspiracy, the act of a man in
committing rape is imputable to a woman although the latter was not similarly
situated with the former in relation to the object of the crime committed. (People v.
Dela Torre, G.R. No. 121213, January 13, 2004; BAR 2013).
Violation of BP 22 – BP 22 does not expressly proscribe the supplementary
application of the provisions of the RPC including the rule on conspiracy. Hence, the
rule may be applied in a supplementary manner. (Ladonga v. People. G.R. No.
141066, February 17, 2005) Thus, if there is conspiracy, the act of issuing bouncing
check by the drawer is imputable to the non-issuer although the latter was not
similarly situated with the former in relation to the object of the crime committed.
(2010 BAR).
Violence against women – The principle of conspiracy may be applied to RA
9262. Thus, the actof violence of a man having marital relationship with a woman is
imputable to a person (mother-in-law of the victim), who has no marital, sexual or
dating relationship with the victim although both accused were not similarly situated
in relation to the object of the crime committed. (Go-Tan v. Go, G.R. No. 168852,
September 30, 2008)

52
 Corruption – Only public officer can be held criminally liable for violation of
RA No. 3019. However, if there is conspiracy, the act of the public officer in violating
RA No. 3019 is imputable to the private individual although they are not similarly
situated in relation to the object of the crime. Even though the public officer died,
the private individual, his alleged co-conspirator, can still be prosecuted for violation
of RA No. 3019. Death extinguishes the criminal liability but not the crime.
(Campanilla)
Exceptions:
Parricide – Even though there is conspiracy, the act of the wife in
committing parricide is not imputable to a stranger. For example: a wife with the
help of another killed her husband by means of poison. Since relationship is personal
to the wife, it can only be appreciated against her in accordance with Article 62 of
the RPC. Hence, the wife is liable for parricide qualified by the circumstance of
relationship and aggravated by the circumstance of by means of poison, while the
stranger is liable for murder qualified by the circumstance of by means of poison.
(People v. Bucsit, G.R. No. 17865, March 15, 1922; 1950; 1957, and 1997 BAR)
(Campanilla)
Qualified theft – Even though there is conspiracy, the act of the employee
in committing theft qualified by the circumstance of abuse of confidence is not
imputable to a non-employee. The servant and neighbour of complainant consired
and committed the crime of theft. The qualifying circucmstance of abuse of
confidence can only be appreciated against theservant to whom the complainant
reposed confidence, but not to his neighbour. The circumstance of abuse of
confidence is personal to the servant. The crime committed by the servant is
qualified theft while that of the neighbor is simple theft. (People v. Puno, G.R. No.
97471, February 17, 1993; 1966 BAR) (Campanilla)

COMMISSION OF OTHER CRIME – Accused may or may not be held liable for crime
not agreed upon committed by his co- conspirator:
Killing of a third person – A conspirator is liable for a crime, which they agreed to
commit, and other crimes, which could be foreseen and are the natural and logical
consequences of the conspiracy.
Conspirators agreed to kill the husband but not the wife in their home. They
could have foreseen the violent resistance from the wife since they committed the
crime in their home. Hence, the killing of the wife by one of the conspirators because
of her resistance would make the other conspirators liable for her death although
the conspiracy merely pertained to the killing of the husband. The killing of the wife
was the natural and logical consequence of conspiracy to kill the husband. (People v.
Ventura, G.R. Nos. 148145-46, July 5, 2004) (Campanilla)

53
 If by reason of conspiracy, conspirators beat their employer at the first floor
of the building, but one of the conspirators chanced upon a maid at the second floor
shouting for help and killed her, the other conspirators who did not foresee the
killing of the maid, are only liable for the killing of the employer. They are not liable
for the killing of the maid, which is substantially or radically different from the crime
they intended to commit. The killing of the maid is not the natural and logical
consequences the conspiracy to beat the employer. (1986 BAR) (Campanilla)
Conspirator killed a visitor of the target victim without the knowledge of his
co-conspirators. The killing of such visitor is neither foreseeable nor the natural and
logical consequence of the conspiracy to kill the target victim. Hence, conspirators,
who had not participated in the killing of the visitor, are not criminally liable. (1997
BAR) (Campanilla)
Committing homicide or rape in the course of robbery by band. – Any member of a
band who is present at the commission of a robbery by the band shall be punished
as principal of any of the assaults committed by the band, unless it be shown that he
attempted to prevent the same. (Article 296 RPC). The word “assaults” in Article 296
includes sexual assaults constituting rape. In such case, the members of the band are
liable for robbery with homicide, or rape with the ordinary aggravating circumstance
of band. (1977 BAR). However, a member of the band is not liable for robbery with
homicide or rape if he is not present when the victim was killed or raped. (People v.
Canturia, G.R. No. 108490, June 22, 1995; 1996 and 2016 BAR)
Committing homicide or rape in the course of robbery – Case law establishes that
whenever homicide has been committed by reason of or on the occasion of the
robbery, all those who took part as principals in the robbery will also be held guilty
as principals of robbery with homicide although they did not take part in the
homicide, unless it appears that they sought to prevent the killing. (People v. Catro,
G.R. No. 187073, March 14, 2012; 1999 BAR)
However, if there is no evidence that the accused is aware of the
commission of rape, he could not have prevented the rape. Hence, the accused is
only liable for robbery and not for robbery with rape. (People v. Canturia, G.R. No.
108490, June 22, 1995). The Canturia principle where the lack of awareness is a
defense is applicable to kidnapping with rape, kidnapping with homicide, robbery
with homicide and robbery with arson. (BAR 2011)

MULTIPLE CONSPIRACIES – there are two structures of multiple conspiracies,

namely: wheel or circle conspiracy and chain conspiracy.
Under the wheel or circle conspiracy, there is a single person or group (the
hub) dealing with two or more other persons or groups (the spokes). An illustration
of wheel conspiracy wherein there is only one conspiracy involved was the

54
conspiracy alleged in the Information for plunder filed against former President
Estrada and his co-conspirators. Former President Estrada was the hub while the
spokes were all other accused individuals. The rim that enclosed the spokes was the
common goal in the overall conaspiracy, i.e., the amassing, accumulation and
acquisition of ill-gotten wealth. (GMA v. People, G.R. No. 220598, July 19, 2016)
Under the chain conspiracy, usually involving the distribution of narcotics
or other contraband, in which there is successive communication and cooperation in
much the same way as with legitimate business operations between manufacturer
and wholesaler, then wholesaler and retailer, and then retailer and consumer.
(Fernan Jr. v. People, G.r. No. 145927, August 24, 2007; 2016 and 2017 BAR).
The overt act of a co-conspirator may be in the form of:
a. Active participation in the actual commission of the crime itself;
b. Moral assistance to his co-conspirators by being present at the commission
of the crime; or
c. Exerting moral ascendancy over the other co-conspirators, (Pecho vs.
People, G.R. No. 111399, September 27, 1996)
An overt act in furtherance of the conspiracy may consists in actively
participating in the actual commission of the crime, in lending moral
assistance to his co-conspirators by being present at the scene of the crime,
or in exerting moral ascendancy. (People vs. Pablo, G.R. Nos. 120394-97,
January 16, 2001)
TWO CONCEPTS OF CONSPIRACY:
As a crime by itself, the subject of conspiracy is not yet committed but the
mere act of conspiring is defined and punished as a crime, for instance, proposal and
conspiracy to commit treason or rebellion.
As a basis of incurring liability, the execution of the plan is commenced.
Conspiracy by itself ceases to be the crime but is absorbed. Hence, the crime above
is no longer conspiracy to commit rebellion but rebellion under Article 135.
As a basis of incurring liability, it is necessary to determine:
Whether there was prior agreement on how to commit the crime, in which
case, a conspirator is liable as long as he appeared in the scene of the crime unless
he is the mastermind or principal by inducement. In conspiracy by prior agreement,
the liability of the conspirators is only for the crime agreed upon except:
1. When the other crime was committed in their presence and they did not
prevent its commission which is taken as approval or acquiescence to
the second crime;

2. When the other crime is the natural consequence of the crime planned,
e.g., homicide resulting from physical injuries;
55
 3. When the resulting crime is a composite crime or special complex crime
considered single indivisible felony composed of 2 distinct crimes.
Whether it is an implied conspiracy, that is, the offenders acted in concert
during the commission of the crime. Here it is essential that the conspirator
participated in the commission of the crime to be liable. His mere presence or
approval of the crime without more will not make him liable because there would be
no basis for deducing conspiracy as to him as there is absent criminis particeps.
(Boado)

BAR 2003. State the concept of “Implied Conspiracy” and give its legal effects.
Suggested answer
An “implied conspiracy” is one which is only inferred or deduced from the
manner the participants in the commission of crime carried out its execution. Where
the offenders acted in concert in the commission of the crime, meaning their acts
are coordinated or synchronized in a way indicative that they are pursuing a common
criminal objective, they shall be deemed to be acting in conspiracy and their criminal
liability shall be collective, not individual.
The legal effects of an “implied conspiracy” are:
1. Not all those who are present at the scene of the crime will be considered
conspirators;
2. Only those who participated by criminal acts in the commission of the crme
will be considered as co-conspirators; and
3. Mere knowledge, acquiescence to or approval of the act without cooperation
or agreement to cooperate, is not enough to constitute one a party to a
conspiracy absent the intentional participation in the act with a view to the
furtherance of the common design and purpose. (People vs. Bragaes, G.R. No.
62359, November 14, 1991)
Conspiracy is not presumed. Like the physical acts constituting the crime itself,
the elements of conspiracy must be proved beyond reasonable doubt. While
conspiracy need not be established by direct evidence, for it may be inferred from
the conduct of the accused before, during and after the commission of crime, all
taken together, however the evidence must be strong enough to show community
of criminal design. (Magsuci vs. Sandiganbayan, G.R. No. 101545, January 3, 1995;
Pecho vs People, G.R. No. 111399, September 27, 1996) This is so because a person
may be adjudged liable only on the basis of conspiracy.
Although conspiracy is a joint act, there is nothing irregular if a supposed co-
conspirator is acquitted and others convicted. Generally, conspiracy is only a means

56
by which a crime is committed: the mere act of conspiring is not by itself punishable.
Hence, it does not follow that one conspirator alone cannot be convicted when there
is a conspiracy. As long as the acquittal of a co-conspirator does not remove the basis
of a charge of conspiracy, other conspirators may be found guilty of offense. (People
vs. Tiguman, G.R. Nos. 130502-03, May 24, 2001)
Conspiracy cannot co-exist with culpa for the former presupposes the
existence of malice since it involves a meeting of the minds of the co-conspirators on
the manner and mode of committing a crime. Hence, there is no conspiracy in the
crime of “reckless imprudence resulting to homicide.”
When may the head of a government office be held liable as co-principal for
the acts of his subordinates? Either by reckless imprudence or by conspiracy: if he by
an act of reckless imprudence brought about the commission of estafa thru
falsification, or malversation through falsification, without which the crime could not
have been accomplished. When, however, that infraction consists in the reliance in
good faith, albeit misplaced by a head of office on a subordinate upon whom the
primary responsibility rests, absent a clear case of conspiracy, the Arias doctrine
must be held to prevail. (Arias vs. Sandiganbayan, G.R. No. 81563, December 19,
1989) (Boado)
Under the Arias doctrine all heads of offices have to rely to a reasonable
extent on their subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations. There has to be some added reason
why he should examine each voucher in such detail. Any executive head of even
small government agencies or commissions can attest to the volume of papers that
must be signed. There are hundreds of documents, letters, memoranda, vouchers,
and supporting papers that routinely pass through his hands. The number in bigger
offices or departments is even more appalling.

BAR QUESTIONS ON CONSPIRACY:

A had a grudge against F. Deciding to kill F, A and his friends B, C and D,
armed themselves with knives and proceeded to the house of F, taking a taxicab for
the purpose. About 20 meters from their destination, the group alighted and after
instructing E, the driver, to wait, travelled on foot to the house of F. B positioned
himself at a distance as the group’s look out. C and D stood guard outside the house.
Before A could enter the house, D left the scene without the knowledge of the
others. A stealthily entered the house and stabbed F. F ran to the street but was
blocked by C, forcing him to flee towards another direction. Immediately after A
stabbed F, A also stabbed G who was visiting F. Thereafter, A exited from the house
and, together with B and C, returned to the waiting taxicab and motored away. G
died. F survived. Who are liable for the death of G and the physical injuries of F?

57
Suggested answer
A alone should be held liable for the death of G. The object of the conspiracy
of A, B, C and D was to kill F only. Since B, C and D did not know of the stabbing of G
by A, they cannot be held criminally therefor. E, the driver, cannot be also held liable
for the death of G since the former was completely unaware of said killing.
For the physical injuries of F, A, B and C should be held liable therefore. Even
if it was only A who actually stabbed and caused physical injuries to G, B and C are
nonetheless liable for conspiring with A and for contributing positive acts which led
to the realization of a common criminal intent. B positioned himself as a look out,
while C blocked F’s escape. D, however, although part of the conspiracy, cannot be
held liable because he left the scene before A could enter the house where the
stabbing occurred. Although he was earlier part of the conspiracy, he did not
personally participate in the execution of the crime by acts which directly tended
toward the same end. (People vs. Tomoro et al, 44 Phil 38)
In the same breath, F, the driver, cannot be also held liable for the infliction
of physical injuries upon F because there is no showing that he had knowledge of the
plan to kill F.

BAR 2004
BB and CC, both armed with knives, attacked FT. The victim’s son, ST, upon
seeing the attack, drew his gun but was prevented from shooting the attackers by
AA, who grappled with him for the possession of the gun. FT died from knife wounds.
In his defense, AA invoked the justifying circumstance of avoidance of greater
evil or injury, contenting that by preventing ST from shooting BB and CC, he merely
avoided a greater evil. Will AA’s defense prosper? Reason.
Suggested answer
No. AA’s defense will not prosper because obviously there was a conspiracy
among BB, CC and AA, such that the principle that when there is conspiracy, the act
of one is the act of all, shall govern. The act of ST, the victim’s son, appears to be a
legitimate defense of relatives, hence, justified as a defense of his father against the
unlawful aggression of BB and CC. ST’s act to defend his father’s life, cannot be
regarded as an evil inasmuch as it is, in the eyes of the law, a lawful act.
What AA did was to stop a lawful defense, not greater evil, to allow BB and
CC to achieve their criminal objective of stabbing FT.

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BAR 1996
Jose, Domingo, Manolo, and Fernando, armed with bolos, about one
o’clock in the morning, robbed a house at a desolate place where Danilo, his wife,
and three daughters were living. While the four were in the process of ransacking
Danilo’s house, Fernando, noticing that one of Danilo’s daughters was trying to get
away, ran after her and finally caught up with her in a thicket somewhat distant from
the house. Fernando, before bringing her back to the house, raped her first.
Thereafter, the four carted away the belongings of Danilo and his family. What crime
did Jose, Domingo, Manolo and Fernando commit? Explain.
Suggested answer
Jose, Domingo and Manolo committed Robbery, while Fernando committed
complex crime of Robbery with Rape. Conspiracy can be inferred from the manner
the offenders committed the robbery but the rape was committed by Fernando at a
place distant from the house where the robbery was committed, not in the presence
of the other conspirators. Hence, Fernando alone should answer for the crime of
rape, rendering him liable for the special complex crime of Robbery with Rape.
(People vs. Canturia, et.al, G.R. No. 108490, 22 June 1995).

BAR 2019

Mr. X has always been infatuated with Ms. Y. Scorned by Mr. Y's disregard for his
feelings towards her, Mr. X came up with a plan to abduct Ms. Y in order to have
carnal knowledge of her with the help of his buddies, A, B, and C.

On the day they decided to carry out the plan, and while surreptitiously waiting for
Ms. Y, C had a change of heart and left. This notwithstanding, Mr. X, A, and B
continued with the plan and abducted Ms. Y by forcefully taking her to a deserted
house away from the city. There, Mr. X restrained Ms. Y's arms, while A held her legs
apart. B stood as a lookout. Mr. X was then able to have carnal knowledge of Ms. Y,
who was resisting throughout the entire ordeal.

Consequently, Mr. X was charged with the crime of Forcible Abduction under the
Revised Penal Code.

(a) Is the charge against Mr. X proper? Explain.

(b) Assuming that A, B, and C are also charged, may they be held criminally
liable together with Mr. X? Explain.

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SECTION 1. Article 9 of Act No. 3815, otherwise known as "The Revised Penal
Code", is hereby amended to read as follows:

“ART. 9. Grave felonies, less grave felonies and light felonies. – Grave felones are
those to which the law attaches the capital punishment or penalties which in any
of the periods are afflictive, in accordance with Article 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 abovementioned article.

"Light felonies are those infractions of law for the commission of which the penalty
of arresto menor or a fine not exceeding Forty thousand pesos (P40,000) or both is
provided."

Grave felonies which are penalized by capital punishment or afflictive penalties in

any of its period, i.e., the minimum, medium or maximum period of the penalty is an
afflictive penalty. Afflictive penalties cover prision mayor, disqualification, reclusion
temporal and reclusion perpetua.
Less grave felonies are punished with penalties which in their maximum
period are correctional, thus the maximum period of the penalty must be destierro,
suspension, arresto mayor, or prision correccional.
Light felonies are infractions punished with arresto menor or fine of not
exceeding Forty (P40,000.00) Thousand pesos or below.
a. If the felony is punishable; (Article 7 on light felonies)
b. Whether the accessory is liable; (Article 16)
c. Whether a complex crime was committed; (Article 48)
d. The duration of the subsidiary penalty; (Article 39, no. 2)
e. The duration of the detention in case of failure to post the bond to keep the
peace; (Article 35)
f. Whether the crime has prescribed; (Article 90) and
g. The proper penalty for quasi-offenses. (Article 365)

Article 10 – Offenses not subject to the provisions of this Code. – Offenses which
are or in the future may be punishable under special laws are not subject to the
provisions of this Code. This Code shall be supplementary to such laws, unless the
latter should specially provide the contrary.
What is the rule for offenses not subject to the provision 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.

60
 Special penal laws define and penalize crimes not included in the Code; they
are different from those defined and punished therein.
The law has long divided crimes into acts wrong in themselves (mala in se)
and acts which would not be wrong but for the fact that positive law forbids them
(mala prohibita). The distinction is important with reference to the intent with which
a wrongful act is done. In acts mala prohibita, the only inquiry is, has the law been
violated? When an act is illegal, the intent of the offender is immaterial. (Dunlao vs
CA, G.R. No. 111343, August 22, 1996)
The general rule is that special laws are not subject to the provisions of the
Revised Penal Code. The first sentence of Article 10 is a superfluity for it merely
expresses the cardinal rule in statutory construction that special law prevails over
general rule. Thus, the circumstances affecting criminal liability (Articles 11 to 15) are
not applicable to violations of special laws.
The second sentence is the heart and soul of article. The Code shall have
supplementary application to the special laws whenever the latter uses the
nomenclature of penalties in the Code, thus indicating the intent of Congress to
make the Code apply suppletorily, necessarily, with its duration, correlation and legal
effects under its system of penalties. (People vs. Simon, G.R. No. 930280, July 29,
1994) (Boado)
The suppletory effect of the Code to special laws under this article cannot
be invoked where there is legal or physical impossibility of or a prohibition in special
law against such supplementary application. Where the special law expressly grants
the court discretion in applying the penalty prescribed for the offense, there is no
room for the application of the Code.
When special laws use the nomenclature of the penalties in the Revised
Penal Code, the effects are:
a. The system of penalties under the Revised Penal Code shall apply, hence,
modifying circumstances shall be considered in the determination of
penalties;
b. The rules under the Code shall be followed in the imposition of penalties
under the Indeterminate sentence Law, not the rules for special laws;
c. The use of “RPC-penalties” does not convert offense into malum in se but
remains to be malum prohibitum.
Dolo is not required in crimes punished by a special statute like the Anti-
Fencing Law of 1979, The Child Abuse Law or BP 22, because it is the act alone,
irrespective of the motives which constitute the offense. Verily, when it was proved
that petitioner committed the unlawful acts alleged in the information, it was
properly presumed that they were committed with full knowledge and with criminal

61
intent, and it was incumbent upon him to rebut such a presumption. (Lim vs. CA, G.R.
No. 100311, May 18, 1993) (Boado)
Special laws which are mere amendments of the provisions of the Revised
Penal Code, such as the Anti-Cattle Rustling Law modifying articles 308, 309 and 310,
is thus not a true special law. (Taer vs CA; Canta vs. People)
Differentiate “Intent to Commit a Crime” from “Intent to Perpetrate the Act.”
When the crime is punished by a special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the offender has the intent to perpetrate
the act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously
intended to commit a crime; but he did intend to commit an act, and that act is, by
the very nature of the things, the crime itself. In the first (intent to commit the crime),
there must be a criminal intent; while in the second (intent to perpetrate the act), it
is enough that the prohibited act is done freely and consciously. (Elenita C. Fajardo
v. People, G.R. No. 190889, January 10, 2011).
Can a special law use the nomenclature of penalties provided under the Revised
Penal Code?
Yes. The Supreme Court in Sanchez vs. People, 588 SCRA 747, June 5, 2009,
stressed that although R.A. No. 7610 is a special law, the rules in the Revised Penal
Code for graduating penalties by degrees or determining the proper period should
be applied. The penalty for Other Acts of Child Abuse is prision mayor in its minimum
period. This penalty is derived from and defined in the Revised Penal Code.
A felony cannot be complexed with an offense. Hence, rape cannot be
complexed with violation of Section 5 (b) of RA 7610. (People vs. Abay, G.R. No.
1777752, February 24, 2009)

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

In the Philippines, penal laws subscribe to the classical theory hence, there
is a predetermined penalty for each crime. It is the office of modifying circumstances
to increase or decrease the penalty in accordance with the presence or absence of
circumstances showing the moral status of the offender.
1. The circumstances which affect or modify criminal liability are:

a. Justifying – Article 11
b. Exempting – Article 12
c. Mitigating – Articles 13 and 15
d. Aggravating – Articles 14 and 15
e. Absolutory – exempting circumstances outside Article 12

62
 f. Extenuating – mitigating circumstances not found in Article 13, such as
concealment of dishonour in abortion and abandonment of wife by the
husband in adultery.

2. Absolutory circumstances:

a. Instigation due to public policy;

b. Article 6(3) – spontaneous desistance in the attempted stage unless the overt
act committed constitutes another crime;
c. Article 7 – attempted/frustrated light felonies except those against persons
or property;
d. Article 16 – accessories in light felonies;
e. Article 20 – accessories-relatives other than profiting in the crime;
f. Article 247 – injuries except serious physical injuries;
g. Article 332 – certain relatives in theft, estafa, and malicious mischief;
h. Somnambulism due to lack of intelligence;
i. Mistake of fact due to lack of intent;
j. Total repeal of penal law which decriminalizes the act.
Entrapment is the employment of ways and means for the purpose of
trapping or capturing a lawbreaker; the idea to commit the crime originates from the
accused. In inducement or instigation the criminal intent originates in the mind of
the instigator and the accused is lured into the commission of the offense charged in
order to prosecute him. (People vs. Ramos, Jr., G.R. No. 88301, October 28, 1991)
A buy-bust is a form of entrapment that in recent years has been accepted
as a valid means of arresting violators of the Dangerous Drugs Law. It is commonly
employed by police officers as an effective way of apprehending law offenders in the
act of committing a crime.
In entrapment, it is necessary that a buy- bust operation occurred,
otherwise, it will be considered in case of doubt as instigation. Instigation is an
absolutory cause akin to an exempting circumstance. Even without the money to buy
the marijuana so long as the police officer went through the motion as a buyer and
his offer was accepted by the appellant and the marijuana delivered to police officer,
the crime was consummated by the delivery of the goods. (People vs. Utoh Lakibul,
G.R. No. 94337, January 27, 1993.)
Instigation and frame-up cannot be both present in a case for they are
incompatible. In instigation, the crime is actually performed by the accused except
that the intent originates from the mind of the inducers. In frame-up, however, the
offense is not committed by the accused. Precisely, the accused is only framed or set
up in a situation leading to a false accusation against him.
Distinctions:

63
 ENTRAPMENT INSTIGATION
a. The mens rea originated from the a. The evil idea originated from the
accused who was merely trapped by peace officer who induced the
the peace officer in flagrante delicto accused to commit the act
b. This is not absolutory as to the b. Absolutory by reason of public policy
offender since he authored the evil
idea
c. Consistent with public policy c. Contrary to public policy
d. Traf for the unwary criminal (People d. Trap for unwary innocent
vs. Marcos, G.R. No. 83325, May 8,
1990
e. The peace officer is without criminal e. The peace officer is a principal by
liability for his acts are in accordance inducement
with law (Boado)

Article 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.

2. Anyone 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 by
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstances 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.

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 article are present and that the person defending be not induced by
revenge, resentment or other evil motive.

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 4. Any person who, in order to avoid an evil or injury, does an 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.

5. Any person who acts in the fulfilment of a duty or in the lawful exercise
of a right or office.

6. Any person who acts in obedience to an order issued by a superior for

some lawful purpose.
Justifying circumstances are those where the act of a person is said to be in
accordance with law, so that such persn is deemed not to have transgressed the law
and is free from both criminal and civil liability.
Justifying circumstances are those where the acts of the actor are in
accordance with law and hence he incurs no criminal liability. Since there is no crime,
there is no criminal and hence no civil liability, except under Article 11, par 4.
The justifying circumstances are
a. Defense of self, of relatives, and of strangers;
b. State of necessity;
c. Fulfillment of duty; and
d. Obedience to superior order.
Self-defense includes defense of life, chastity, property and honor of the
accused who must prove with clear and convincing evidence the following elements:
a. Unlawful aggression;
b. Reasonable necessity of the means employed to prevent or repel it; and
c. Lack of sufficient provocation on the part of the person defending
himself.
The effect of invoking self-defense is to place the burden in the accused to
prove to the satisfaction of the court the fact of legitimate defense because he
admits the commission of the act complained. The burden of proof, which is proof
of guilt beyond reasonable doubt, is still with the prosecution. But what is shifted is
only the burden of evidence.
Unlawful aggression is the primordial requisite which must at all times be
present. When unlawful aggression is absent, there is no self-defense whether
complete (Article 11) or incomplete (Article 69 and 13 ).

65
 Unlawful aggression must be real or at least imminent. Real aggression
means an attack with physical force or with a weapon such as to cause injury or
danger to life or personal safety. Aggression is imminent if an attack is impending or
at the point of happening. It must be offensive and positively strong.
Example:
When the accused went to the house of the deceased and upon seeing the
former entering their backyard, the latter met him with a knife on his hand and asked
the accused what brought him there, and without saying anything, the accused drew
his gun and shot the deceased, the act of the deceased did not constitute unlawful
aggression as to entitle the accused to claim self defense.
When the aggression no longer exists, such as when the aggressor ran away
after the attack or when the defender was able to wrest the weapon from the
aggressor, there is no need for self-defense. Defender must stop, for when
aggression ceases and he still continued to attack, he becomes the aggressor.
Reasonable necessity of the means employed depends upon the
circumstances surrounding the aggression, the state of mind of the aggressor and
the available weapon at the defender’s disposal. Whether the means employed is
reasonable, will depend upon the nature and quality of the weapon used by the
aggressor, his physical condition, character, size and other circumstances, and those
of the person defending himself, and also the place and occasion of the assult.
“Stand ground when in the right” is the rule which applies when the
aggressor is armed with a weapon and is especially more liberal if the person
attacked is a peace officer in the performance of his duty. This rule has superseded
the principle of “retreat of the wall” which makes it a duty of a person assailed to
retreat as far as he can before he meets the assault with force.
In defense of one’s chastity, there must be imminent or immediate danger
of being rape to justify killing. If it were only acts of lasciviousness, killing is an
unreasonable means.

BAR 2002: Defense of honor

When A arrived home, he found B raping his daughter. Upon seeing A, B ran
away. A took his gun and shot B, killing him. Charged with homicide, A claimed he
acted in defense of his daughter’s honor. Is A correct? If not, can A claim the benefit
of any mitigating circumstance or circumstances?
Suggested answer
No, A cannot validly invoke defense of his daughter’s honor in having killed
B since the rape was already consummated; moreover, B already ran away, hence,
there was no aggression to defend against and no defense to speak of.
66
 A may, however, invoke the benefit of the mitigating circumstance of having
acted in immediate vindication of a grave offense to a descendant, his daughter,
under par. 5, Article 13 of the RPC, as amended.

BAR 2000 : Defense of honor

Osang, a married woman in her early twenties, was sleeping on a banig on
the floor of their nipa hut beside the seashore when she was awakened by the act of
a man mounting her. Thinking that it was her husband, Gardo, who had returned
from fishing in the sea, Osang continued her sleep but allowed the man, who was
actually their neighbour, Julio, to have sexual intercourse with her. After Julio
satisfied himself, he said “Salamat Osang” as he turned to leave. Only then did Osang
realize that the man was not her husband. Enraged, Osang grabbed a balisong from
the wall and stabbed Julio to death. When tried for homicide, Osang claimed defense
of honor. Should the claim be sustained? Why?
Suggested answer
No, Osang’s claim of defense of honor should not be sustained because the
aggression on her honor had ceased when she stabbed the aggressor. In defense of
rights under paragraph 1, Art. 11 of the RPC, it is required inter alia that there be (1)
unlawful aggression, and (2) reasonable necessity of the means employed to prevent
or repel it. The unlawful aggression must be continuing when the aggressor was
injured or disabled by the person making a defense.
But if the aggression that was begun by the injured or disabled party already
ceased to exist when the accused attacked him, as in the case at bar, the attack made
is a retaliation, and not a defense. Paragraph 1, Article 11 of RPC does not govern.
Hence, Osang’s act of stabbing Julio to death after the sexual intercourse
was finished, is not defense of honor but an immediate vindication of a grave offense
committed against her, which is only mitigating.

Defense of Honor – BAR 1998

One night, Una, a young married woman, was sound asleep in her bedroom,
when she felt a man on top of her. Thinking it was her husband Tito, who came home
a day early from his business trip, Una let him have sex with her. After the act, the
mand said, “I hope you enjoyed it as much as I did.” Not recognizing the voice, it
dawned upon Una that the man was not Tito, her husband. Furious, Una took out
Tito’s gun and shot the man. Charged with homicide, Una denies culpability on the
ground of defense of honor. Is her claim tenable?

67
Suggested answer
No, Una’s claim that she acted in defense of honor, is not tenable because
the unlawful aggression on her honor had already ceased. Defense of honor as
included in self-defense, must have been done to prevent or repel an unlawful
aggression. There is no defense to speak of where the unlawful aggression no longer
exists.
In the crime of slander, slander may be a necessary means to repel slander.
But it must not be more than needed to defend oneself from the defamatory
remarks.
In defense of property, killing is not justified. There must in addition, be the
necessity to save another life. If the aggression is on property, even if there was no
attack on the defender or owner or possessor, defense is proper but not to the
extent of killing the aggressor, otherwise the means used to repel or prevent the
aggression will not be reasonable. (People vs. Narvaez, G.R. Nos L-33466-67, April
20, 1983)

BAR 2003 Defense of property

The accused lived with family in a neighbourhood that often was the scene
of frequent robberies. At one time, past midnight, the accused went downstairs with
a loaded gun to investigate what he thought were footsteps of an uninvited guest.
After seeing what appeared to him an armed stranger looking around and out to rob
the house, he fired his gun seriously injuring the man. When the lights were turned
on, the unfortunate victim turned out to be a brother-in-law on is way to the kitchen
to get some light snacks. The accused was indicted for serious physical injuries.
Should the accused, given the circumstances, be convicted or acquitted? Why?
Suggested answer
The accused should be convicted because, even assuming the facts to be
true in his belief, his act of shooting a burglar when there is no unlawful aggression
on his person is not justified. Defense of property or property right does not justify
the act of firing a gun at a burglar unless the life and limb of the accused is already
in immiment and immediate danger. Although the accused acted out of a
misapprehension of the facts, he is not absolved from criminal liability.
Alternative answer
Considering the given circumstances, namely; the frequent robberies in the
neighbourhood, the time was past midnight, and the victim burglar in the dark and
inside the house, the accused could have entertained an honest belief that his life
and limb or those of his family are already in immediate and imminent danger.
Hence, it may be reasonable to accept that he acted out of an honest mistake of fact

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and therefore without criminal intent. An honest mistake of fact negatives criminal
intent and thus absolves the accused from criminal liability.

BAR 1996 – Defense of property

A security guard, upon seeing a man scale the wall of a factory compound
which he was guarding, shot and killed the latter. Upon investigation by the police
who thereafter arrived at the scene of the shooting, it was discovered that the victim
was unarmed. When prosecuted for homicide, the security guard claimed that he
merely acted in self-defense of property and in the performance of his duty as a
security guard. If you were the judge, would you convict him of homicide? Explain.
Suggested answer
Yes, I would convict the security guard of Homicide if I were the judge,
because his claim of having acted in defense of property and in performance of a
duty cannot be fully justified. Even assuming that the victim was scaling the wall of
the factory compound to commit a crime inside the same, shooting him is never
justifiable, even admitting that such act is considered unlawful aggression on
property rights. In People vs. Narvaes, 121 SCRA 329, a person is justified to defend
his property rights, but all the elements of self-defense under Art. 11, must be
present. In the instant case, just like in Narvaes, the second element (reasonable
necessity of the means employed) is absent. Hence, should be convicted of homicide
but entitled to incomplete self-defense.
For defense or relatives, the first and second requisites of “self defense”
must be present, and the third requisite becomes “in case the provocation was given
by the person attacked, the person defending had no part therein.”
Lack of sufficient provocation on the part of the person defending himself
shows that there may have been provocation but it should not be sufficient and it
must not immediately precede the act. It is not enough that the provocative act be
unreasonable or annoying.
As an element of self-defense, there must be lack of sufficient provocation
on the part of the defender; as a mitigating circumstance, there must be presence
thereof on the part of the offended.
For defense of strangers, the first and second elements of “self-defense”
must be in attendance, the third requisite is that “the person defending is not
induced by revenge, resentment or other evil motives.”
Beyond the 4th degrees of consanguinity is defense of strangers and the third
element in defense of relatives will be replaced.
The presence or lack of all or some of the requisites for the defense have the
following effects:
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 a. All requisites are present – justifying circumstance; (Article 11)
b. Two requisites are present, unlawful aggression plus another –
privileged mitigating circumstance; (Article 69)

c. One requisite present which must be unlawful aggression – ordinary

mitigating circumstance. (Article 13, no. 1)

BAR 2002—Defense of stranger

A chanced upon three men who were attacking B with fist blows. C, one of
the men, was about to stab B with a knife. Not knowing that B was actually the
aggressor because he had earlier challenged the three men to a fight, A shot C as the
latter was about to stab B. May A invoke the defense of a stranger as a justifying
circumstance in his favour? Why?
Suggested answer
Yes. A may invoke the justifying circumstance of defense of stranger since
he was not involved in the fight and he shot C when the latter was about to stab B.
There being no indication that A was induced by revenge, resentment or any other
evil motive in shooting C, his act is justified under par. 3, Article 11 of the RPC, as
amended.
The elements of state of necessity are:
a. The evil sought to be avoided actually exists;
b. The injury feared be greater than that done to avoid it; and
c. There is no other practical and less harmful means of preventing it.
The state of necessity must not be caused by the negligence or
violation of the law of the actor otherwise this benefit cannot be
invoked.
Under Article 101, the civil liability shall be borne not by the actor
but the ones benefited by the avoidance of the evil.
Example
While X was carefully driving his Nissan Patrol in the highway, a cargo truck
suddenly crossed his path. If X would swerve his vehicle to the left he would fall into
a deep ravine and if he would swerve to the right he would hit and kill a person
standing on the side of the road. Under this circumstance, he was made to choose
between losing his life if he fell into the ravine or kill an innocent person. Even if he
would choose the latter and ran over and kill a person, he would be justified under
the principle of the state of necessity.
The elements of fulfilment of duty or exercise of right or office are:

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 a. The offender acted in the performance of a duty or the lawful exercise
of a right or office;
b. The injury caused or the offense committed is the necessary
consequence of the due performance of such right or office.
Under the doctrine of “self-help” in Article 429 of the Civil Code, the law
justifies the act of the owner or lawful possessor of a thing in using force necessary
to protect his proprietary or possessory rights. He must however exercise this right
at the very moment that he is being deprived of his property. When possession has
already been lost, he must resort to judicial process in reclaiming his property
(German Management and Services, Inc. vs. Court of Appeals, 177 SCRA 495)
otherwise he could be liable for coercion. (Boado)
Upon hearing of a commotion from a nearby store, policeman X lost no time
for going there to find out what was the commotion all about. Upon arriving there,
he saw a person brandishing his fighting bolo challenging and attempting to attack
the persons around. X ordered him to drop his bolo and to surrender to him as a
police authority, but the person refused and instead, ran away.
When X shot and killed the person, the former would not be criminally liable
as he was in the fulfilment of his duty and the death of the person was the necessary
consequence of the due performance of his duty.
The elements of obedience to superior order are:
a. An order has been issued by a superior;
b. The order is for a legal purpose;
c. The means used to carry out such order is lawful.
Even if the order is illegal, if it is apparently legal, and the subordinate
is not aware of its illegality, the subordinate is not liable. (Tabuena vs.
Sandiganbayan, G.R. Nos. 103501-03, February 17, 1997)
Example
Upon proper application of the police authorities, and after conducting the
proper hearing, Judge X issued a search warrant against Y. The searh warrant was
addressed to police Precinct 1 of Iloilo City. If PO1 T implemented the search warrant
in violation of Article 129 of the Revised Penal Code because he exceeded his
authority or used unnecessary severity in executing the same, he cannot avail himself
of this justifying circumstance under this provision.

Article 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.

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 When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court 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.
2. A person fifteen (15) years or under; (Section 6, RA 9344)
3. A person over fifteen (15) years of age and below eigtheen (18) years of age,
unless he has acted with discernment, in which case, he shall be subject to
intervention program; (Section 6, RA 9344)
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;
5. Any person who acts under the compulsion of an irresistible force;
6. Any person who acts under the impulse of an uncontrollable fear of an equal
or greater injury;
7. Any person who fails to perform an act required by law, when prevented by
some lawful or insuperable cause.
Technically, one who acts by virtue of any of the exempting circumstances
commits a crime, although by the complete absence of any of the conditions which
constitutes free will or voluntariness of the act, no criminal lianbility arise.
Take note that any of the circumstances mentioned in Article 12 is a matter
of defense and the same must be proved by the accused to the satisfaction of the
court.
It should be recalled that just like in “self-defense” when the accused
invokes any of the exempting circumstances, the court may order inverse trial
wherein it is the accused that will present evidence first and by the prosecution on
rebuttal.
The exempting circumstances are
a. Imbecility/insanity
b. Minority
c. Accident
d. Compulsion of irresistible force
e. Impulse of uncontrollable fear
f. Insuperable or lawful cause
Distinctions between justifying and exempting circumstances
JUSTIFYING EXEMPTING
a. The act is legal a. The act is criminal
b. There is no crime, hence no criminal b. There is a crime, hence a criminal
c. Since there is no crime, there is no c. There is a crime and civil liability but
criminal and civil liabilities the law exempts the actor from
criminal liabilities
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 d. The emphasis of the law is on the act, d. The emphasis of the law is on the
e.g., self-defense actor, e.g., insane, imbecile

There must be a complete deprivation of intelligence in committing the act,

the accused is deprived of reason, he acts without the least discernment because
there is complete absence of power of discernment, or there is a total deprivation of
freedom of the will. (People vs. Dungo, G.R. No. 89420, July 31, 1991) Mere
abnormality of the mental faculties will not exclude imputability. (People vs. Danao,
G.R. No. 96832, November 19, 1992)
When insanity is alleged, the evidence on this point must refer to the time
preceding the act to the very moment of its execution. If the evidence pointed to the
insanity subsequent to the commission of the crime, the accused cannot be
acquitted. He is presumed to be sane when he committed it.
Insanity is a defense in the nature of confession and avoidance, and as such
must be proved beyond reasonable doubt.
Article 79 refers to insanity occurring after the commission of the crime,
whereas, insanity in Article 12 refers to insanity at the very moment the crime is
being committed. “When the 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 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 two tests are: (a) Cognition test or complete deprivation of intelligence
in committing the criminal act, and (b) Volition test or totaldeprivation of the
freedom of the will. The volition test does not suffice to exempt from liability; it must
be accompanied by the cognition test which alone is sufficient to exempt from
liability, (id).
Imbecility, like insanity, is a defense which pertains to the mental condition
of a person. (Buenaflor, G.R. No. 93752, July 15, 1992)
In exempting circumstance of imbecility, what is important is the mental age
of the accused. If the mental age of the accused is two years, he is an idiot; if seven
years old, he is an imbecile. (People v. Butiong, G.R. No. 168932, October 19, 2011).
An idiot or imbecile is exempt from criminal liability. On the other hand, if the mental
age of the accuded is 12 years old, he is feebleminded or moron. A feeble minded
accused is not an imbecile; hence, he is not exempt from criminal liability by reason
of imbecility (People vs. Nunex, G.R. No. 112429-30, July 23, 1997); but mitigating
circumstance of mental illness may be appreciated in is favour. (Campanilla)

73
 In People vs. Roxas, the chronological age of the victim is 18 years old while
his mental age is nine (9) years old. Exempting circumstance of minority cannot be
appreciated since he is not a minor. His actual age is not below 18 years. Neither can
the exempting circumstance of imbecility be appreciated. He is not imbecile since his
mental age is not seven years. (Campanilla)
For accident to be appreciated, the following must concur:
a. The accused was performing a lawful act with due care;
b. The injury is caused by mere accident; and
c. There was no fault or intent of causing the injury. (People vs. Mat-an, G.R.
No. 91115, December 29, 1992)
This is because when the act is with fault, it will fall under culpa; when with
intent it will become an intentional felony. The accident must not be foreseeable or
there will be fault or criminal negligence. The basis of exemption from criminal
liability for accident is the lack of criminal intent. For an accident to become an
exempting circumstance, the act has to be lawful. The act of firing a shotgun at
another is not a lawful act. (People vs. Agliday, G.R. No. 140794, October 16, 2001)
An accident is an occurrence that “happens outside the sway of our will, and
although it comes about through some act of our will, lies beyond the bounds of
humanly foreseeable consequences.” It connotes the absence of criminal intent.
Here, appellant got his shotgun and returned to the kitchen to shoot his son, who
had intervened in his quarrel with his wife. A shotgun would not have fired off
without first being cocked. Undoubtedly, appellant cocked the shotgun before
discharging it, showing a clear intent to fire it at someone. (People vs. Agliday)
Drivers of vehicle who bump the rear of another vehicle are presumed to be
the cause of the accident, unless contradicted by other evidence. The rationale
behind this presumption is that the driver of the rear vehicle has full control of the
situation as he is in a position to observe the vehicle in front of him. Consequently,
the responsibility to avoid the collision with the front vehicle lies with the driver of
the rear vehicle. He is the last chance of avoiding the accident. (Campanilla)
Example:
The blow out of a tire, there being no proof of excessive speed, resulting in the
death of a passenger of the truck, is also accidental (People v. Hatton).
An accidental shooting due to legitimate self-defense is exempting (People v.
Trinidad)
If in struggling with another who sought to wrest away his bolo, to defend his
possession the defendant wounded a bystander, who died as a consequence, the
injury causes is accidental. (People v. Bindoy, 56 Phil. 15).

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Irresistible force has the following elements:
a. The force must be physical, must come from an outside source and the
accused must act not only without a will but also against his will.
b. The actor must be reduced to a mere instrument, such that the element of
freedom is wanting.
c. The 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 if the act is not done.
Simply put, the irresistible force must be physical and must come from a third
person. It cannot spring primarily from the offender himself. (People v. Fernando, 33
SCRA 149). A person who acts under the compulsion of an irresistible force, like one
who acts under the impulse of an uncontrollable fear of equal or greater injury is
exempt from criminal liability because he does not act with freedom.
Examples:
If a person was struck with the butts of the guns of those who killed another to
compel him to bury their victims, he is not liable as an accessory because he acted
under the compulsion of irresistible force. (US v. Caballeros, 4 Phil. 850).
The elements of impulse of uncontrollable fear are:
a. Threat which caused the fear of an evil greater than or at least equal to that
which the accused was required to commit;
b. It promised an evil of such gravity and imminence that the ordinary man
would have succumbed to it.
Impulse of uncontrollable fear and irresistible force are the same. They are
both grounded on duress or complete absence of freedom of action on the
part of offender.

If one is compelled under fear of death to join the rebels, he is not liable for
rebellion because he acted under the impulse of uncontrollable fear of an equal or
greater injury.
Insuperable cause is an exempting circumstance which applies to felonies
by omission. The law imposes a duty on the offender to perform an act but his failure
to do so is due to a lawful or insuperable cause. For instance, Article 125 provides for
the number of hours when a person arrested must be delivered to the judicial
authorities. Failure of the law enforcers to do so on valid grounds such as request of
the arrestee for preliminary investigation will result to waiver of the provision of
Article 125.
A mother who at the time of childbirth was overcome by severe dizziness
and extreme debility, and left the child in a thicket where said child died, is not liable
for infanticide, because it was physically impossible for her to take home the child.

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The severe dizziness and extreme debility of the woman constitute an insuperable
cause. (Campanilla)
Distinction between uncontrollable fear and irresistible force
(a) The irresistible force is a physical force coming from a stranger while
uncontrollable fer is an impulse coming from within the person of the actor
himself.

(b) In irresistible force, the actor acts without a will while in uncontrollable fear,
the actor acts not against his will but because he is endangered by the fear.

(c) Both refer to external influences and not to physiological need.

(d) The exempting circumstance in par. e of Art. 12 is also based on complete

absence of freedom.

BAR 2000
While they were standing in line awaiting their vaccination at the school
clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months
and 13 days old classmates in Grade 5 at the Sampaloc Elementary School. Irritated,
Katreena turned around and swung at Pomping with a ball pen. The top of the ball
pen hit the right eye of Pomping which bled profusely. Realizing what she had
caused, Katreena immediately helped Pomping. When investigated, she freely
admitted to the school principal that she was responsible for the injury to Pomping’s
eye. After the incident, she executed a statement admitting her culpability. Due to
the injury, Pomping lost his right eye. (a) Is Katreena criminally liable? Why. (2)
Discuss the attendant circumstances and effects thereof.
Suggested answer
(a) No. Katreena is not criminally liable although she is civilly liable she is civilly
liable. Being a minor less than fifteen (15) year sold although over nine (9)
years of age, she is generally exempt from criminal liability. The exception is
where the prosecution proved that the act was committed with discernment.
The burden is upon the prosecution to prove that the accused acted with
discernment. The presumption is that such minor acted with without
discernment, and this is strengthened by the fact that Katreena only reacted
with a ballpen which she must be using in class at the time, and only to stop
Pomping’s vexatious act of repeatedly pulling her ponytail. In other words, the
injury was accidental.

(b) The attendant circumstances which may be considered are:

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 (1) Minority of the accused as an exempting circumstance;
(2) No intention to commit so grave a wrong;
(3) Sufficient provocation.

Article 13 – Mitigating Circumstances. – The following are mitigating

circumstances:
1. Those mentioned in the preceding chapter, when all the requisites necessary
to justify the act or to exempt from criminal liability in the respective cases
are not attendant.
2. That the offender is under eighteen (18) years of age or over seventy (70)
years. In the case of the minor, he shall be proceeded against in accordance
with the provisions of Article 80.
3. That the offender had no intention to commit so grave a wrong as that
committed.
4. Tha sufficient provocation or threat on the part of the offender party
immediately preceded the act.
5. That the act was committed in the immediate vindication of a grave offense
to the one committing the felony (delito), his spouse, ascendants,
descendants, legitimate natural or adpted brothers or sisters, or relatives by
affinity within the same degree.
6. That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.
7. That the offender had voluntarily surrendered himself to a person in
authority or his agent, or that he had voluntarily confessed his guilt before
the court prior to the presentation of the evidence for the prosecution.
8. That the offender is deaf and dumb, blind, or otherwise suffering some
physical defect which thus restricts his means of action, defense, or
communication with bis fellow beings.
9. Such illness of the offender as would diminish the exercise of the will-power
of the offendefr without however depriving him of consciousness of his acts.
10.And, finally, any other circumstances of a similar nature and analogous to
those above mentioned.
Mitigating circumstances shows lesser perversity of the offender and are
considered to lower the penalty imposable generally to the minimum period of the
penalty prescribed in the law. They are matters of defense which do not have to be
alleged in the information.
The rationale behind the whole concept of mitigating circumstance is to
show mercy and some extent of leniency in favour of accused who has nevertheless

77
shown lesser perversity in the commission of an offense. Thus, where the evidence
on record bespeaks of vileness and depravity, no mercy or leniency should be
accorded an accused who should be made to suffer in full for acts perpetrated with
complete voluntariness and intent for their tragic consequences.
Article 13 enumerates ordinary mitigating circumstances with the effect of
reducing the penalty to the minimum period. However, in case of:
a. Minority, it is never ordinary but is always privileged mitigating if not
altogether exempting; and
b. Incompleteness of the requisites to exempt from criminal liability or justify
the act which becomes privileged mitigating when majority of the
requisites are present under paragraph 1 for Article 69 which allows
reduction of penalty by a degree.
Outside of Article 13 are extenuating circumstances (such as concealment of
dishonour on the part of the mother in infanticide) which have the effect of reducing
the penalty either to the minimum period (ordinary mitigating) or by degree
(privileged mitigating).

Kinds of mitigating circumstances:

a. Ordinary – lowers the penalty to the minimum period. The penalty must be
divisible for an indivisible period has no penalty.
b. Privileged- lowers the penalty prescribed by one or more degrees whether
it be a divisible or indivisible penalty.
c. Specific- applies to a specific felony like concealment of dishonour in the
case of abortion by the pregnant woman and could either be ordinary or
privileged depending upon the extent of reduction of penalty.

Distinctions between ordinary and privileged mitigating circumstances:

a. Ordinary can be offset by generic aggravating circumstance; Privileged
cannot be offset by any kind of aggravating circumstance.

b. Ordinary mitigating lowers the penalty prescribed to the minimum period

except where there are 2 ordinary mitigating and absolutely no aggravating
circumstance in which case the penalty is lowered by 1 degree only.
Privileged mitigating lowers the penalty by degree. Thus, if a provision of
the Revised Penal Code states that the penalty for a particular felony is
lowered by one or two degrees in view of the presence of a particular
circumstances which cannot be offset by any generic aggravating.
Example: Article 69 on incomplete justification/exemption.

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 c. Ordinary mitigating is not considered in the determination of the proper
penalty when the penalty prescribed is a single indivisible penalty
(paragraph 1, Article 63). Privileged is considered whatever penalty is
imposable.

The mitigating circumstances are:

a. Incomplete justifying or exempting circumstances;
b. Minority/senility;
c. Praeter intentionem;
d. Sufficient provocation or threat;
e. Immediate vindication of a grave offense;
f. Passion or obfuscation;
g. Voluntarily surrender;
h. Voluntarily plea of guilt;
i. Deaf and dumb blind or other physical defect;
j. Illness;
k. Analogous circumstances.
The first mitigating circumstance is the incompleteness of the requirements
to justify the act or exempt from criminal liability under Articles 11 and 12. This
should be related to Article 69 which prescribes a privileged mitigating circumstance
if majority of the requisitesto exempt or justify are present. Otherwise, Article 13,
no. 1 shall apply, and the penalty shall be lowered to the minimum period only.
When two of the three requisites mentioned there are present (for example,
unlawful aggression and any of the other two), the case must not be considered as
one in which an ordinary or generic mitigating circumstance is present. Instead, it
should be considereda privileged mitigating circumstance referred to in Article 69 of
the Revised Penal Code.
Thus, if in self-defense there was unlawfull aggression on the part of the
deceased, the means employed to prevent or repel it was reasonable, but the one
making a defense gave sufficient provocation, he is entitled to a privileged mitigating
circumstance, because the majority of the conditions required to justify the act is
present.
Minority is always a privileged mitigating circumstance for pursuant to
Article 68(2) when the offender is over 15 but less than 18, the penalty shall be 1
degree lower but in the proper period. If he is 15 or under he is now absolutely
exempt from criminal prosecution by virtue of R.A. 9344 which repealed Article
68(1).

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 If the child reached 18 years of age while under suspended sentence, the
court shall determine whether: a) to discharge the child in accordance with the
applicable provisions of R.A. 9344; b) to order execution of sentence; c) to extend
the suspended sentence for a specified period or until he reaches the maximum age
of 21. (Section 40)
The offender must be a minor under 18 at the time of the commission of the
crime. If he were then 18 or over, he is no longer a minor in the eyes of the law.
Penal laws should be liberally construed in favour of the offender.
Considering the gravity of the offense and in the interest of justice, the presentation
and admission of the birth certificate of the accused to prove minority should be
allowed although said certificate was not presented or offered in the trial court. An
official document prepared by the DSWD in the exercise of its functions and
incorporated in the case records can be taken judicial notice ex mero motu. (People
vs Regalario, 220 SCRA 368)
Senility (over 70) is an ordinary mitigating circumstance. Prior to R.A. 9346
prohibiting the imposition of the death penalty, when the penalty imposable is death
it shall be reduced to reclusion perpetua pursuant to Article 83, thus partaking of the
nature of a privileged mitigating circumstance. Likewise, senility entitles the convict
to pardon under Article 160, unless he is a habitual delinquent or his conduct
disqualifies him.

The elements of sufficient provocation are:

a. The provocation must be sufficient;
b. It must be immediate to the commission of the crime;
c. It must originate from the offended party.
Provocation is immediate if no interval of time elapsed between the
provocation and the commission of the crime. (People vs. Pagal, 79 SCRA 570).
Sufficient provocation as a requisite of incomplete self-defense is different
from sufficient provocation as a mitigating circumstance. As an element of self-
defense, it requires its absence on the part of the person defending himself; as a
mitigating circumstance, it pertains to its presence on the part of the offended party.
(People vs. CA, G.R. No. 103613, February 23, 2001)
In praeter intentionem or the mitigating circumstance of lack of intention
to commit so grave a wrong.
The intent of the accused may be gleaned from his external acts, like the kind of
weapon he used in committing the crime, the parts of the body of the victim where
the injury was inflicted and how this injury was inflicted (People v. Amoto, 111 SCRA
39).

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Example
For coming in late drunk, H slapped his wife, W, who fell and her head hitting
the edge of the table. Suffering from internal hemorrhage, W died in the hospital. If
prosecuted, H can avail himself of the rule of praeter intentionem.
The acts of the offender in striking at the victim with his fist, who fell down
and a result hit hos head on the pavement causing cerebral hemorrhage which cause
his death (People v. Cagoco, 58nPhil. 524).
In immediate vindication of grave offense, “offense” need not be a crime. It
may be any act or event which offends the accused causing mental agony to him and
moves him to vindicate himself of such offense.
For instance, insulting an old man (U.S. vs. Ampar, 37 Phil. 301) or eloping
with the offender’s daughter. (People vs. Diokno, 63 Phil. 601). “Immediate” means
proximate, unlike in sufficient provocation, and allows an interval of time between
the commission of the offense and its vindication as long as the offender is still
suffering from the mental agony brought about by the “offense” to him. (People vs.
Parana, 64 Phil. 331)
Requisites:
1. That there be a grave offense done to the one committing the felony, his
spouse, ascendants, descendants, legitimate, natural or adopted brothers or
sisters, or relatives by affinity within the same degrees;
2. That the felony is committed in vindication of such grave offense. A lapse of
time is allowed between the vindication and the doing of the grave offense.
The act of the victim in eloping with the daughter of the accused is a grave
offense to her family. (People v. Diokno)
In passion or obfuscation it is necessary that it arose from offender’s lawful
sentiments. There must be an act on the part of the offended which is unlawful and
sufficient to excite passion or obfuscation on the accused. Said act must not be far
removed from the commission of the crime by a considerable length of time during
which the offender might have recovered his senses.
This provision requires that –
1. The accused acted upon an impulse.
2. The impulse must be so powerful that it naturally produced passion or
obfuscation in him.
(a) Killing the deceased with whom the offender lived for several years because
she left him to live with another man, is not the passion that is mitigating
because it did not originate from legitimate feelings (US v. Hicks)

81
 (b) If the accused injured the offended party who made indecent propositions to
a woman with whom the accused had illicit relations, the obfuscation of the
accused is not mitigating because his relationship with the woman was
illegitimate (People v. Olgado, G.R. No. L – 4406, March 31, 1952).

(c) But killing a common law wife whom the accused surprised in flagrante in
carnal intercourse with a friend is passion that is mitigating because the
offender acted under an impulse caused by a sudden discovery that the
woman proved untrue to him (US vs. Dela Cruz)

(d) The killing by the accused of her common law husband with whom she lived
for 15 years but who married another woman, produced passion that is
mitigating because it arose from that natural feeling of despair in a woman
who saw her life broken and found herself abandoned by the very man for
whom she made so many sacricies (People vs. Engay).

(e) There is passion or obfuscation where the accused boxed the victim after he
saw the latter box his four-year old son. The accused did so, momentarily
blinded by anger and lost sight of the fact that his son’s adversary was but a
nine-year old boy (People vs. Castro, 117 SCRA 1014)
Voluntary surrender and voluntary plea are independent of each other and
can be simultaneously and separately considered in favour of the offender being
based on different grounds.
The elements of voluntary surrender are:
a. The offender surrendered to a person in authority or his agent;
b. The offender surrendered before arrest is effected;
c. It must be voluntary, i.e., spontaneous and must show the intent of the
accused to submit himself unconditionally to the authorities, either
because he acknowledges his guilt or he wishes to save them the trouble
and expense incidental to his search and capture;
d. There is no pending warrant of arrest or information filed. (People vs.
Taraya, G.R. No. 135551, October 27, 2000)
Voluntary surrender can be appreciated even if the accused turned
themselves one week after the crime. The fact is they voluntarily surrendered to the
police before arrest could be effected. (People vs. Amaguin, G.R. Nos. 54344-45,
January 10, 1994)
Since it was the police who went looking for the accused immediately after
obtaining information from eye witnesses as to who had perpetrated the crime even
if he did not resist arrest or deny his criminal act, this cannot be equated with
voluntary surrender. (People vs. Rebamontan, G.R. No. 125318, April 13, 1999)

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 Taraya, G.R. No. 135551, October 27, 2000, added a fourth requisite that
there was no pending warrant of arrest or information filed. When AA learned that
the police were looking for him for the death of SS, he immediately went to the police
station where he confessed to killing SS in self-defense. However, the surrender does
not constitute as a mitigating circumstance for he had a pending arrant of arrest
issued five days before his surrender. His arrest by that time was imminent.

BAR 1997: Plea of Guilty; Voluntary Surrender.

After killing the victim, the accused absconded. He succeeded in eluding the
police until he surfaced and surrendered to the authorities about two (2) years later.
Charged with murder, he pleaded not guilty but, after the prosecution had presented
two witnesses implicating him to the crime, he changed his plea to that of guilty.
Should the mitigating circumstances of ‘voluntary surrender’ and ‘plea of guilty’ be
considered in favour of the accsued?
Suggested answer
Voluntary surrender should be considered as a mitigating circumstance.
After two years, the police were still unaware of the whereabouts of the accused and
the latter could have continued to elude arrest. Accordingly, the surrender of the
accused should be considered mitigating because it was done spontaneously,
indicative of the remorse or repentance on the part of said accused and therefore,
by his surrender, the accused saved the Government expenses, efforts, and time.
Alternative answer
Voluntary surrender may not be appreciated in favour of the accused. Two
years is too long a time to consider the surrender as spontaneous (People vs. Ablao,
183 SCRA 658). For sure the government had already incurred considerable efforts
and expenses in looking for the accused.

BAR 1996 – Voluntary surrender

Hilario, upon seeing his son engaged in a scuffle with Rene, stabbed and
killed the latter. After the stabbing, he brought his son home. The Chief of police of
the town, accompanied by several policemen, went to Hilario’s house, Hilario, upon
seeing the approaching policemen, came down from his house to meet them and
voluntarily went with them to the police station to be investigated in connection with
the killing. When eventually charged with convicted with homicide, Hilario, on
appeal, faulted the trial court for not appreciating in his favour the mitigating
circumstance of voluntary surrender. Is he entitled to such a mitigating
circumstance? Explain.

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Suggested answer
Yes, Hilario is entitled to the mitigating circumstance of voluntary surrender.
The crux of the issue is whether the fact that Hilario went home after the incident,
but came down and met the police officers and went with them is considered
“voluntary surrender.” The voluntariness of the surrender is tested if the same is
spontaneous showing the intent of the accused to submit himself unconditionally to
the authorities. This must be either (a) because he acknowledges his guilt, or (b)
because he wishes to save them the trouble and expenses necessarily incurred in his
search and capture. Thus, the act of the accused in hiding after the commission of
the crime, but voluntarily went with the policemen who had gone to his hiding place
to investigate, was held to be mitigating circumstance.

The elements of voluntary plea of guilty are:

a. The plea was made in open court (judicial confession)
b. It was spontaneous and unconditional
c. Made before presentation of the evidence by the prosecution
Voluntary plea of guilty is mitigating because it is an act of repentance and
respect for the law; it indicates a moral disposition in the accused favourable to his
reform. (People v. De la Cruz, 63 Phil. 874)
Example 1
During his arraignment, X entered a plea of not guilty. After the pre-trial
conference was conducted, trial proceeded, and while the direct examination of the
first witness for the prosecution, X through his counsel, asked the court that his
testmonies be discontinued as he was willing to withdraw his former plea of not
guilty to be substituted by a plea of guilty. Should the court allow the discontinuance
of the testimonies of the first witness for the prosecution and thr accused to enter a
plea of guilty? The accused is no longer entitled to this mitigating circumstance as
the prosecution had already presented part of the testimonies of the first witness.
Example 2
X was charged in court for murder. During the arraignment, X offered to the
prosecution to plead guilty to the lesser offense of homicide. The public prosecutor
and the private complainant did not agree. The court proceeded with the trial and
the accused was eventually found guilty of homicide. In this case, the accused is
entitled to the mitigating circumstance of plea of guilty.
An extra-judicial confession is not mitigating because it is not made in open
court. The court must be one of original jurisdiction because it must be made at the
earliest opportunity and before the presentation of the prosecution’s evidence. If
the court where the plea of guilty was made without jurisdiction and later on accused

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pleaded guilty before the proper court, the proceedings before the former is void
while the plea of guilty on the latter is mitigating.
In a case it was stated that a confession of guilt made before the media is
not within the benefit if this provision but should be viewed with caution for there is
the possibility of the law enforcer making use of the media to extract confession from
the suspect.
Voluntary plea of guilty is mitigating because it is an act of repentance and
respect for the law. It indicates a moral disposition in the accused favourable to his
reform.

BAR 1999 – Plea of guilty

An accused charged with the crime of homicide pleaded “not guilty” during
the preliminary investigation before the Office of the Provincial Prosecutor. Upon
the elevation of the case to the Regional Trial court, the Court of competent
jurisdiction, he pleaded guilty freely and voluntarily upon arraignment. Can his plea
of guilty before the RTC be considered spontaneous and thus entitle him to the
mitigating circumstance of spontaneous plea of guilty under Article 13 (7) of the RPC?
Suggested answer
Yes, his plea of guilty before the Regional Trial Court can be considered
spontaneous, for which he is entitled to the mitigating circumstance of plea of guilty.
His plea of not guilty before the Office of the Provincial Prosecutor is immaterial as
it was made during the preliminary investigation only and before an office not
competent to render judgment.
The offender’s being deaf and dumb or blind or otherwise suffering from
some physical defect must be related to the offense committed because the law
requires that the defect has the effect of restricting his means of action, defense or
communication to his fellow beings.
Illness must only diminish and not deprive the offender of the consciousness
of his acts. Otherwise he will be exempt from criminal liability. For instance,
schizophrenia is mitigating because it diminishes but not deprive the accused of the
consciousness of his act.
Analogous circumstances must be similar to those enumerated in Article 13.
Examples of these are:
1. Restitution of the questioned funds by petitioner may be considered
mitigating circumstance in malversation of public funds (Nizurtado vs.
Sandiganbayan, G.R. No. 107383, December 7, 1994) as analogous to
voluntary plea of guilty.

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 2. That petitioner voluntarily took the cow to the municipal hall to place it
unconditionally in the custody of the authorities and thus save them the
trouble of recovering the cow, can be analogous to voluntary surrender.
(Canta vs. People, G.R. No. 140937, Februaru 28, 2001)

3. Extreme poverty is not among the mitigating circumstances enumerated in

Article 13 of the Code and it is doubtful whether it may be considered as a
circumstance of a similar nature or analogous to those mentioned therein.

4. If a person is over 60 years old with failing eyesight is similar to a person

over 70 years old.

5. If the accused was well-know and respected, his act of retaliation when
assaulted during a public dance is similar to vindication.

BAR 2019

Mr. X and Mr. Y engaged in a violent fistfight which Mr. X instigated. This
culminated in Mr. X repeatedly smashing Mr. Y's head on the concrete pavement.
Thereafter, Mr. X left Mr. Y barely breathing and almost dead. A few minutes after
the incident, Mr. X immediately went to the police station to confess what he did
and told the police where he left Mr. Y. Fortunately, the police rescued Mr. Y and he
survived with the help of timely medical intervention. Mr. X was then charged in
court with Frustrated Homicide, to which he openly confessed his guilt upon
arraignment.

(a) Based on the above-stated facts, what is/are the mitigating circumstance/s
that may be appreciated in favor of Mr. X. Explain.

(b) Under the Revised Penal Code, Homicide is punished with the penalty
of reclusion temporal. Without applying the Indeterminate Sentence Law,
what penalty should be imposed against Mr. X assuming that he is found guilty
of the charge of Frustrated Homicide, and that the presence of two (2)
ordinary mitigating circumstances have been duly alleged and proven?
Explain.

Article 14 – Aggravating Circumstances. The following are aggravating

circumstances:
1. That advantage be taken by the offender of his public position.

86
2. That the crime be committed in contempt of or with insult to the public
authorities.
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.
4. That the act be committed with abuse of confidence or obvious
ungratefulness.
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.
6. That the crime be committed in the nighttime 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.

7. That the crime be committed on the occasion of a conflagration, shipwreck,

earthquake, epidemic, or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or person 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.

10.That the offender has been previously punished for an offense to which the
law attaches an equal or greater penalty or two or more crimes to which it
attaches a lighter penalty.
11.That the crime be committed in consideration of a price, reward, or promise.
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.
13.That the act be committed with evident premeditation.
14.That craft, fraud, or disguise be employed.
15.That advantage be taken of superior strenght, or means be employed to
weaken the defense.
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

87
 tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.

17.That means be employed or circumstances brought about which add

ignominy to the natural effects of the act.
18.That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a way not
intended for the purpose.
19.That as a means to the commission of a crime a wall, roof, floor, door, or
window be broken.
20.That the crime be committed with the aid of persons under fifteen years of
age, or by means of motor vehicle, airships, or other similar means.
21.That the wrong done in the commission of the crime be delilberately
augmented by causing other wrong not necessary for its commission.
Aggravating circumstances are those which show greater perversity of the
offender, hence, they have the effect of increasing the penalty.
Aggravating and mitigating circumstances may be distinguished as follows:
1. The list in Article 13 on mitigating circumstance includes analogous
circumstances showing the liberality of the law in favour of the accused; in Article
14 which enumerates aggravating circumstance, the list is exclusive to curtail
discretion of the judge to determine what other circumstances may increase the
penalty.

2. Mitigating circumstance may lower the penalty by degrees as in the case of

privileged mitigating circumstances and of two ordinary mitigating concurring
without any aggravating per Article 64, no. 5; aggravating circumstances, no
matter how many can only increase the penalty to the maximum period within
that penalty prescribed by law. The increase can never be by degree.

3. Mitigating circumstance is a matter of defense which does not have to be alleged

in the information; aggravating circumstances must be alleged in the information
before they can be proved and appreciated.
Generic aggravating circumstances:
Have the effect of the penalty being imposed in the maximum period. Note
that the penalty prescribed in Book II is the maximum imposable, thus the increase
in the penalty cannot be to the next higher degree but only to the maximum period;
Apply to all felonies generally; and
Can be offset by an ordinary mitigating circumstance.

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 The Revised Rules of Criminal Procedure (effective December 1, 2000) requires
that every complaint or information must expressly and specifically allege not only
the qualifying but also the generic aggravating circumstances. The Revised Rules is
applicable to all cases, not only where the aggravating circumstance would increase
the penalty to death. (People vs. Legaspi, G.R. Nos. 1336164-65, April 20, 2001). Prior
to the Revised Rules the non-allegation of generic aggravating circumstances duly
proven in the course of the trial could be taken into account by the trial court in
determining the imposable penalty.
The circumstances enumerated in Article 14 are generic. If some of them are
qualifying in particular crimes such as treachery, evident premeditation, etc. in
murder it is because the specific provision makes them so. However, in order to be
appreciated against the accused, the same should be alleged in the Information and
proved during the trial. Even though proved during the trial but the same was not
alleged in the Information, it could be appreciated against the accused.
Qualifying circumstances:
1. Cannot be offset by any mitigating circumstance.
2. Change the nature of the crime and the designation of the
offense.
3. Must be alleged in the information, otherwise cannot be
considered as this will violate the right of the accused to be
informed of the nature of the accusation against him. This
is because qualifying circumstances change the crime
committed. This is beside the fact that the Revised Rules of
Court require specification of qualifying circumstances in
the information.
BAR 2000
Rico, a member of the Alpha Rho Fraternity, was killed by Pocholo, a member
of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide before
the Regional Trial Court in Iloilo City. During the trial, the prosecution was able to
prove that the killing was committed by means of poison, in consideration of a
promise or reward and with cruelty. If you were the Judge, with what crime will you
convict Pocholo? Explain.
Suggested answer:
Pocholo should be convicted of the crime of homicide only because the
aggravating circumstances which should qualify the crime to murder were not
alleged in the Information.
The circumstances of using poison, in consideration of a promise or reward,
and cruelty which attended the killing of Rico could only be appreciated as generic
aggravating circumstances since none of them have bee alleged in the Information

89
to qualify te killing to murder. A qualifying circumstance must be alleged in the
Information and proven beyond reasonable doubt during the trial to be appreciated
as such.
4. Must be proved as conclusively as the guilt of the offender
because they are elements of the offense. With the change
in the offense comes the change in the penalty. For
instance, homicide is penalized with reclusion temporal (20
years maximum). With one qualifying circumstance, it
becomes murder penalized with reclusion perpetua (40
years maximum), thus the penalty is doubled. Technically,
it is not the qualifying circumstance that increases the
penalty but the change in the crime committed.
Special or specificaggravating circumstances
They apply to a particular felony and they do not change the character of the
offense charged but guide the court in imposing the proper penalty. (People vs.
Agguihao, G.R. No. 104725, March 10, 1994) The same rule as in generic aggravating
applies to special aggravating circumstances as both do not change the character of
the offense charged.
Examples are:
(1) commiting a crime while under the influence of dangerous drugs (RA 9165)
and
(2) use of loose firearm in certain crimes (RA 10591).
(3) R.A. 7659 added the circumstance of “organized/syndicated group” in
article 62 (1a). This is a special aggravating circumstance because Article 14 was not
correspondingly amended to include the same. The maximum penalty shall be
imposed if the offense was committed by any person belonging to an
organized/syndicated crime group which is defined as a group of 2 or more persons
collaborating, confederating, or mutually helping one another for purposes of gain
in the commission of any crime.
Inherent aggravating circumstance
Which is an element of the felony thus no longer considered against the
offender in the determination of the penalty (Art. 62, no. 2)
The rationale for the requirement to be informed of the existence of the
qualifying circumstance is for accused to prepare properly for his defense to meet
head-on the qualifying circumstance and because such circumstance changes the
nature of the charge against him. (People vs. Abuyen, G.R. No. 77285, September 4,
1992)

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 Where one of the aggravating circumstances has been used as a qualifying
circumstance, the others will be generic. Since treachery has qualified the crime as
murder, evident premeditation should be considered as generic. (People vs. Fabros,
G.R. No. 90603, October 19, 1992)
Taking advantage of official position
The offender is a public officer who availed of the influence or reputation
inherent in his position for the purpose of commtting the crime. The offender must
avail himself of the prestige, or ascendancy which goes with his position as ameans
of securing the execution of the crime. In other words, the position mus tin any way
facilitated its commission. (Peple vs. Yturriaga, 86 Phil. 534).
If the abuse of the office is an integral element of the felony as in falsification
of public document by a public officer who took advantage of his official position,
bribery or malversation, the circumstances is not considered. This means that this
aggravating circumstance is inherent in the crime, since it cannot be committed
except by a public officer. (Campanilla)
The test is: “Did the accused abuse his office in order to commit the crime?” If
yes, then this circumstance is present. (Sanchez vs. Demetriou, infra.) It is considered
present when the offender falsifies a document in connection with the duties of his
office which consist of either making or preparing or otherwise intervening in the
preparation of a document. (Layno vs. People, September 1992). For such to be
considered aggravating, the public official must use the influence, prestige and
ascendancy which his office gives him in realizing his purpose. (People vs. Amion,
G.R. No. 140511, March 1, 2001) (Boado)
Example
1. S, an SB member, collected fines from some stallholders under the pretext that
he would turn-over the money to the treasurer. However, instead of turning
them over to the treasurer, the money was misappropriated for his own use and
benefit. The aggravating circumstance of “taking advantage of his public
position” may be appreciated against him because as a councillor he was in the
position to commit the crime and that if he was not a councillor he could not
have induced the stall-holders to give to him the fines.
2. If the accused, a policeman, effected the abduction of the offended party when
he was wearing his uniform;
3. If the robbery was committed by the Chief of Police and others who represented
themselves as persons in authority;
4. If the accused, a policeman, committed the crime with the aid of a gun he had
been authorized to carry as a police officer, taking advantage of official position
as an aggravating circumstance is present.

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In contempt of or with insult to public authorities
1. Requisites:
a. The public authority is engaged in the discharge of his duties;
b. Offender knows the identity of the public authority;
c. The crime was committed in his presence. It must NOT be committed
against the person in authority for then the crime would be direct
assault and this circumstance will be absorbed being inherent therein.
The term “public authority” covers not only person in authority but also agents
of persons in authority and other public officers.
A municipal mayor, barangay captain, or barangay tanod is a person in
authority or a public authority. Even a public school teacher is now considered a
person in authority under CA 578 amending Article 152. So is the town municipal
health officer, or a nurse, a municipal councillor or an agent of the Bureau of Internal
Revenue.

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.
Age, Sex, Rank, Dwelling
There are 4 circumstances in this paragraph but only one credit should be
given if all are present for they all refer to the circumstance of lack of respect due to
the offended.
There must be proof that offender deliberately intended to offend or insult
the age or sex of the offended. Thus, this circumstance cannot co-exist with passion
or obfuscation because here the offender lost his control or reason.
The aggravating circumstance of sex is not sustained solely by the fact that the
victim was a woman. It must further appear that in the unlawful taking of her life,
there was some specific insult or disrespect shown to her womanhood. (People vs.
Ursal, 121 SCRA 409)
They are considered in crimes against persons, security or honor. It is not
considered in crimes where gender is an element as in parricide, rape, abduction, or
seduction; or in crimes against property such as the special complex crime of robbery
with homicide. (People vs. Paraiso, G.R. No. 127840, November 29, 1999) However,
de los Reyes, October 1992, took dwelling into account reasoning that robbery with
homicide can be committed without necessarily transgressing the sanctity of the
home. (Campanilla)

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“Rank” should be given a plain, ordinary meaning, hence refer to high social position
or standing. It is absorbed in the crime of direct assault since rank is an element
thereof.
It should be clearly demonstrated that the accused deliberately intended to
act with insult or in disregard of the respect due the victim on account of his rank.
That the accused was cognizant of the rank of the deceased police officer or that he
articulated hatred against all policemen in general does not per se suffice to prove
his aggravating circumstance. Or when the raiding police officers were not even in
uniform. (People vs. Verchez, G.R. Nos. 82729-32, June 15, 1994)
1.Killing of judge because he was strict. (People vs. Valeriano)
2. The deceased was a consul and the accused was a mere chancellor, a
subordinate of the deceased.
3. The accused, a clerk, killed the victim who was a ranking official of the Civil
Service Commission.
“Age” refers to both the elderly and the youth. For instance, Jayvee was barely six
years old when ruthlessly stabbed 14 times before his body was submerged in the
pail. It was error not to have considered his age as an aggravating circumstance.
(People vs. Lapan, G.R. No. 88300, July 6, 1992)
1.The accused was 45 years old and the offended party was an octogenarian.
2. The victim in the crime of murer is a child 3 years old.
3. The aggravating circumstance of disrespect due the offended party on
account of his age was correctly appreciated, the victim being 73 years old at the
time he was hacked to death.
4. The aggravating circumstance of disregard of the victim’s age is applicable
only to crime against person and honor.
“Dwelling” (morada) include dependencies, staircase, and enclosures under the
house. It is not necessary that the house be owned by the offended. It includes a
room in a boarding house. Home is that which the law seeks to protect or uphold
against any intruder whether the dweller is a lessee, a boarder or a bed spacer.
A dwelling must be a building or structure exclusively used for rest and
comfort. When the crime was committed in a store which is about fifteen meters
away from the complainant’s house, the aggravating circumstance of dwelling
cannot be considered. Obviously, the store cannot be considered a dwelling or even
a dependency of complainant’s home. (People vs. Joya, G.R. No. 79090, October 1,
1993)
Dwelling is not aggravating when:
a. Offended has given provocation

93
 b. Both the offended and offender live therein
c. Dwelling is inherent in the crime such as trespass to dwelling or robbery
in an inhabited place.
Rationale for this circumstance – the offender’s greater perversity in
deliberately invading the tranquillity of another’s domicile, (People vs. Lapan)
In the crimes of abduction and illegal detention where the offended is taken
from his house, dwelling may be taken as an aggravating circumstance. However,
this circumstance has no effect when the imposable penalty is indivisible. (Article 63)
(People vs. Grefiel, G.R. No. 77228, November 13, 1992)
It is not necessary that the accused should have entered the dwelling of the
victim to commit the offense; it is enough that the victim was attacked inside his own
house, although the assailant may have devised means to perpetrate the assault
from outside the house.
Examples: attack from below the floor of the house, as in fact the target victim
was hit inside his own house (People vs. Dacibar, G.R. No. 111286, February 2000) or
when the victim was abducted while she was in the staircase. (People vs. Magat, G.R.
No. 130026, May 31, 2000).
Dwelling is aggravating where the victim was killed when he opened the door
of his house upon being called by one of the accused. (People vs. Talay.
Dwelling was appreciated although the victim was killed on the staircase of his
house.
Dwelling is also aggravating where the victim was taken from his house
although the offense was not completed in the house as he was killed outside his
abode. (People v. Jardiniano, 103 SCRA 530).
“Sex” For this aggravating circumstance to be considered, there must be a showing
that the accused specially saw to it that his victim would be a woman.
!. Killing of an old woman, a sexagenarian, was attended by disrespect done
her on account of her sex. (People v. Manalang)

That the act be committed with abuse of confidence or obvious ungratefulness.

Abuse, of confidence/obvious ungratefulness
1. Requisites of abuse of confidence/obvious ungratefulness:
a. Offended had trusted the offender
b. Offender abused such trust
c. Such abuse of confidence facilitated commission of the crime
2. The confidence between the parties must be immediate and personal.

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Example
The victim charged her uncle, who just arrived from Saudi Arabia, with rape
while the latter stayed temporarily in her parents’ house. The crime of rape which
the uncle committed against his niece was attended with abuse of confidence and
obvious ungratefulness.
This circumstance is present in the killing by the accused of his sweetheart
whim he invited to a ride after he had determined to kill her and who went with him
not knowing of his plan. (People vs. Marasigan)
Abuse of confidence was considered where the accused robbed and killed the
victim after having fed and lodged them in his house on the tragic night. (People vs.
Pajanustan, 97 SCRA 699)
When the accused stayed for two years with the family of the two young
victims whom he killed, who in their immaturity and innocence never had an inkling
of his homicidal intentions toward them (People vs. Laspardas)
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.
Committed in the palace of the Chief Executive, etc.
Performance of function is not necessary in the circumstances of the offense
being committed in the palace of the Chief of Executive, in a place devoted to
religious worship or in the presence of the Chief Executive. But there must be
performance of public functions as regards the place where public authorities are
engaged in the discharge of their duties.
Offender must have sought any of the 4 places for the commission of the
crime. So if the crime was committed casually or the meeting of the offender and the
offended party was merely casual in any of said places, this aggravating circumstance
cannot be considered.
Example
1. This aggravating circumstance was appreciated in the murder of a person in an
electoral precinct or polling places during election day (People Canoy)

2. That the crime was omitted in a place dedicated to religious worship was
appreciated in a case where the accused shot the victims inside the church or in
a case of unjust vexation where the accused kissed a girl inside a church when a
religious service was being solemnized. (People vs. Anonuevo; People vs. Dumo)

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Nighttime, uninhabited place, band, aid of armed men
If all these aggravating circunstances concur in the commission of the crime,
all will constitute one aggravating circumstance only as a general rule but these can
be considered separately if their elements are distinctly precevied and can subsist
independently, revealing a greater degree of perversity (People vs. Santos)
“Nighttime” is the period of darkness beginning at dusk and ending at dawn
or from sunset to sunrise. The crime must be committed exclusively at nighttime and
not started at daytime. It is not considered in crimes where nighttime is merely
accident or coincidental or has no influence in the perpetration thereof.
By or of itself, nighttime is not an aggravating circumstance. It becomes so only
when it is especially sought by the offender and taken advantage of by him to
facilitate the commission of the crime to insure immunity from capture (People vs.
Boyles)
Nighttime (nocturnity) is absorbed in treachery if it is part of the treacherous
means to insure execution of crime. (People vs. Ong, January 30, 1975)
The aggravating circumstance of nocturnity cannot be considered where the
prosecution established no more than the simple fact that the crime was committed
at night. Nighttime must be deliberately sought in the perpetration of the crime.
(People vs. Ferrer, 255 SCRA)
The crime must be covered by darkness. If the light was bright enough to see
what was going on and to recognize the assailants, nocturnity does not qualify as an
aggravating circumstance under either the subjective or objective tests. (People vs.
Bigcas, G.R. No. 94534, July 2, 1992)

BAR 1994 –Nighttime and band

At about 9:30 in the evening, while Dino and Raffy were walking along Padre
Faura Street, Manila, Johnny hit them with a rock injuring Dino at the back. Raffy
approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the
duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept hitting Dino
and Raffy with rocks. As a result, Dino died, Bobby, Steve, Danny, Nonoy and Johnny
were charged with homicide. Can the court appreciate the aggravating
circumstances of nighttime and band?
Suggested answer
No, nighttime cannot be appreciated as an aggravating circumstance because
there is no indication that the offenders deliberately sought the cover of darkness to
facilitate the commission of the crime or they took advantage of nighttime (People
vs. De los Reyes, 203 SCRA 707).

96
 However, band should be considered as the crime was committed by more
than three armed malefactors; in a recent Supreme Court decision, stones or rocks
are considered deadly weapons.
“Uninhabited place” is determined not by the distance of the nearest house to the
scene of the crime but whether or not in the place of the commission of the offense
there was a reasonable possibility of the victim receiving some help (People vs.
Damaso) or where there are no people or any number of houses within a perimeter
of less than 200 meters is an uninhabited place.
Uninhabited place is aggravating if it is shown that such facilitated the
commission of the crime or the offender took advantage of the isolated either (a)
that he might bettern attain his end, free from molestation, or (b) that he might
better secure himself against detection (People v. Aguinaldo)
Band consists of more than 3 (at least 4) armed malefactors organized with the
intention of carrying out any unlawful design. They should have acted together in
the commission of the crime. (People vs. Robiego, November 1993)
Band is inherent in brigandage. It is similar to abuse of superior strength whose
essence is the utilization of the combined strength of the assailants to overpower
the victim to consummate the offense.
They should have acted together in the commission of the crime. If one has no
direct participation in the commission of the crime, like a principal by inducement
there is no band (Gamara vs. Valero, 51 SCRA 322)
Example
1. Even if there 20 members but only three are armed, there is no band;
2. There is a band whenever more than three malefactors acted together for the
commission of the offense.
The elements of aid of armed men are:
a. Armed men or persons took part in the commission of the crime,
directly or indirectly, and
b. The accused availed himself of their aid or relied upon them when the
crime was committed.
Band vs. aid of armed men:
a. In band there must be at least 4 armed men; in aid of armed men, there
is no required number of malefactors.
b. The band members are all principals for they take part in the
commission of the felony under the same plan and for the same
purpose. The armed men who aided the principal offender are mere
accomplices for they give material and moral aid and encouragement in
the commission of the crime.
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 c. Band absorbs aid of armed men.
Band vs. organized crime:
a. Band requires at least 4 members who are armed; organized crime
requires only 2 members who may or may not be armed.
b. There is no particular crime for which the band is organized; organized
crime group is for the purpose of committing crimes for gain such as
kidnapping for ransom, etc.
Band as a generic aggravating and as qualifying circumstance:
a. Band as a generic circumstance applies to any crime; as a qualifying
circumstance under Article 295 and 296, it applies only to robbery with
physical injuries under Article 294 paragraphs 3, 4 and 5.
b. Whether generic or qualifying, the definition of band is the same.

That the crime be committed on the occasion of a conflagration, shipwreck,

earthquake, epidemic, or other calamity or misfortune.
On the occasion and by means of calamity or misfortune
The “other calamity or misfortune” in paragraph 7 refers to the occasion of
conflagration, shipwreck, earthquake, or epidemic when the offense was
committed. In paragraph 12, the calamity is the means in the commission of the
crime. Aggravating because of the offender instead of lending aid to the victims, adds
to their sufferings.
The development of engine trouble at sea is a misfortune but it does not come
within the meaning of “other calamity or misfortune” which refers to “conflagration,
shipwreck, earthquake, or epidemic” such as chaotic conditions resulting from war
or the liberation of the Philippines during the last world war. (People vs. Arpa)

That the crime be committed with the aid of armed men or person who insure or
afford impunity
The armed men present must take part, either directly or indirectly, in the
commission of the crime by the offender but it must not appear that the offender as
well as those armed men acted under the same plan and for the same purpose as
there will be conspiracy (People vs. Piring)
Example
If the accused secured the services of Moros to kill her husband by promising
them rewards, who then clubbed him to death while the accused held a lighted lamp,
the accused committed parricide with the aid of armed men as this is applicable to
principal by inducement.
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Recidivism, reiteracion, habitual delinquency and quasi-recidivism
There are four (4) forms of habituality: 1. recidivism, 2. reiteracion, 3. habitual
delinquency and 4. quasi-recidivism.
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. The phrase “at the time of his trial for an offense” employed in defining
recidivism incudes everything that is done in the course of the trial, from
arraignment until after sentence is announced by the judge in open court (People v.
Lagarto, G.R. No. 65833, May 6, 1991). However, recidivism can still be appreciated
even if before the trial for the present crime, he was convicted by final judgment of
his previous crime.
In recidivism what is important is the date of trial of the present crime in
relation to date of execution of his previous crime. In recidivism, the accused was
being tried of the present crime when he was convicted of the previous crime by final
judgment.
If both offense were committed on the same day, they shall be considered as
only one, hence they cannot be separately counted in order to constitute recidivism.
Also, judgments of conviction handed down on the same day shall be considered as
only one conviction. The reason for this is because the Code requires that to be
considered as separate convictions, at the time of his trial for one crime, the accused
shall have been previously convicted by final judgment of the other.
Example
X was prosecuted for and convicted of robbery on May 15, 2000. The
judgment became final there being no appeal filed on or before May 31, 2000. During
the pendency of the robbery case, X was also charged with the crime of theft and the
decision convicting him of said was rendered on June 15, 2000. X is considered as a
recidivist because the two crimes of robbery and theft are embraced in the same
title of this Code.
Recidivism exists even if the two offenses are the same, like robbery in the
first conviction and robbery again as the second offense, as thetest is whether the
two offenses are embraced in the same title of the Code.
Recidivism is imprescriptible and hence, it is taken into account no matter
how long a time had lapsed between the first and second convictions (People vs.
Colocar)
In reiteracion, the offender has been previously punished (has served out his
sentence). The first offense was punished with an equal or greater penalty; or he
committed 2 or more crimes previously where he was meted lighter penalty. The
rationale here is that despite the previous punishment, offender did not learn his
lesson.
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 Reiteracion – There is reiteracion when the offender has been previously
punished for an offense to which the law attaches an equal or greater penalty or for
two or more crimes to which it attaches a lighter penalty. (Article 14 of the RPC)
Previous crimes and present crime – If there is only prior offense, it must be
punishable by a penalty equal or greater than that for the present crime. The penalty
for the previous crime of homicide, which has been served out, is reclusion temporal
while that for simple rape is reclusion perpetua. There is no reitaracion because the
penalty for the previous crime of homicide is lesser than that for simple rape. (People
v. Race, Jr., G.R. No. 93143, august 4, 1992).
If there is more than one prior crime, reteiracion is present even if previous
crimes are punishable by a penalty lesser than that for present crime. Thus, there is
reiteracion even if the penalties for grave slander, qualified trespass to dwelling ans
robbery, which have been served out, are lesser than that from the crime of murder.
(People v. Molo, G.R. No. L – 44680, January 11, 1979).
In appreciating reiteracion, what is controlling is the penalty prescribed by law
for the previous and present crimes and not the penalty actually imposed by the
court after trial.
Example 1
X was convicted and has served out his convictions for slight physical injury in
2000 and light threats in 2001, and in 2005 he was charged with homicide. The last
crime was aggravated by reiteracion or habituality because the two previous
offenses were punishable by penalties lighter than that of the last crime of homicide.
Example 2
X was convicted and had served out his conviction for rape and thereafter, was
charged with the crime of homicide. The latter crime is necessarily aggravated by
reiteration or habituality because the previous crime of rape carried with it equal or
greater penalty than the second crime of homicide.

RECIDIVISM compared with REITERACION:

a. Recidivism requires a previous conviction by final judgement;
reiteracion requires service of sentence.
b. In recidivism the offenses are under the same title of the Code; in
reiteracion, it is not so required.
c. In the former, there is no requirement as to penalty; in the latter the
prior crime must have been imposed with a penalty equal to or greater
than the second crime or he must have served 2 or more crimes carrying
lighter penalty.

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 Habitual delinquency is a special aggravating circumstance and unlike the
other kinds of aggravating circumstances which merely increase the penalty for the
offense committed, habitual delinquency has its own penalty which escalates with
the increase in the number of convictions. Thus the penalty is for the felony
committed plus for the habitual delinquency the total of which should not be more
than 30 years.
A person is a habitual delinquent if 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 or he is found guilty of said crimes a third
time or oftener. Falsification is a crime against public interest, robbery, estafa, and
theft are against property and the last two are against persons. An offender may be
a recidivist and a habitual delinquent at the same time if he was convicted for the
third time of the crimes within the same title of the Code.
There must be 3 convictions. The 10-year period is counted from the date of
release for the second crime if he had been released when again convicted. It is the
third conviction that must be within 10 years from the release or second conviction.
Note that the law says “if within a period of 10 years …he is found guilty of any of
said crimes a 3rd time or oftener.”
The law imposes an additional penalty based on the criminal propensity of the
accused apart from that provided by law for the last crime for which he is found
guilty. Habitual delinquency is not, however, a crime in itself; it is only a factor in
determining the total penalty. In fact, the provision on habitual delinquency is found
in Article 62 of the RPC on application of penalties and not in Book Two thereof which
defines felonies. (Almeda v. Villaluz, G.R. No. L – 31665, August 6, 1977; 1947 BAR)
In habitual delinquency, what is important is the date of conviction of the
subsequent or present crime in relation to the date of his last release or conviction.
In habitual deliquency, the accused was convicted of the second crime within 10
years after conviction or release of the first crime; then, he is convicted of the third
crime within 10 years after conviction or release of the second crime; and so on and
so forth.
Serious and less serious physical injuries – According to Justice Regalado, the
term “serious or less serious physical injuries” in Article 62 should be understood to
have been used in the technical term. Thus, frustrated homicide (2014 BAR),
homicide (1991 BAR) or slight physical injuries is not within the contemplation of the
words “serious or less serious physical injuries.”
Robbery – robbery for purposes of habitual delinquency may include robbery
with homicide (1983 and 2001 BAR), or robbery with serious physical injuries. In case
of robbery with serious physical injuries, conviction thereof shall be considered as
one. Special complex crime constituting of two felonies is technically one crime.

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 Stages of Execution – Habitual delinquency is applicable to the crimes
mentioned in the law regardless of the stage of execution. Offender, who commits a
crime, whether in attempted or frustrated, subjectively reveals the same degree of
depravity and perversity as one who commits a consummated crime. To exclude him
from the operation of rule on habitual delinquency would thwart its purposes and
expose society to a constant menace from such delinquent who, when he resolves
to commit a crime, certainly does not propose not to go beyond an attempt or a
frustration, but rather to consummate it.
Accomplice and Accessories – Habitual delinquency applies to accomplice and
accessories of habitual delinquency crimes. The participation of offenders in
committing those crimes repeatedly, whether as principals, accomplices or
accessories, reveals the persistence in them of the inclination to wrong doing, and of
the perversity of character that had led them to commit the previous crimes.
Quasi-recidivism is penalized in addition to habitual delinquency because of
the opening phrase in Article 160: “Besides the provisions of Rule 5 of Article 62.”The
effect is to penalize the convict with the maximum period for the new felony
committed plus the penalty for the original conviction plus the penalty for the
original conviction plus the penalty for the habitual delinquency. If (1) in the service
of the first conviction, he reached the age of 70. Or (2) he shall complete the service
of the original conviction after that age, he shall be pardoned, unless he is a habitual
criminal or his conduct or other circumstances show that he is not worthy of pardon.
Quasi recidivism – any person, who shall commit a felony after having been
convicted by final judgment, before beginning to serve such sentence, or while
serving the same, shall be considered as a quasi-recidvist. (Article 160 RPC; 1965
BAR). Quasi-recidivist is an extraordinary aggravating circumstance and cannot be
offset by an ordinary mitigating circumstance (People v. Macariola, G.R. No. L –
40757, January 24, 1983) of voluntary surrender or confession . (BAR 1983).
Previous crime and present crime – Quasi-recidivism will be appreciated
regardless of whether the previous crime, for which an accused is serving sentence
at the time of the commission of the crime charged, falls under the Revised Penal
Code or under special penal laws. But the present crime must be a felony punished
under the Revised Penal Code or an offense punishable under special law, which
adopts the technical nomenclature of the penalties of the Revised Penal Code.
On who commit illegal possession of loose firearm while serving sentence for
theft is a quasi-recidivist. Although Court of Appeals Justice Luis Reyes and Justice
Regalado opined that the second crime must be a felony to appreciate quasi-
recidivism because Article 160 speaks of “felony,” the Supreme Court in People v.
Salazar, G.R. No. 98060, January 27, 1997, appreciated quasi-recidivism against the
accused who committed a malum prohibitum under R.A. No. 6425 (the old
dangerous drugs law) because this law adopts the technical nomenclature of the

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penalty under the RPC. Since RA No. 10591, which punishes illegal posseesion of
loose firearm, adopts the technical nomenclature of penalties of the Revised Penal
Code, Article 160 of the Code on quasi- recidivism shall be appreciated in the
imposition of penalty under RA No. 10591. (2012 BAR) (Campanilla).
Before serving sentence – One who committed a crime outside of prison
before he begins to serve his sentence for homicide is a quasi-recidivist. (1963 and
1983 BAR). If the accused is placed on probation, the conviction shall become final
but the service of sentence shall be suspended. One who committed a crime while
on probation is a quasi- recidivist because the crime was committed before serving
her sentence for the previous crime for which she is placed under probation. (People
v. Salazar, G.R. No. 98060, January 27, 1997) (Campanilla).
The Salazar case applies to one who committed a crime while under parole or
conditional pardon. In parole or conditional pardon, the service of unexpired portion
of sentence is suspended. A parole or pardonee is a convict by final judgment.
Commission of crime while the service of unexpired sentence is suspended by reason
of parole or conditional pardon falls within the contemplation of the Article 160
because the crime is deemded committed “before the service of sentence.” (People
v. Balictar, G.R. No. L -29994, July 20, 1979; 1991 BAR). (Campanilla)
If the pardon is absolute, the criminal liability is extinguished, and thus, the
penalty is considered as served out. One who committed a crime after the grant of
absolute pardon is not a quasi-recidivist. But reiteracion may be appreciated.
While serving sentence– There is quasi-recidivist: (1) where the convicted
prisoner killed the victim inside the New Bilibid Prison (People v. Alvis, G.R. No. L –
39049, June 24, 1983) or (2) where the convicted prisoner escaped from a penal
colony, and then committed robbery with homicide. (People v. Retania, G.R. No. L –
34841, January 22, 1980).

BAR 2001 - Recidivism

Juan de Castro already had three (3) previous convictions by final judgment
for theft when he was found guilty of Robbery with Homicide. In the last case, the
trial Judge considered against the accused both recidivism and habitual delinquency.
The accused appealed and contended that in hias last conviction, the trial court
cannot consider against him a finding of recidivism and, again, of habitual
delinquency. Is the appeal meritorious? Explain.
Suggested answer
No, the appeal is not meritorious. Recidivism and habitual delinquency are
correctly considered in this case because the basis of recidivism is different from that
of habitual delinquency.

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 Juan is a recidivist because he had been previously convicted by final judgment
for theft and again found guilty for Robbery with Homicide, which are both crimes
against property, embraced under the same Title (Title Ten, Book Two) of the Revised
Penal Code. The implication is that he is specializing in the commission of crimes
against property, hence aggravating in the conviction for Robbery with Homicide.
Habitual delinquency, which brings about an additional penalty when an
offender is convicted a third time or more for specified crimes, is correctly
considered because Juan had already three (3) previous convictions by final
judgment for theft and again convicted for Robbery with Homicide. And the crimes
specified as basis for habitual delinquency includes, inter alia, theft and robbery.

RECIDIVISM, QUASI-RECIDIVISM, REITERACION and HABITUAL DELINQUENCY

COMPARED.
CRIME COMMITTED –
In recidivism, the previous crime and the present crime are embraced in the
same title of the RPC.
In quasi-recidivism, the nature of the previous crime and present crime is not
material, provided the present crime is a felony, which is defined and penalized by
the RPC.
In reiteracion, the penalty for the previous crime is equal or greater than that
for the present crime or the penalty for the two previous crimes is lighter than that
for the present crime.
In habitual delinquency, the previous, subsequent and present crimes must be
serious, less serious physical injuries, theft, robbery, estafa or falsification of
document.
QUASI RECIDIVISM and REITERACION compared
In quasi-recidivism and reiteracion, what is important is the date of
commission of the present crime.
In quasi-recidivism, the accused committed the present crime before
beginning to serve or while serving his sentence for the previous crime.
In reiteration, the accused committed the present crime after serving his
sentence for previous crime/s.
In recidivism and quasi-recidivism, there must be at least two crimes.
In reiteracion, there must be at least two crimes; but if the prenalty for the
previous crimes is lighter than that for the present crime, there must be at least three
crimes.

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 In habitual delinquency, there must be at least three crimes.
Effects in relation to the penalty
Recidivism and reiteracion are ordinary aggravating circumstances, the
presence of any of which will require the application of the penalty for the present
crime in its maximum period unless it is offset by a mitigating circumstance.
Quasi-recidvism is a special aggravating circumstance, the presence of which
will require the application of the penalty for the present crime in its maximum
period regardless of the presence of a mitigating circumstance.
Habitual delinquency is an extraordinary or special aggravating circumstance,
the presence of which will require the imposition of penalty in addition to the
principal penalty for the present crime. This is not subject to the offset rule.
Recidivism and habitual delinquency:
a. In recidivism, a 2nd conviction is enough; in habitual delinquency, a 3rd
conviction is necessary.
b. Recidivism requires that the crimes involved be both under the same
Title of Code; in habitual delinquency, the crimes are specific which may
or may not be within the same Title.
c. Recidivism does not prescribe because there is no time limit between
the 1st and 2nd convictions; habitual delinquency prescribes if the 10-
year period is exceeded.
d. Recidivism is a generic aggravating circumstance which can be offset by
an ordinary mitigating circumstance; habitual delinquency is a special
aggravating circumstance which must be considered by the court in the
imposition of penalty. It cannot be offset.

That the crime be committed in consideration of a price, reward, or promise.

Price, promise or reward
Price, promise or reward affects equally the offeror and the acceptor. The
offeror is a principal by inducement, and the acceptor, the principal by direct
participation.
The inducement is the primary consideration in the commission of the crime
for this circumstance to be aggravating.
If the money was given, without any previous promise, after the commission
of the crime as an expression of symphaty, this circumstance cannot be present (US
v. Flores)

105
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.
This is the only aggravating circumstance that may constitute a crime in itself.
If a building is set on fire to burn it, the crime committed is arson. If as a result
of the burning of the building, somebody dies, the crime committed is arsn with
homicide a special complex crime.
If the building is burned as a means to kill the occupant, the crime will be
murder, not murder with arson. (People v. Villarega)
When the victim was first killed and the accused set fire to his house, hie is
guilty of two separate crimes of murder and arson (People vs. Bersabal) because the
arson was committed to conceal the murder.
If a hand grenade was thrown into a house and as a result of the explosion,
the house was damaged but no one was injured, the crime committed is the crime
involving destruction (People vs. Comporedondo)
If the explosion was used as amenas tomkill the occupant, who died as a
consequence, the crime will be murder.
Evident premeditation
1. The elements of evident premeditation are:

a. The TIME when the offender determined to commit the crime;

b. An ACT manifestly indicating that he has clung to his determination; and
c. Sufficient LAPSE of time between such determination and execution to
allow him to reflect upon the consequences of his act.

2. It must be shown when the plan to commit the crime was hatched or the
length of time that elapsed before it was carried out for the essence of
evident premeditation is stubborn adherence to a decision to commit a
felony. Otherwise stated, the execution of the plan must be preceded by
cool thought and reflection of the resolution to carry out the criminal
intent during the space of time sufficient to arrive at a calm judgment.

3. Evident premeditation is not inherent in robbery with homicide. In such an

offense, the evident premeditation must relate to the killing and not to the
robbery. (People vs. Manansala, G.R. No. 88752, July 3, 1992).

4. Evident premeditation is inherent in crimes against property especially if

the robbery is committed by several persons since there must be an
agreement and the persons have to meditate and reflect on the manner of

106
 carrying out the crime and they have to act immediately in order to
succeed. (People vs. Carillo).

5. It is also inherent in the crimes of theft, estafa and analogous offenses, like
arson, when the accused would execute the preconceived act only after he
thought out the method by which he intended to accomplish it.

6. Evident premeditation is necessarily absorbed in the aggravating

circumstance of price, reward or promise but only insofar as the inducer is
concerned since he obviously reflected thereon in planning the crime (US
vs. Manalinde), but not the person induced since one can be a principal by
direct participation without the benefit of due reflection (US vs. Rabor)
(Boado)
Example
There is evident premeditation in the killing of a person different from that
intended (People vs. Guillen) but such may be considered if it was determined by the
accused not only to kill the intended party but any person who may help him put a
resistance (People vs. Timbol) because it is not necessary for evident premeditation
to exist that the plan be to kill a particular. So, when the accused threatened to kill
the first two persons he would meet on the street the deceased being included
within the terms “persons” evident premeditation is present (US vs. Zalsos).
When the accused for sometime before the incident had been waiting for the
victim to appear and that as soon as the latter appeared, the former met him and
held him by the neck, there is sufficient evidence of premeditation.
Craft, fraud, disguise
These are intellectual means in the commission of a crime and are separate
aggravating circumstances.
1. Craft is cunning or intellectual trickery or chicanery resorted to by the
accused to carry out his evil design.

Example

(1) The offender assumed position of authority to gain entry in a house; feigning
friendship to lure victim to an uninhabited place.

(2) Deigning friendship, accused was able to lure the victim to the uninhabited
place where the crime was thereafter committed.

107
 (3) Craft was used by the accused in the commission of the offense of rape
whenhe accused resorted to the use of innocent looking chocolate candies
which did not arouse the suspicion of the complainant that thwy contained
deleterious drug, the purpose of the accused in giving them being to weaken
her resistance so that she would not be able to repulse physically snd mentally
his sexual assault (People vs. Guy)

(4) In the crime of robbery when one of the accused shouted from the outside
that they wanted to buy cigarettes which induced the offended party to open
the kitchen for them and then one of them said they wanted to drink some
water which also paved the way for their intrusion into the house of the
offended party (People vs. Napili)

Fraud constitutes deceit manifested by insidious words or machinations

Example

1. In the case of the stepfather of the offended party, who taking advantage
of the absence of her mother, took the young girl away and told her she was
to be taken to the house of her godmother but instead she was taken to
another house where she was raped (People vs. De Leon)

2. In the case of A simulates the handwriting of B, who is a friend of C, inviting

the latter, without the knowledge of B, by means of a note written, in such
simulated hand, to meet B at a designated place, in order to give A who lies
in wait at the place appointed, the oppoetunity to kill C.

Disguise is resorted to conceal the identity. If in spite of the disguise, the offender
was recognized, such cannot be aggravating.

Example
1. The use of an assumed name in the publication of libel.
2. Covering the face with a handkerchief.
3. Illegally wearing constabulary uniform.
4. Where the accused committed the crime of robbery with rape by
pretending to be PC doldiers

Not aggravating if it did not facilitate the commission of the crime or it is not taken
advantage of by the offender in the course of the assault.

If resorted to an insuring the commission of the crime against persons without risk
to offender, absorbed by treachery.
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That advantage be taken of superior strenght, or means be employed to weaken
the defense.
Abuse of superior strength
Abuse of superior strength is intentionally employing excessive force out of
proportion to the means of defense available to the offended party. There must be
a notorious inequality of forces between the victim and the aggressor.
The aggravating circumstance of abuse of superior strength depends on the
age, size and strength of the parties. It is considered whenever there is a notorious
inequality of forces between the victim and the aggressor, assessing a superiority of
strength notoriously and advantageously for the aggressor which is selected or taken
advantage of by him in the commission of the crime (People vs. Carpio, 191 SCRA
108)
Superiority in number does not necessarily mean that the offenders abused
their superior strength or that means are employed to weaken the defense. It must
be proved that the attackers cooperated in such a way as to secure advantage from
superiority of strength.
This is not taken into account if the assault was characterized with passion or
obfuscation or made during a quarrel. It is inherent in parricide as generally, the
husband is physically stronger than the wife; and in rape it is absorbed in the element
of force, hence already taken into account in fixing the penalty.
Example
1. An attack by a man with a deadly weapon upon an armed and defenseless
woman constitutes abuse of superior strength which his sex and weapon afforded
him. (People vs. Espina. G.R. No. 123102, February 29, 2000)
2. Where the aggressors, who were all armed, first hit the legs of their
unarmed victim, causing the latter to fall kneeling; then stabbed him above the knee;
and, having deprived him of his means to stand or run, took turns in inflicting mortal
wounds on him. (People vs. Apelado, G.R. No. 132137, October 1, 1999)
3. Where the accused took the infant from her mother immediately after
her birth, naked, placenta and all, and subsequently burned the child alive, abuse of
superior strength was held present.

Means be employed to weaken the defense

Example
1. Intoxicating a victim with intention to kill himis characterized by means
employed to weaken the defense.

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 2. Casting sand or dirt upon the eyes of the offended party and then
wounding him.
3. Throwing a cloak over the head of his opponent and while in this situation
he wound or kills him.

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.
Treachery is applicable in crimes against persons only. It is qualifying in murder
or in serious physical injuries. In parricide, treachery is a generic aggravating
circumstance as well as in homicide, if it is not alleged in the information.
When it is shown that the attack was not made with alevosia the number of
the assailants and the simultaneously of the attack upon a defenceless person may
constitute abuse of force. This is manifest where the victim was unarmed and was
trying to flee while the 2 felons were armed and used their weapons in perpetrating
the crime. (People vs. Alacar. G.R. Nos. 64725-26, July 20, 1992)
Where 3 persons assaulted the victim inside his house and the appellant
stabbed the deceased while the latter was firmly held by the 2 other companions,
treachery cannot be appreciated because it is included in abuse of superior strength.
Treachery may be appreciated even when the victim was warned of the
danger to his person, for what is decisive is that the execution of the attack made it
impossible for the victim to defend himself or retaliate. (People vs. Landicho, G.R.
No. 116600, July 3, 1996)
It is a special aggravating circumstance because it is present in crimes against
persons only. It is qualifying in murder. In serious physical injuries, it is a special
aggravating circumstance which increases the penalty.
When the attack is frontal, generally, there is no treachery. But there is
treachery when the attack although frontal is sudden and made in such a manner
that tends directly and especially to insure its execution for free from danger and
without risk to the offender.
Whereas the essence of evident premeditation is cool thought and reflection,
the essence of treachery is the swiftness and the unexpectedness of the attack upon
the unsuspecting and unarmed victim, who does not give the slightest provocation.
(People vs. Rebamontan, G.R. No. 125318, April 13, 1999)

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 Generally, it must be present at the inception of the attack. If the attack was
without treachery at its inception, there must be a break or interruption in the attack
for it to be considered if the attack was consummated with treachery. After the
commencement of such an attack, and before its termination, an accused person
may have employed means or methods which were of a treacherous character, and
yet such means or methods would not constitute the circumstance of alevosia. One
continuous attack cannot be broken up into 2 or more parts.
Treachery must be proved as convincingly as the crime itself because it cannot
be presumed. It cannot be inferred just from the location of the wound because the
evidence should show the manner of the attack, how it was commenced and how
the victim reacted thereto.
If the victim is a young child, there is treachery even if the manner of the attack
is not shown. There is a blatant in equality of strength between the offender and the
victim, but abuse of superior strength cannot be appreciated as it is necessarily
absorbed in treachery.
Treachery absorbs both nighttime and taking advantage of superior strength
in the light of the circumstances of the case at bar. Considering that treachery
qualifies the killing of the 4 victims, the accused is guilty of 4 counts of murder.
(People vs Bechayda, G.R. No. 72001, August 7, 1992)
Treachery may be appreciated in aberration ictus. When the offender fired at
his adversary but missed, the victims were helpless to defend themselves. Their
deaths were murders not simply homicide since the acts were qualified by treachery.
(People vs. Flora, G.R. No. 125909, June 23, 2000)
Examples
1. The killing of a child is murder qualified by treachery, even if the manner of
attack was not shown (People vs. Valerio Jr)
2. If the deceased was killed while bound in such a way as to be deprived of any
opportunity to repel the attack or escape with any possibility of success.
3. If the deceased was killed while asleep.
4. If the deceased was shot while answering the call of nature.
5. If the hands of the deceased were tied when attacked.
6. Where the victim had just awakened when attacked, because he might still be
dazed and unprepared for the attack.

BAR 1997 – Treachery and unlawful entry

The accused and the victim occupied adjacent apartments, each being a
separate dwelling unit of one big house. The accused suspected his wife of having an
illicit relation with the victim. One afternoon, he saw the victim and his wife together
on board a vehicle. In the evening of that day, the accused went to bed early and
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tried to sleep, but being so annoyed over the suspected relation between his wife
and the victim, he could not sleep. Later in the night, he resolved to kill the victim.
He rose from bed and took hold of a knife. He entered the apartment of the victim
through an unlocked window. Inside, he saw the victim soundly asleep. He
thereupon stabbed the victim, inflicting several wounds, which caused his death
within a few hours. Would you say that the killing was attended by the qualifying or
aggravating circumstances of evident premeditation, treachery, nighttime and
unlawful entry?
Suggested answer
1. Evident premeditation cannot be considered against the accused because he
resolved to kill the victim “later in the night” and there was no sufficient lapse of
time between the determination and execution, to allow his conscience to
overcome the resolution of his will.
2. TREACHERY may be present because the accused the victim while the latter was
sound asleep. Accordingly, he employed means and methods which directly and
specially insured the execution of the act without risk to himself arsing from the
defense which the victim might have made.
3. NIGHTTIME cannot be appreciated because there is no showing that the accused
deliberately sought or availed of nighttime to insure the success of his act. The
intention to commit the crime was conceived shortly before its commission.
Moreover, nighttime is absorbed in treachery.
4. UNLAWFUL ENTRY may be appreciated as an aggravating circumstance,
inasmuch as the accused entered the room of the victim through the window,
which is not the proper place for entrance into the house.

Ignominy and cruelty

Ignominy pertains to the moral order which adds disgrace and obloquy to the
material injury caused by the crime. It produces more suffering on account of its
humiliating effects. It was not appreciated in a case where the sexual assault was not
shown as having been done by the accused to put the victim to shame before killing
him. (People vs. Diaz, G.R. No. 134311, October 13, 1999)
Ignominy relates to moral suffering whereas cruelty to physical suffering.
There is cruelty when the culprit delights in making his victim suffer slowly and
gradually, causing unnecessary moral and physical pain in the consummation of the
criminal act which he intended to commit. The number of wounds alone does not
imply cruelty as it is essential to show that these were inflicted unnecessarily while
the victim was still alive to prolong his physical suffering.
The killing was done with cruelty, by deliberately or inhumanly augmenting
the suffering of the victim or outraging or scoffing at his person or corpse. No greater

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outrage, insult or abuse can a person commit upon a corpse than to sever its head.
The head represents the dignity of the person and any violence directed towards it
cannot be interpreted in any other manner than an outrage to his corpse. (People
vs. Binondo, G.R. No. 97227, October 20, 1992)
As the victim rolled unconscious after she was ravished, appellant still hacked
her, almost splitting her face in two. Such bestiality is a form of cruelty and perversity
which aggravated the crime, it being unnecessary to the commission thereof, and
manifestly an outrage on the victim’s person. (People vs. Nescio, G.R. No. 102008,
December 28, 1994)
Example 1
The accused who at the point of guns, made actress M to undress completely
and to dance before them completely naked before taking turns in raping her,
committed the crime of rape aggravated by ignominy. (People v. Jose, 37 SCRA 450)
Example 2
In raping Y, X forced her to be in the same position as dogs do, or the “dog-
style” position in doing a sexual act, ignominy aggravated the crime of rape. (People
v. Saylan, 130 SCRA 159)
Example 3
There is also ignominy when the accused grabbed the woman victim, by the
hair while defecating, then inserted his gun in the mouth of the victim, fired it, killing
her because the manner in which the accused liquidated the victim added shame,
disgrace or obloquy to the material injury caused by the crime.
Example 4
There is ignominy where one of the robbers raped the victim in the presence
of he rhusband, who was hog-tied and was beside her on the floor. Disgrace and
obloquy was added to the material effects of the crime, making the outrage more
humiliating.

BAR 1994 – Cruelty and relationship

Ben, a widower, driven by bestial desire, poked a gun on his daughter, Zeny,
forcibly undressed her and tied her legs to the bed. He also burned her face with a
lighted cigarette. Like a madman, he laughed while raping her. What aggravating
circumstances are present in this case?
Suggested answer
(a) Cruelty, for burning the victim’s face with a lighted cigarette, thereby
deliberately augmenting the victim’s suffering by acts clearly unnecessary to

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 the rape, while the offender delighted and enjoyed seeing the victim suffer in
pain (People vs. Lucas, 181 SCRA 316)
(b) Relationship, because the offended party is a descendant (daughter) of the
offender.

That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance is effected by a way not intended for
the purpose.
Unlawful entry
There is unlawful entry when an entrance is effected by a way not intended
for that purpose. It must be for entry not exit. In the other words, unlawful entry to
be aggravating mut be for the purpose of entrance and not for the purpose of escape.
But breaking a door to enter is not unlawful entry since this is covered by paragraph
19 of Article 14 which states that “as a means to the commission of the crime a wall,
roof, floor, door, or window be broken” showing that unlawful entry excludes ingress
by means of such breaking.
The unlawful entrance must be made for the purpose of committing a crime
like rape or murder.
It is inherent in the crime of trespass to dwelling and in robbery with force
upon thing.

That as a means to the commission of a crime a wall, roof, floor, door, or window
be broken.
This means is for the purpose of committing a crime. It is inherent in robbery
with force upon things.
It is not to be appreciated where the accused did not break the door of the
victims as a means to commit robbery with homicide where the accused after
breaking the rope which was used to close the door could have already entered the
house.

That the crime be committed with the aid of persons under fifteen years of age, or
by means of motor vehicle, airships, or other similar means.
These are distinct circumstances: with the aid of minor showing greater
perversity of the offender in educating a minor on how to commit a crime and the
use by modern criminals of faster means of conveyance to commit the crime.
Considered when the motor vehicle was purposely used to facilitate the
commission of the offense or when it is shown that without it the offense could not

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have been committed or when it was intentionally sought to insure the success of
the act. What is aggravating is the use of motor vehicle to commit the crime not to
escape.
“Other similar means” should refer to other means of transportation that are
similar to motor vehicles or airships, e.g., motor cycles under the principle of
“ejusdem generis”. Pedicab is not included. It is not aggravating if the vehicle was not
used directly or indirectly to facilitate the criminal act. (People vs. Amion, supra)
The use by criminals of motorized means of conveyance to commit the crime
is penalized because they pose difficulty to the authorities in apprehending them.
Example
1. The circumstance of motor vehicles is present in the case of taxicab used in
committing robbery (People vs. Lacsamana)
2. The victim was killed in a taxicab hired and used by the accused.
3. Even if the victim were not compelled to ride in a jeep but were merely lured
and as a matter of fact, one of them even drove the vehicle to the place where
they were killed.
Not aggravating if the vehicle is used as a means for the escape of the offender
1. In the crime of estafa wherein the jeep was used in carting away the
property, it was held that the circumstance was not present because the estafa was
not committed by means of said vehicle.
2. It is not aggravating when the accused used a car, and part of the way,
a hired jeep in going and coming from the place where the crime is
committed.
3. Not aggravating in facilitating in the escape of the accused.

That the wrong done in the commission of the crime be delilberately augmented
by causing other wrong not necessary for its commission.
For cruelty to be considered as aggravating circumstance, it is essential that
the wrong done in the commission of the crime be deliberately augmented and that
such wrong is unnecessary for the accomplishment of the purpose of the offender.
There is cruelty when the offender enjoys and delights in making his victim
suffer slowly and gradually, causing unnecessary moral and physical pain in the
consummation of the criminal act which he intended to commit (People vs. Dayug)
Cruelty refers to physical suffering of the victim purposely intended by the
offender. Hence, the wrong done must be performed while the victim is still alive.

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Examples
1. There is cruelty if the mouth and other parts of the body of an infant, 11
months old, were burned.
2. Extracting the left eye of the victim from its socket with a pointed end of
a cane and stuffing moth with mud.
3. The act of stepping on the head of the offended party and submerging
him in water which are obviously unnecessary to the commission of grave coercion.
4. Where the accused strangulated the victim with a rope, set him on fire,
after having struck him twice on the head.

ALTERNATIVE CIRCUMSTANCES
Article 15 – Their concepts, -- 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
degree of the offender.
The intoxication of the offender shall be taken into consideration as a
mitigating circumstance when the offenr has committed a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to commit said
felony; but when the intoxication is habitual or intentional, it shall be considered
as an aggravating circumstance.
Alternative circumstances are those which must be taken into consideration
as aggravating or mitigating according to the nature and effects of the crime and
other conditions attending its commission. They are considered only when they
influenced the commission of the crime.
Alternative circumstances are not aggravating per se for they are also
mitigating. As aggravating circumstances, these are considered for purposes of
imposing civil liability such as moral damages.
The three (3) alternative circumstances are (1) relationship, (2) intoxication,
and (3) degree of instruction and education of the offender.

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RELATIONSHIP
Relationship is considered when the offended party is the spouses, ascendant,
descendant, legitimate, natural, or adopted Brother or Sister or relative by Affinity
of the offender. Stepparents and stepchildren are included by analogy, but not
stepbrothers/stepsisters because the law specified only legitimate, natural, or
adopted. But if the relationship is an element of the crime as in parricide, it is neither
aggravating nor mitigating.
Relationship is mitigating in crimes against property by analogy to the
provisions of Article 332 which exempts the offender for theft, estafa and malicious
mischief. In serious physical injuries committed against the child due to the parent’s
excessive chastisement, relationship is not aggravating. (Art. 263).
As a rule, relationship is mitigating if the offended party is of a lower degree
than that of the offender. The exception is the crime of serious physical injuries if
committed against the offender’s child provided the same were done not due to
excessive chastisement except if the offender is the parent.
In crimes against chastity such as acts of lasciviousness, relationship is
aggravating (People vs. Marino, G.R. No. 141183, January 18, 2001.) whether there
is of a higher or lower degree than that of the offended party. It is due to the nature
of the crime. (People vs. Porras)
Neither aggravating nor mitigating if relationship is an element of the crime
such as parricide and qualified rape. If what was charged was murder or homicide
instead of parricide, relationship becomes generic only because the accused cannot
be convicted of what was not charged against him.

INTOXICATION
Intoxication should affect the offender’s mental faculties. Mere drinking of
liquor prior to the commission of the crime does not necessarily produce a state of
intoxication.
To be mitigating
A person pleading intoxication as a mitigating circumstance must show that:
(1) he has taken a quantity of alcohol beverage prior to the commission of the crime,
sufficient to produce the effect of obfuscating reason; and (2) he is not a habitual
drinker and did not take the alcohol drink with the intention to reinforce his resolve
to commit the crime. (People vs. Pinca, G.R. No. 129256, November 17, 1999).
Intoxication to be mitigating must be proved to the satisfaction of the court
and in the absence of proof to the contrary it is presumed to be not habitual but
accidental. Mere drinking of liquor prior to the commission of the crime does not
necessarily produce a state of intoxication.
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To be aggravating
To be aggravating, there must be evidence of excessive and habitual use or
specific purpose to commit the crime by getting drunk, otherwise, it will be
mitigating.

DEGREE OF INSTRUCTION AND EDUCATION OF THE OFFENDER

Whether or not degree of education and instruction would be considered as
aggravating or mitigating depends upon the gravity of the crime committed. For
instance, parricide is as much reprehensible to the educated as to the illiterate.
It is not illiteracy alone but the lack of intelligence or breeding/instruction that
is considered. Even if one is not schooled but comes from a family of professionals,
he must have had some degree of instructions hence he could easily realize the
significance of his act. His lack of schooling then would not be mitigating.
Put differently, high education could be aggravating but is never mitigating;
low education could be mitigating but will never be aggravating. The fact that a
person is a professional, for instance, cannot mitigate a crime he commits.
Conversely, the fact that a person is not schooled cannot aggravate his crime.
Lack of instruction or a low degree of intelligence is, generally mitigating in
almost all crimes. But in People vs. Mutya, the Supreme Court held that such is not
mitigating in murder because to kill is forbidden by natural law which every natural
being is endowed to k now and feel.
It is not mitigating in crimes against property like robbery or theft. No one,
however, unschooled he may be, is so ignorant as not to know that theft or robbery
or assault upon a person in authprity is inherently wrong and violation of the law
People vs. Magistrado)
It is not mitigating in crimes against chastity like rape nor in the crime of arson.

BAR 2002 Alternative circumstance: intoxication

A was invited to a drinking spree by friends. After having had a drink too many,
A and B had a heated argument, during which A stabbed B. As a result, B suffered
serious physical injuries. May the intoxication of A be considered aggravating or
mitigating?
Suggested answer
The intoxication of A may be prima facie considered mitigating since it was
merely incidental to the commission of the crime. It may not be considered
aggravating as there is no clear indication from the facts of the case that it was

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habitual or intentional on the part of A. Aggravating circumstances are not to be
presumed; they should be proved beyond reasonable doubt.

Article 16 – Who are criminally liable. – The following are criminally liable for grave
and less grave felony:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies.
1. Principals.
2. Accomplices.
For grave and less grave felonies; principals, accomplices and accessories.
For light felonies; principals and accomplices. Accessories are not liable for
light felonies are those punished with arresto menor or fine not exceeding
Php200.00.
Why are accessories not liable for light felonies?
Because the law does not deal with trifles. (de minimis non curat lex). Also 2
degrees lower than arresto menor is not possible.
To whom do ‘persons” refer? To natural persons only; juridical persons cannot
commit a crime which requires a wilful purpose, voluntariness or malicious intent.

Article 17 – Principals. – The following are considered principals.

1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished.
Principals by direct participation are those who materially execute the crime.
They must appear at the crime scene and perform acts necessary in the commission
of the offense to be liable.
They are those who, participating in the criminal design, proceed to carry out
their plan and personally take part in its execution by acts which directly tend to the
same end.
In conspiracy by prior agreement, the principal by direct participation who
does not appear at the crime scene is not liable because:

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 1.His non-appearance is deemed desistance which is favoured and
encouraged.

2. Conspiracy is generally not a crime unless the law specially provides a

penalty therefor. (Article 8) Thus, by merely conspiring the would be
participator has not yet committed any crime unless he would appear at the
site of the crime and perform any act directly or indirectly in the execution of
the plan;

3. There is no basis for criminal liability because there is no criminal

participation.
The inducer may be a principal, an accomplice or without any liability at all. He
is a principal by inducement if his inducement should be obeyed. His utterances must
be of such a nature and made in such a manner as to become the determining cause
of the crime. Where the words uttered did not make any dominance or influence on
the offenders or is no longer necessary as the offenders were already determined to
commit the offending acts, the utterance will not make the utterer an inducer.
(People vs. Parungao, G.R. No. 125812, November 28, 1996).
The inducer is generally liable as an accomplice because the law favors a lesser
penalty.
Principals by inducement (or mastermind) are liable even if they did not
appear in the crime scene because it would not have been committed without the
inducement and because they induce others to commit the crime so they do not
have to appear or do the “dirty work.”
Article 17 considers as principals those who “directly force or induce others”
to commit an offense. One is induced to commit a crime either by a command or for
a consideration, or by any other similar act which constitutes the real and moving
cause of the crime and which was done for the purpose of inducing such criminal act
and which was sufficient for that purpose. (People vs. Dumancas, G.R. No. 133527-
28, December 13, 1999.
To be considered as a principal by indispensable cooperation, there must be
direct participation in the criminal design by another act without which the crime
could not have been committed. The act must be of such importance that the crime
would not have been committed without him or that he participated therein.
Otherwise, he cannot be considered a principal by indispensable cooperation.
(People vs. Fronda, G.R. No. 102361, May 14, 1993).
A principal by indispensable cooperation may be a co-conspirator under the
doctrine of implied conspiracy. The voluntary and indispensable cooperation of the
offender is a concurrence of the criminal act to be executed. Consequently, he is a
co-conspirator by indispensable cooperation, although the common design or

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purpose was never bottled up by previous undertaking. (Subayco vs. Sandiganbayan,
G.R. No. 117267-117310, August 22, 1996).
The participation of the co-operator must be indispensable to the commission
of the crime. If his cooperation is dispensable, that is, with or without his
participation, the offense will be committed, the liability is that of an accomplish.
Thus, in Sotto (G.R. No. 106083-84, March 29, 1996), the pump boat owner who
helped the offenders by pretending that his pump boat needed towing by the passing
boat of the victims was held to be merely an accomplice. Here, the offenders
transferred to the boat of the victims and later robbed and killed them. The offenders
could have asked the help of other pump boat owners, hence, the accused’s
cooperation was not indispensable.
Examples
1. If an employee of a bank in connivance with a depositor placed in his
initials on the check of the depositor drawn against the bank knowing that there
were no sufficient funds, the employee is a principal by indispensable cooperation.
The act of initialling the check is indispensable to the act of defraudation of the
depositor as without it the check would not be cashed. (People vs. Lim Buanco).
2. By holding the deceased from behind in such a manner that the latter
could not move and while thus being held by the co-accused, the other accused
stabbed the deceased, the co-accused, performed an act without which the crime
would not have been accomplished which makes him a principal by indispendable
cooperation (People vs. Celinio)
3. The accused is the only one who knows the combination of the vault and
without his parcipation the crime could not have been committed.
Example:
W, X, Y and Z conspired to kill V. In going to the house of V, W drove the car
where he, X, Y and Z boarded and upon, reaching the house, W and X remained
posted themselves in the front yard as look-outs, while Y went up the house with Z
who was the one who actually shot V. W, X, Y and Z are all considered as principals
by direct participation although it was only Z who actually killed because there was
conspiracy and the act of one is the act of all.

Article 18 – Accomplices. – Accomplices are the persons who, not being included in
Article 17, cooperate in the execution of the offense by previous or simultaneous
acts.
Accomplices are those who are not principals but cooperate in the execution
of the offense by previous or simultaneous acts. They are also called accessories
before the fact. (BAR 2013)

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 Conspiracy is not a requirement for he is not a principal but supplies material
or moral aid to the principal in an efficacious way. Accomplices participate in the
execution of the offense by simultaneous acts, which bore a relation to the acts done
by the principal sans a conspiracy.
He knows of the criminal design of the principal and he cooperates knowingly
and intentionally in a manner which is not indispensable to the commission of the
crime.
To hold a person liable as an accomplice, three elements must concur:
1. Community of design, which means that the accomplice knows of
and concur with, the criminal design of the principal by direct
participation;

2. The performance by the accomplice of previous or simultaneous

acts that are not indispensable to the commission of the crime;
and

3. That there be a relation between the acts done by the principal

and those attributed to the person charged as an accomplice.
(People vs. Gambao, G.R. No. 172707, October 1, 2013).
Conspiracy – If there is conspiracy, the accused who cooperated with the chief
actor in the commission of the offense, can be held liable as principal by direct
participation or principal by indispensable cooperation but not as an accomplice.
Conspirators are liable as principals regardless of the extent of participation and the
time of participation.
An accomplice’s role in the perpetration of the crime is of a minor character.
If there is ample evidence of criminal participation but a doubt exists as to the nature
of liability, courts should resolve to favour the milder form of criminal responsibility,
that of an accomplice.
Example 1
T, a tough guy who is being feared by the residents of a certain barangay,
challenged X to a fist fight. X did not react and just kept silent. When T has his back
turned of the challenge of T, B gave his knife to X who, in turn, repeatedly stabbed T
who instantaneously died. The act of B in giving his knife to his brother X is a previous
act thereby concurring and cooperating with the intention of X to stab T. B is liable
as an accomplice.
But if X used a gun which he happened to pick up and did not use the knife
given to him by his brother B, the latter is not criminally liable as an accomplice.

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Example 2
After X, Y and Z have forcibly abducted a girl whom they wanted to rape, and
in order to bring her to a place when they can better accomplish their intention, they
asked the driver of a taxi-cab parked along the road to bring them to a certain place.
In spite of his knowledge that the three were abducting the girl, the driver drove his
taxi-cab with the girl and the three abductors on board.
The driver is considered as an accomplice because by his act of driving his taxi-
cab with the girl on board, he was concurring with the acts of the three abductors
thus cooperating with them in their criminal design. If, however, there is conspiracy,
the driver and X, Y and Z are all principals by direct participation.
Example 3
M was a common enemy of X and Y who long wanted to kill him. One evening,
without the knowledge of X who has been tracking down the whereabouts of M, Y
was following X when the latter kept himself posted in a dark corner of the street to
wait for M to pass by. When M was already approaching X, without the latter’s
knowledge, Y who was behind X, shot M who died due to the fatal gunshot wound
on his head.
Y is clearly liable as a principal by direct participation; however X cannot be
held liable either as principal or accomplice. X’s act of waiting for M for the purpose
of killing him is not even considered as an ovet act. X cannot also be liable as an
accomplice because his act of waiting M has no relation with the act of Y in shooting
M. X did not know that Y would kill M during that time, hence, community of criminal
design between them was not present at the time of the killing of M.
Example 4
One is an accomplice in the crime of kidnapping if he guarded the detained
person to prevent him from escaping.
A is liable as an accomplish, by rendering C unconscious, which is a previous
or simultaneous act but not indispensable as B could have killed C with his bolo even
if A did not intervene. B is a principal by direct participation in the crime of homicide.

Compare a principal by inducement and an accomplice

a. A principal by inducement induces the other offenders to commit an act
in such a way that without the inducement the crime would not be
committed. His inducement must be obeyed by exerting influence or
moral ascendancy over the other malefactors. An accomplice’s
inducement or utterance is immaterial for with or without such
utterance, the crime would be committed.

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 b. The cooperation of the principal in the offense is indispensable without
which the crime would not be committed whereas the cooperation of
the accomplice is in a minor way.

c. Both the principal and the accomplice act or before or during the
commission of the crime. But the principal directs the way the crime
would be committed while the accomplice has no part in such planning;
he is not an author thereof.
A lookout who was not part of the conspiracy but participated only after such
decision was reached incurs criminal liability as an accomplice since he is merely an
instrument of the crime and he cooperates after the decision to commit the same
had already been made. (People vs. Suarez, 267 SCRA 119; People vs. De Vera, G.R.
No. 128966, August 18, 1999) Conversely, a “look is a principal if he were a co-
conspirator and participated in deciding the course of action to be taken in the
criminal design or he is a co-author of the crime and provides his companions
effective means and encouragement to carry out the same. His being a lookout is
necessary part of the concerted action to achieve the desired result. (People vs.
Loreno, 130 SCRA 311)

An accomplice and a conspirator compare

1. An accomplice came to know about the commission of the crime after the
principals have decided to commit a crime; whereas a conspirator knows the
criminal intention because he and his co-conspirators have decided on such
criminal intention;

2. An accomplice does not decide whether a crime should be committed, for he

merely concurs with the plan and cooperates in the accomplishment of the
plan; whereas, a conspirator decides with his co-conspirators to commit a
crime;
3. An accomplice is merely an instrument who performs acts not essential to the
commission of the crime; whereas a conspirator is an author of the crime
(People v. Garcia, 373 SCRA 134)

Article 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;
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 2. By concealing or destroying the body of the crime or the effects or
instrument thereof, in order to prevent its discovery;
3. By harbouring, concealing, or assisting in the escape of the principal of
the crime, provided the accessory acts with abuse of his public functions
or whenever the author of the crime is guilty of treason, parricide, murder
or an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crimes.
One is liable as an accessory if he participates subsequent to the commission
of the crime.
Accessories:
a. Have knowledge of the commission of the crime;
b. Have not participated therein; and
c. Take part subsequent to its commission (accessory after the fact) in any
of the following 3 manners:

1. By profiting or assisting the offender to profit from the effects of the

crime;

2. By concealing or destroying the body of the crime (corpus delicti) or

effects or the instruments thereof to prevent its discovery; and

3. By harbouring, concealing or assisting in the escape of the principal:

a. In case of a public officer for any crime if he acts with abuse of
public functions;

b. In case of private individuals when the principal 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.
Accessories may be liable as principal in another crime if his acts or omission
is also penalized in a special law such as fencing. In crimes under special laws or
crimes mala prohibita, the offenders generally are penalized as principals unless
otherwise provided.
Example 1
After killing his wife and in order that he would not be discovered and
arrested, H went to his legally adopted brother B, and asked the latter to hide him in
his house. Because of the Omega wrist watch which H gave him, B harboured and
concealed him. B is not liable as an accessory because he did not profit from the
effects of the crime of parricide, the watch given to him was not an effect of the

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crime; besides he is the adopted brother of H and therefore exempted undert Article
20 of the RPC. (Campanilla)
Example 2
If H killed his wife in order to get the pieces of jewelry and other valuable
personal belongings of the latter which she bought before her marriage to him, and
one of these personal belongings thereafter taken by H was the diamond ring which
he gave to B, the latter is an accessory because B has profited from the effects of the
crime of parricide. (Camapnilla)
Exanple 3
X, a Chinese businessman who went on the verge of bankruptcy because of
business reversals, insured his building in the amount more than his insurable
interest on the building. Shortly thereafter, X burned his building including the goods
inside therein. X instructed his driver D, to remove all the traces of the crime before
the insurance inspectors arrive which the driver did.
If D knew that the crime of arson was committed and he followed the
instructions of X, he is liable as accessory because he concealed and destroyed the
evidence the crime of arson while X is liable as principal by direct participation.
(Campanilla)

Between an accomplice and an accessory:

a. An accomplice participates before or during the commission of the
offense; accessory, subsequent thereto.

b. An accomplice knows of the criminal design of the principal; an

accessory knows of the commission of the offense.

c. The former provides material or moral aid in an efficacious way but not
in a manner indispensable to the offense; the latter acts in the 3 ways
specified in Article 19
Accessories by profiting
One, who had knowledge of the commission of the crime and did not
participate in its commission as principal or accomplice, yet took part subsequent to
its commission by profiting himself or assisting the offender to profit by the effects
of the crime, is an accessory. There are two views as to the meaning of profiting:
Under the first view, to profit means to materially benefit from the act or to
improve his economic condition.

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 Riding in a stolen vehicle is “not profiting” since it does not improve his
economic position. Profiting is not synonymous to intent to gain as an element of
theft. But one, who regularly used a carabao in farming with knowledge that the
property was stolen, is liable as an accessory. The regularity in the use of the stolen
property improves the economic position of the user. He is liable as accessory since
he materially benefits from the crime of theft.
Receiving 10% of the proceeds of insurance involving a burned building in
consideration of his service as a lawyer despite of knowledge that the money are
effects of the crime of arson makes him liable as an accessory. (1987 BAR).
Under the second view, deriving benefit from something is profiting.
Improving economic condition is not required. Hence, eating a stolen meat will make
one liable as an accessory. (BAR 2014).
If the crime is robbery or theft and one who bought, sold, possessed, or in any
other manner dealt with the articles which he knew or should have known are
proceeds of robbery or theft, he is a principal in the crime of fencing. If he were not
charged with fencing in a separate information, then he is a liable only as an
accessory in the crime of robbery or theft.

BAR 1995 – Fencing vs. Theft or Robbery

What is the difference between a fence and an accessory to theft or robbery?
Explain. Is there any similarity between them?
One difference between a fence and an accessory to theft or robbery is the
penalty involved; a fence is punished as a principal under PD No. 1612 and the
penalty is higher, whereas an accessory to robbery or theft under the Revised Penal
Code is punished two (2) degrees lower than the principal, unless he bought or
profited from the proceeds of theft or robbery arising from robbery in Philippine
Highways under PD No. 532 where he is punished as an accomplice, hence the
penalty is one (1) degree lower.
Also, fencing is malum prohibitum and therefore there is no need to prove
criminal intent of the accused, this is not so in violations of the Revised Penal Code.
Suggested answer
Yes, there is a similarity in the sense that all the acts of one who is an accessory
to the crime of robbery or theft are included in the acts defined as fencing. In fact,
the accessory in the crimes of robbery or theft could be prosecuted as such under
the Revised Penal Code or as a fence under PD No. 1612 (Dizon-Pamintuan vs.
People, 234 SCRA 63)

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 If the crime is brigandage and he profited from the loot, he is liable for abetting
brigandage – an accomplice of brigands. He should be charged in a separate
information otherwise he would be liable as an accessory.
A person who received any property from another, and used it, knowing that
the same property had been stolen is guilty as an accessory because he is profiting
by the effects of the crime. By employing the two carabaos in his farm, Taer was
profiting by the objects of the cattle rustling. (Taer vs. CA)
Accessories by concealing or destroying the body of the crime
a. The body of the crime or corpus delicti is the body or substance of the
crime and in its primary sense refers to the fact that a crime has actually
been committed. As applied to a particular offense, it means the actual
commission by someone of the particular crime charged.

b. Corpus delicti is a compound fact made up of 2 things:

1. The existence of a certain act or result forming the basis of the

criminal charge (criminal event); and

2. The existence of a criminal agency as the cause of this act or result.

c. Otherwise stated, its elements are: a) the proof of the occurrence of a

certain event; and b) some person’s criminal responsibility. (People vs.
Boco, G.R. No. 129676, June 23, 1999) Thus, in drug sale, it must be
established that an illegal sale of the regulated drug took place; and the
accused were the authors thereof.
Example
A person who placed a weapon in one of the hands of the deceased after he
was killed to show that he was armed and it was necessary to kill him for having
offered resistance to the authorities is an accessory.
Assisting the principal to escape
a. The offender to be assisted must be a principal; assisting an accomplice
is not included.

b. A police officer who was present when the crime was committed
abused his official function when he failed to immediately arrest the
offender and conduct a speedy investigation of the crime, but instead
left the scene of the crime together with the offender, thus assisting the

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 offender to escape. Being a public officer, he is an accessory to the
crime. (People vs. Antonio, July 14, 2000)

c. Those who assist the principal to escape may be prosecuted under P.D.
1829 – obstruction of justice- not an accessory but as a principal
provided that a separate information is prepared for obstruction. When
he is convicted thereunder, the penalty to be imposed is the penalty
under P.D. 1829 or any other law, including the Revised Penal Code,
whichever is higher.

d. Obstruction of justice is committed by any person who knowingly or

wilfully obstructs, impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of criminal cases. P.D.
1829 does not distinguish between a public officer and a private person
who assists the principal.
Example

1.A mayor who refused to prosecute the offender, making it possible for him
to escape is an accessory.

2. A person who when aske by the police gave false information regarding
the whereabouts of a person who was guilty of murder in order to enable the latter
to escape is an accessory as by misleading the police, he thereby assisted in the
escape of the principal.

Article 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 relative by affinity within the same degrees, with
the single exception of accessories falling within the provisions of paragraph 1 of
the next preceding article.
The offender’s spouse, ascendant, descendant, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity within the same degree as the
foregoing enumerated relatives are exempt from criminal liabilities when they act as
accessories to the offender’s crime in the manner enumerated in Article 19 except
for profiting or assisting the offender to profit by the effects of the crime.
When the relatives assist the principal by concealing or destroying the body of
the crime or by assisting in his escape, the law recognizes that they are motivated by
natural affection for the offender. However, when they profit or assist the offender

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in profiting by the effects of the crime, they are doing so because of greed, hence
they are liable.
The relatives to be assisted do not include by consanguinity in the 4 th civil
degree, unlike defense of relatives under Article 11 which includes those within the
fourth civil degree. The relatives enumerated in Articles 15 and 20 are the same; both
exclude relatives by consanguinity in the fourth civil degree.
Article 332 exempts also certain relatives for the crimes of theft, estafa, and
malicious mischief.
Example:
X stole the Rolex watch of Y. In order that he would not be arrested, he sought
the help of his brother B who in turn assited him to escape. At this point, B is not
criminally liable as an accessory because of his relationship with X. However, if B sold
the watch which X stole and make use of the proceeds thereof, or gave the proceeds
to X, B is now liable as an accessory because B profited or caused X to profit from the
proceeds of the sale of the watch. (Art. 19[1] in relation to Art. 20).
The reason for the exemption is obvious: it is based on ties of blood and the
preservation of the cleanliness of one’s name, which compels one to conceal crimes
committed by relatives so near as those mentioned in the above Article (People vs.
Mariano).

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 Title Three

PENALTIES

Chapter One
PENALTIES IN GENERAL

PENALTIES
1. Penalties are the punishment imposed by lawful authority upon a person who
commits a deliberate or negligent act (Moreno, Philippine Law Dictionary, 3d
ed., cf., People vs. Moran 44 Phil. 431)

2. Penalties are prescribed by statutes and are essentially and exclusively

legislative in character. Judges can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislature.
(People vs. Dela Cruz, G.R. No. 100386, December 11, 1992)

3. Under the Code, penalties are:

a. Graduated;
b. Divided into three (3) periods except reclusion perpetua which is indivisible;
c. Classified into principal or accessory;
d. Understood to be a degree for purposes of lowering the penalty under
Article 61 in applying the Indeterminate Sentence Law or owing to
privileged mitigating circumstances;
Even if the provision provides for 1 or more period of a divisible penalty, that
is considered 1 degree for purposes of lowering the penalty. For instance, if the
penalty prescribed is arresto mayor, medium period, that is 1 degree and the penalty
next lower in degree is arresto mayor, minimum period.
e. Imposed on the principal offender in the consummated stage;
f. The maximum imposable, i.e., the court cannot increase the penalty
prescribed by any degree no matter how many aggravating circumstances
are present. For instance, in homicide, even if there are 10 aggravating (not
qualifying) circumstances without any mitigating, the penalty can only be
increased to the maximum period of reclusion temporal and cannot be
increased to reclusion perpetua.
Courts must employ the proper nomenclature specified in the Code, such as
reclusion perpetua not life imprisonment; or ten days of arresto menor not ten days
of imprisonment. (People vs. Latupan, GR. Nos. 112453-56, June 28, 2001)

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Article 21. Penalties that may be imposed. - No felony shall be punishable by any
penalty not prescribed by law prior to its commission.

This Article enunciates the legal maxim of nullum crimen nulla poena sine lege
(no crime if no law punishing it). Punishment for violations of penal laws (including
special penal laws) is based on the police power of the State. No felony shall be
punishable by any penalty not prescribed by law prior to its commission. Unless there
is a law penalizing an act or omission, the offender cannot be enalized, no matter
how reprehensible the act may be. This supplements the ex post facto edict under
the Constitution.
The following are the characteristics of penalty
1. It is judicial and legal because it is based on the judgment prescribed by
law;
2. It is certain and definite because it is not subject to any condition;
3. It is commensurate because its extent must be consonance with the gravity
of the offense;
4. It is personal because no one shall be punished for the crime committed by
anoter person;
5. It is equal because it is applicable equally to all offenders who are similarly
situated;
6. It is productive of suffering but without affecting the dignity of a human
personality; and
7. It is generally correctional.
The theories or justifications for penalty are:
1. Prevention – to prevent or suppress any danger caused to the State by the
criminal acts of the offenders;
2. Self-defense – as the State has the right to protect society or the people
from the wrongdoings of criminal;
3. Reformation – to correct and reform offenders;
4. Exemplarity – to serve as example of deterrence of others from
committing crimes; and
5. Justice – as punishment imposed by the State is its act of retributive justice
and vindication of its rights violated by criminals.

Article 22. – Retroactive effect of penal laws. – Penal laws shall have a retroactive
effect in so far as they favour 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, although at the
time of the publication of such laws a final sentence has been pronounced and the
convict is serving the same.

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 The prospectivity rule mandates that penal laws shall have only prospective
application. Article 22 provides the exception thereto, that is, when the law shall be
given retroactive application.
But when the culprit is a habitual delinquent, he is not entitled to the benefit
of the provisions of the new favourable law or statute. A person is deemed to be a
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, ROBBERY,
THEFT, ESTAFA, or FALSIFICATION, he is found guilty of any said crimes a third time
or oftener.
The court can sua sponte apply Article 22 even when not invoked by the
accused otherwise, the plain precept thereof would be useless and nugatory if courts
were not under obligation to fulfill such duty, whether or not accused has applied
for it, just as would also all provisions relating to prescription of crime and penalty.

Article 23 – Effect of Pardon by the Offended party. – A pardon by 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.
A pardon by the offended party does not extinguish criminal action.
Even if the injured party already pardoned the offender, the prosecutor can
still prosecute the offender. Such pardon by the offended party is not even a ground
for the dismissal of the complaint or information.
Reason: a crime committed is an offense against the State. In criminal cases,
the intervention of the aggrieved parties is limited to being witnesses for the
prosecuton. Only the Chief Executive can pardon the offenders.
Except as provided in article of this code
The offended party in the crimes of adultery and concubinage cannot institute
criminal prosecution, if he shall have consented or pardoned the offenders.
The pardon here may be implied, as continued inaction of the offended party
after learning of the offense.
The second paragraph of Article 344 requires that both offenders must be
pardoned by the offended party.
In the crimes of seduction, abduction, rape or acts of lasciviousness there shall
be no criminal prosecution if the offender has been pardoned by the offended party
or her parents, grandparents, or guardian, as the case may be. The pardon must be
express.
Pardon under Article 344 is only a bar to criminal prosecution

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 Even under Article 344, the pardon by the offended party does not extinguish
criminal liability; it is only a bar to criminal prosecution. Article 89, providing for total
extinction of criminal liability, does not mention pardon by the offended party as one
of the causes of totally extinguishing criminal liability.

Article 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 imbecililty, 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 or public office during the trial or in order
to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their
administrative or disciplinary powers, superior officials may impose upon
their subordinates.
5. Deprivation of rights and the reparations which the civil law may establish
in penal form.
What are the 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 imbecililty, 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 or public office during the trial or in order
to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their
administrative or disciplinary powers, superior officials may impose upon their
subordinates.
5. Deprivation of rights and the reparations which the civil law may establish in
penal form.
The five (5) measures in this article are not penalties for otherwise, it will
violate the constitutional provision on presumption of innocence and because these
measures are not imposed as a result of trial on the merits. However, Article 29
provides that the period of preventive imprisonment will be deducted from the term
of imprisonment.

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 Preventive suspension pending investigation is not a penalty but a measure
intended to enable disciplining authority to investigate the charges against
respondent by preventing the latter from intimidating or in any way influencing
witnesses against him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and he will automatically
be reinstated. If after investigation respondent is exonerated, he should be
reinstated. (Gloria vs. CA, G.R. No. 131012, April 21, 1999)
Preventive suspension is not a penalty for it is not imposed as a result of
judicial proceedings. In fact, if acquitted, the respondent shall be entitled to
reinstatement and to the salaries and benefits he failed to receive. (Santiago vs.
Sandiganbayan, G.R. No. 128055, April 18, 2001)

EFFECTS OF RA NO. 10951 TO THE REVISED PENAL CODE

In the 2014 case of Lito Corpuz v. People of the Philippines, G.R. No. 180016,
April 29, 2014, the Supreme Court turned the spotlight on the perceived injustice
brought about by the range of penalties that the courts continue to impose on crimes
committed today, based on the amount of damage measured by the value of money
80 years ago. As shown in the explanatory note of Senate Bill No 14 that because RA
No. 10951, the Corpuz case was used as a basis of adjusting the amount involved,
value of the property or damage on which the penalty is based and the fine under
the Revised Penal Code. (Campanilla)
TIMES 200 FORMULA – The minimum wage rate on January 1, 1931, the date of
effectivity of the Revised Penal Code is two pesos and fifty centavos (P2.50).
However, in 2017, the year when RA No. 2017 was enacted, the minimum wage rate
reached more than P500. 00. In sum, the minimum wage in 2017 is 200 folds higher
than in 1932. Hence, RA No. 10951 has adjusted the amount involved, value of the
property or damage on which the penalty is based and the fine under the Revised
Penal Code by multiplying them by 200.

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 Chapter Two
CLASSIFICATION OF PENALTIES

Article 25. Penalties which may be imposed. - The penalties which may be 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,

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 Forfeiture or confiscation of instruments and proceeds of the offense,
Payment of costs.

Principal penalties are those specified in Book II for specific felonies. The must be
imposed by the court expressly in the dispositive portion of the decision.
What are the penalties that may be imposed under the Revised Penal Code?

Article 25. Penalties which may be imposed. - The penalties which may be imposed
according to this Code, and their different classes, are those included in the
following:

Principal Penalties

Death.

Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor.

Prision correccional,
Arresto mayor,
Suspension,
Destierro.

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.

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SEC. 2. Article 26 of the same Act is hereby amended to read as follows:

"ART. 26. Fine.- When afflictive, correctional, or light penalty.- A fine, whether
imposed as a single or as an alternative penalty, shall be considered an afflictive
penalty, if it exceeds One million two hundred thousand pesos (P1, 200, 000); a
correctional penalty, if it does not exceed One million two hundred thousand pesos
(P1, 200, 000) but is not less than Forty thousand pesos (P40, 000); and a light
penalty, if be less than Forty thousand pesos (P40, 000)."

Under Article 26 of the Revised Penal Code as amended by RA No. 10951, a

fine, whether imposed as a single or as an alternative, shall be considered as afflictive
penalty, if it exceeds P1, 200, 000. 00; a correccional penalty, if it does n ot exceed
P1, 200, 000. 00 but is not less than P40, 000. 00; and a light penalty, if it less than
P40, 000. 00.
Fines are imposed in many article of this Code as an alternative penalty.
Example: In Art. 144, punishing disturbance of proceeding, the penalty is arresto
menor or a fine ranging from P200. 00 to P1, 000. 00.
The law does not permit any court to impose a sentence in the alternative, its
duty being to indicate the penalty imposed definitely and positively.
Afflictive – Over P6, 000. 00
Corrctional – P200. 00 to P6, 000. 00
Light penalty – less than P200. 00

DURATION AND EFFECTS OF PENALTIES

Section One. - Duration of Penalties

Article 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.

In several cases, the Supreme Court has reminded the Bench and the Bar as to
the difference between the penalties of reclusion perpetua and life imprisonment,
as they are not synonymous. The distinctions are sum up as follows:
1. Reclusion perpetua has a specific duration of 20 years and 1 day to 20 years,
with accessory penalties 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.
While life imprisonment has no definite duration and no accessory penalties;
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 2. Reclusion perpetua is a penalty provided for under the Revised Penal Code,
while life imprisonment is provided generally for violation of special laws.

3. Reclusion perpetua has accessory penalties while life imrprisonment has no

accessory penalties.
As early 1948, it was made clear that reclusion perpetua is not the same as life
imprisonment. Thus, S.C. Adm. Circular 6-A-92 (June 21, 1993) amending Circular 6-
92 (October 12, 1992) enjoins strict observance of their distinctions to curb the
erroneous practice of using them interchangeably in the imposition of penalty for
serious offenses like murder. (People vs. Narca, G.R. No.108488, July 21, 1997)
Although reclusion perpetua has now a definite term of 20 years and 1 day to
40 years, it remains indivisible penalty for there is no clear legislative intent to alter
its original classification as such. This is clear as Congress did not accordingly amend
Article 63 and 76 on what are considered divisible penalties and what should be the
duration of the periods thereof. Other provisions involving reclusion perpetua such
as Article 41 on accessory penalties and paragraphs 2 and 3 of Article 61 were not
also amended. (Campanilla)
Reclusion Perpetua can be imposed by operation of law such as in qualified
felonies. When reclusion perpetua is imposed as a result of the operation of the law,
such as in qualified theft, [Article 310 in relation to Article 309, no. 1], the accessory
penalty shall be that provided under Article 40 of the Code (People vs. Canales, G.R.
No. 126319, October 12, 1998) but the offender shall not be given the benefit of
Article 27 until 40 years have elapsed, otherwise there could be no difference at all
between reclusion perpetua when imposed as a penalty next higher in degree and
when it is imposed as a penalty fixed by law. (People vs. Bago, 330 SCRA 115)

BAR 2019

In November 2018, Mr. N, a notorious criminal, was found guilty of three (3)
counts of Murder and was consequently sentenced with the penalty of reclusion
perpetua for each count. A month after, he was likewise found guilty of five (5)
counts of Grave Threats in a separate criminal proceeding, and hence, meted with
the penalty of prision mayor for each count.

(a) What are the respective durations of the penalties of reclusion

perpetua and prision mayor?

(b) How long will Mr. N serve all his penalties of imprisonment? Explain.

(c) May Mr. N avail of the benefits of the Indeterminate Sentence Law with
respect to his convictions for Murder and Grave Threats? Explain.

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 (d) Is Mr. N considered a habitual delinquent? Explain.

Reclusion temporal. - The penalty of reclusion temporal shall be from twelve years
and one day to twenty years.

What is the duration of 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 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.

What is the duration of 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.

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.

What is the duration of 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.

Destierro is considered as a principal, correctional and divisible penalty which

under Art. 87 of this Code prevents a person from entering the place or places
designated in the sentence, nor within the radius therein specified, which shall not
be more than 250, and not less than 25 kilometers from the place designated.

In what cases destierro imposed?

1. Serious physical injuries or death under exceptional circumstances (Art. 247);

2. In case of failure to give bond for good behaviour (Art. 284);
3. As a penaty for the concubine in concubinage. (Art. 334)
4. In cases where after reducing the penalty by one or more degrees destierro is
the proper penalty.

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BAR 1982

May an accused person sentenced to destierro be credited with a portion of

the time during which he had undergone preventive imprisonment? If not, why not?
If in the affirmative, what portion of the time of preventive imprisonment should be
credited to him?

Suggested Answer

An accused sentenced to destierro can be credited with a portion of his

preventive imprisonment in the service of the sentence consisting of deprivation of
liberty because destierro as a penalty involves also deprivation of liberty although
partial. (People v. Bastasa et. al., 88 SCRA 184)

Arresto mayor. - The duration of the penalty of arresto mayor shall be from one
month and one day to six months.

What is the duration of 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
day to thirty days.

What is the duration of Arresto menor. –

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

Bond to keep the peace is a principal penalty yet there is no crime in Book II
for which it can be imposed because, being a principal penalty, it must be specifically
prescribed in Book II for a particular felony. There being none, the penalty is
unenforceable by virtue of Article 21, which states that no felony shall be punishable
by any penalty not prescribed by law prior to its commission.

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Compared with bond for good behaviour:
a. Bond for good behaviour is a principal penalty which is not prescribed for
any felony; bond to keep the peace is a penalty specifically applicable to
grave and light threat only.
b. Failure to post bond for good behaviour will make the accused suffer
desterrio; failure to post bond to keep peace will supposedly make him
suffer detention.

Article 28. Computation of penalties. – If the offender shall be in prison, the term
of the duration of the temporary penalites 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
offenrder 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.
It is clear under this article that the computation of penalties depends on
whether the offender is in prison or not and what kind of penalty has been imposed
upon him.
The rule may be summed up:
1. If the offender is in prison, the term of the duration of the temporary
penalties is computed from the day on which the judgment of conviction
shall have become final.

2. If the offender is not in prison, the term of the duration of the penalty
consisting in 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; and

3. The term of the duration of other penalties is computed from the day on
which the accused commences to serve his sentence.

Article 29 – Period of preventive imprisonment deducted from term of

imprisonment. – Offenders or accused 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

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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.
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 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 imprisonment. (as amended by RA No. 6127, and EO No. 214).

Section 1 (RA No. 10592). Article 29 of Act No. 3815, as amended, otherwise
known as the Revised Penal Code, is hereby further amended to read as follows:

"ART. 29. Period of preventive imprisonment deducted from term of

imprisonment. – Offenders or accused 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 after
being informed of the effects thereof and with the assistance of counsel 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 do so in writing with the assistance of a
counsel and shall be credited in the service of his sentence with four-fifths of the
time during which he has undergone preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be
deducted from thirty (30) years.

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 Whenever an accused has undergone preventive imprisonment for a period
equal to 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 thereof or the
proceeding on appeal, if the same is under review. Computation of preventive
imprisonment for purposes of immediate release under this paragraph shall be the
actual period of detention with good conduct time allowance: Provided,
however, That if the accused is absent without justifiable cause at any stage of the
trial, the court may motu proprio order the rearrest of the accused: Provided,
finally, That recidivists, habitual delinquents, escapees and persons charged with
heinous crimes are excluded from the coverage of this Act. 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."

When should the accused be placed on preventive imprisonment?

If the accused was detained by reason of a warrant of arrest or bench warrant
or a lawful warrantless arrest, and he was not able to post bail due to financial
incapacity or since the offense of which he is charged is non-bailable, his detention
is called preventive imprisonment (1994 BAR)
Credit of preventive imprisonment – Under Article 29 of the RPC, as amended
by RA No. 10592, an accused who has undergone preventive imprisonment shall be
credited, either full or 4/5 of the term, in the service of their sentence consisting of
deprivation of liberty, provided he is not disqualified.
Preventive imprisonment (for detention prisoners) is for the purpose of
preventing the accused from going into hiding. The accused is detained if the offense
is not bailable, or if bailable he cannot post bail and he is not qualified for
recognizance.
Full credit for the detention shall be granted if the detention prisoner agrees
in writing to abide by the same disciplinary rules imposed on convicts unless:
a. They are recidivists or convicted previously twice or more of any crime.
b. When upon being summoned for the execution of their sentence they have
failed to surrender voluntarily.
Credits shall be 4/5 of the stay in detention when he does not agree to be
treated similarly as convicted prisoners. When the maximum penalty imposable is
desterrio, the accused shall be released after 30 days of preventive imprisonment
because arresto menor is more severe penalty than destierro under Article 70.
The deduction of the period of preventive imprisonment applies where the
accused is sentenced to destierro because destierro constitutes deprivation of liberty
also. This allowance should be made even where the penalty imposed is reclusion
perpetua because it does not make any distinction between temporal and perpetual
penalties. (People vs. Corpuz, G.R. No. 99865, March 28, 1994)
144
Example
H killed his wife, W, after he surprised her having sexual intercourse with P.
BecauseH was prosecuted for parricide which is a non-bailable offense, he was
detained pending trial. After two years, judgment was rendered convicting him
under Art. 247 and was imposed with the penalty of destierro. H is entitled to be
given 4/5 or full time credit, as the case may be, of his preventive imprisonment of
two years because the penalty of destierro also involves of deprivation of liberty
since H is not free to enter a prohibited area within a certain period.
There are three scales of penalties in the Code:
a. Article 25 classifies the penalties into principal and accessory.
b. Article 70 provides for the scale when there are 2 or more sentences to be
served, and prescribes the 3-fold rule.
c. Article 70 graduates the penalties in the order of severity for purposes of
applying the rules under Article 61 in relation to Articles 50-57 on lowering
of penalties considering the stage of accomplishment of the offense and
the level of participation of the offender.
Disqualification is both a principal and an accessory penalty. It is a principal
penalty when prescribed in Book II as a penalty for a particular crime; an accessory
penalty when the principal penalty to which it is attached is imposed.
All prisoners whether under preventive detention or serving final sentence,
cannot practice their profession or engage in any business or occupation, or hold
office, elective or appointed as a necessary consequence of arrest and detention. As
a matter of law, when a person indicted for an offense, is arrested he is deemed
placed under the custody of law. He is placed in actual restraint of liberty in jail so
that he may be bound to answer for the commission of the offense. He must be
detained in jail during the pendency of the case against him unless he is authorized
by the court to be released on bail or on recognizance. An attorney cannot practice
law during that period except where he would appear in court to defend himself.
(People vs. Maceda, G.R. Nos. 89591-96, Minute Resolution, January 24, 2000)
Public censure is classified under Article 25 of the Code as a light penalty, and
is considered under the graduated scale provided in Article 71 as a penalty lower
than arresto menor. The offense of reckless imprudence resulting in slight physical
injuries penalized with public censure is therefore a light felony. (Reodica vs.
Memoracion, July 1998)
R.A. No. 9346 – Abolition of Death Penalty
Provisions of the Revised Penal Code affected by R.A. No. 9346:
a. Article 25 – on the category of capital punishment;
b. Article 47 – cases when the death penalty shall not be imposed;
automatic review of death penalty cases;
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 c. Paragraphs 2 of Article 63 – rules for the application of indivisible
penalties;
d. Article 71 – on the severity of penalty, death penalty is deleted as the
reckoning degree for graduated penalty;
e. Article 74 – penalty higher than reclusion perpetua in certain cases;
f. Article 61 (2)- when the penalty prescribed for the crime is composed
of 2 indivisible penalties, the penalty next lower in degree shall be that
immediately following the lesser of the penalties prescribed in the
respective graduated scale.
The debarring of the death penalty through R.A. 9346 did not correspondingly
declassify those crimes catalogued as heinous. The amendatory effects of R.A. 9346
extend only to the application of the death penalty but not to the definition or
classification of crimes. The penalties for heinous crimes have been downgraded
under the aegis of the new law. Still, what remains extant is that such crimes, by their
abhorrent nature, constitute a special category by themselves. Accordingly, R.A.
9346 does not serve as basis for the reduction of civil indemnity and other damages
that adhere to heinous crimes.

Article 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.

What are the effects of penalties of perpetual or temporay absolute disqualifition?

The following are the effects of perpetual or temporary absolute

disqualification:

1. The deprivation of the public offices and employments which the offender
may have held even if conferred by popular election.

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 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.

All these effects last during the lifetime of the convict and even after the
service of sentence except as regard pars. (2) and (3) of the above in connection with
temporary absolute disqualification. Temporary absolute disqualification lasts only
during the term of the sentence (People vs. Abes, 24 SCRA 780)

Article 31. Effect of the penalties of perpetual or temporary special

disqualification. - The penalties of perpetual or temporal special disqualification
for public office, profession or calling shall produce the following effects:

1. The deprivation of the office, 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.

What are the effects of penalties of perpetual or temporary special disqualification?

The following are the effects of the penalties of perpetual or temporary special
disqualification:

1. The deprivation of the office, 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.

Article 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

147
elected to such office. Moreover, the offender shall not be permitted to hold any
public office during the period of his disqualification.

What are the effects of the penalties of perpetual or temporary special

disqualification for the exercise of right of suffrage?

The effect of the penalties of perpetual or temporary special disqualification

for the exercise of the right of suffrage are the following:

1.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.

2. Moreover, the offender shall not be permitted to hold any public office
during the period of his disqualification.

Article 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.

What are the effects of the penalties of suspension from any public office, profession
or calling, or the right of suffrage?

The following are the effects of the penalties of suspension from any public
office, profession or calling, or the right of suffrage:

1.Shall disqualify the offender from holding such office or exercising such
profession or calling or right of suffrage during the term of the sentence.

2. The person suspended from holding public office shall not hold another
having similar functions during the period of his suspension.

The manifest purpose of the restrictions upon the right if suffrage or to hold
office is to preserve the purity of elections. The presumption is that one rendered
infamous by conviction of felony or other bases offenses indicative eof moral
turpitude, is unfit to exercise the privilege of suffrage or to hold office. The exclusion
must for this reason be adjudged a mere disqualification, impose for protection and
not for punishment, the withholding of a privilege and not the denial of a personal
right (People vs. Corral)

What suspension from exercise of profession covers?

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 Suspension, which deprives the offender of the right of exercising any kind of
profession or calling, covers such calling or trade as for instance that of broker,
master plumber etc.

Article 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.

What are the effects of civil interdiction?

The effect of Civil interdiction shall deprive the offender during the time of his
sentence of the

1.Rights of parental authority, or

2. Guardianship, either as to the person or property of any ward,

3. Of marital authority, of the right to manage his property and

4. The right to dispose of such property by any act or any conveyance inter vivos.

Civil interdiction is an accessory penalty imposed upon a convict who is

sentenced to death and the same was not executed by reason of commutation or
pardon, or to reclusion perpetua and reclusion temporal.
Article 38 of the New Civil Code defines civil interdiction as one of the
restrictions on capacity to act but does not exempt the offender from certain
obligations, as when the latter arise from his act or from property relations. It is an
accessory penalty meted on a person sentenced to reclusion perpetua and reclusion
temporal.
A civilly interdicted convict cannot appoint an agent for the act of the agent is
the act of the principal. Otherwise he would be doing indirectly what the law
prohibits to be done directly. In fact, one of the causes of extinction of agency is civil
interdiction.
What the law prohibits is the disposition of property by an act inter vivos. The
will of the testator does not dispose of the property at the time of its making but at
the time of his death.
The deprivation of parental authority, marital authority and guardianship
relates to family relations; managing property and disposing property by acts inter
vivos relate to property laws.

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Article 35. Effects of bond to keep the peace. - It shall be the duty of any 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, is he shall have
been prosecuted for a grave or less grave felony, and shall not exceed thirty days,
if for a light felony.

What are the duties of a person sentenced to give bond to keep the peace?

It shall be the duty of any 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.

What is the rule in the event the offender cannot give 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, is he shall have been
prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a
light felony.

Article 36. Pardon; its effects. – 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 perdon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
Effects of pardon by the President:
1. A pardon shall not restore the right to hold public office or the right of
suffrage.

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 Exception: when any or both such rights is or are expressly restored by the
terms of the pardon.
2. It shall not exempt the culprit from the payment of the civil indemnity. The
pardon cannot make an exception to this rule.
Limitations upon the exercise of the pardoning power:
1. That the power can be exercised only after conviction.
2. That such power does not extend to case of impeachment.
3. In election offenses, it can be exercised only upon recommendation of the
COMELEC.
Pardon by the Chief Executive distinguished from pardon by the offended party:
1. Pardon by the Chief Executive extinguishes the criminal liability of the
offender; such is not the case when pardon is given by the offended party.
2. Pardon by the Chief Executive cannot include civil liability which the
offender must pay; but the offended party can waive the civil liability which
the offender must pay;
3. In cases where the law allows pardon by the offended party as provided for
by Art. 344 of the Revised Penal Code, the pardon should be given before
the institution of criminal prosecution and must be extended to both
offenders; whereas, pardon by the Chief Executive is granted only after
conviction and may be extended to any of the offenders.
Example
Atty. P was prosecuted for and convicted of the crime of bigamy, a crime
involving moral turpitude. Because of this conviction, a disbarment case was filed
against him. The Pesident extended to him an absolute pardon. The disbarment
proceeding was subsequently dismissed on the basis of the absolute pardon (In Re:
Atty. Tranquilino Rovero, 101 SCRA 799).

Article 37. Costs. – 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 inforce, or amounts not
subject to schedule.
The following are incuded in costs:
1. Fees; and
2. Indemnities, in the course of judicial proceedings.
Costs are chargeable to the accused in case of conviction.

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 Costs which are expenses of litigation are chargeable to the accused only in
cases of conviction. In case of acquittal, the costs are de oficio, each party bearing
his own expenses.
Thus, of three accused, two were convicted while the third was acquitted. Only
one of the two accused appealed. His conviction was affirmed. He was ordered to
pay one-third of the costs.
Jurispredence mandates that no costs shall be charged against the Republic,
unless the law provides the contrary:
Payment of costs is discretionary:
The payment of costs is a matter that rests entirely upon the discretion of
courts. Appeal will hardly lie to interfere with the discretion.

Article 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 the consequential damages.
3. The fine.
4. The costs of the proceedings.
What are the pecuniary liabilities of the accused?
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 the consequential damages.
3. The fine.
4. The costs of the proceedings.
Article 38 is applicable “in case the property of the offender should not be
sufficient for the payment of all his pecuniary liabilities.” Hence, if the offender has
sufficient property or no property at all, there is no use for Article 38.
The pecuniary liabilities of the offender are those owing to the offended party
for reparation of the damage caused and indemnification of consequential damages
(Article 104) and those owing to the government in the form of fine and costs of
proceedings.
They are to be settled in the order given: reparation, then indemnification,
next fine and lastly costs of the proceedings, if the means of the convict are not
enough to settle them all.

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 Fine is a pecuniary punishment imposed by a lawful tribunal upon a person
convicted by a crime. (Esler vs. Ledesma, 52 Phil. 114) Clearly, the fine provided for
in B.P. 22 was intended as an additional penalty for the act of issuing a worthless
check. This is the only logical conclusion since the law does not require that there be
damage or prejudice to the individual complainant by reason of the issuance of the
worthless check. (Lazaro vs. CA, December 1993)
In Article 9, a P200 fine is a light penalty but in Article 26, it is correctional
penalty. Article 9 should prevail when the issue is prescription of crime because it is
within the Title of the Code pertaining to felonies and how they are committed.
Article 26 should prevail when the issue is prescription of penalty because within the
Title of the Code on penalties.
Fine whether imposed singly or alternatively is:
a. Afflictive/grave if more than P6,000.00
b. Correctional/less grave if P200.00 – P6,000.00
c. Light if less than P200.00

Article 39. Subsidiary penalty. - If the convict has no property with which to meet
the fine mentioned in the paragraph 3 of the nest 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
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 financial circumstances should improve. (As amended by RA 5465, April 21,
1969).

RA 10159, approved April 10, 2012, amended Article 39 of this Code by

changing the rate of Subsidiary Penalty at one day for each amount equivalent to the
highest minimum wage prevailing in the Philipines at the time of the rendition of
judgment of conviction by the trial court.
Subsidiary penalty provided for under Art. 39 of this Code applies only in case
of non payment of FINE. Hence, it does not apply to (a) reparation of the damage
caused and (b) indemnification of consequential damages. If expressly stated in the
judgment of conviction, subsidiary imprisonment is applicable only fines. However,
there is no subsidiary penalty for non-payment of costs.
Subsidiary penalty takes the place of the fine for insolvent convicts. It is neither
a principal nor accessory penalty, but a substitute penalty for fine only. The
subsidiary penalty may be in the form of imprisonment or deprivation of right
depending upon the principal penalty imposed on the convict.
The computation is as follows:
a. Purely fine and felony subsidiary imprisonment
committed is: shall:
Grave or less grave not exceeds 6 months
Light felony not be more than 15 days
b. Fine and imprisonment which should not be higher than prison
correccional or 6 years;
c. Fine and destierro which must be of a fixed duration; destierro also in
accordance with the above rules. The same goes with Fine and
Suspension.
Subsidiary penalty is not proper when:
a. The principal penalty is higher than prision correccional or over 6 years
(6 years and 1 day);
b. The principal penalty consists in other than prison sentence which is not
of fixed duration;
c. Subsidiary penalty is not expressly stated in the sentence to take the
place of fine in case of insolvency;
d. The sentence imposed does not include fine; and
e. The convict is not insolvent.
The court must expressly state that subsidiary penalty shall be served in case
of insolvency because this is not an accessory penalty that follows the principal
penalty as a matter of course. So, if the decision is silent as to the imposition of
subsidiary penalty in case of non payment of fine, the accused may not be compelled
to serve the same.

154
BAR 1978
A bus driver was found guilty of damage to property through reckless
imprudence. He was sentenced “to pay a fine of P5, 000. 00 and the costs.” The driver
was insolvent and could not pay the fine.
May the driver be required to serve subsidiary imprisonment? Explain.
Suggested answer
No, because subsidiary imprisonment in case of insolvency to pay the fine, is
not expressly provided in the sentence. (People v. Fajardo, 65 Phil. 639)

BAR 1980
“P” was sentenced from six (6) years and one (1) day to twelve (12) years one
one (1), and ordered to pay a fine of P2, 000. 00
May “P” be compelled to serve subsidiary imprisonment in case of failure to
pay the fine?
Suggested answer
P cannot be compelled to serve subsidiary imprisonment. Art. 39 par. 3 of the
RPC provides that there is no subsidiary imprisonment if the principal penalty is
higher than prison correccional. The penalty of 6 years and 1 day to 12 yesrs and 1
day is higher than prision correccional which has a maximum of 6 years only. The
mere addition of 1 day to 6 years is already higher than prision correccional and in
such a case there can be no subsidiary imprisonment for failure to pay the fine.
(Rosario v. Director of Prisons, L- 03463, March 6, 1950).
The accused cannot choose to serve subsidiary penalty, instead of paying
pecuniary liabilities, if he has property with which to pay them. It is only when the
accused has no property with which to meet his pecuniary liabnilities that he is
required to suffer subsidiary penalty.
Pecuniary liability distinguished from pecuniary penalty
a. Pecuniary liabilities are those which a convicted offender is required to pay in
money to the offended party and the government which are:
1. Reparation of the damage caused;
2. Indeminification of consequential damage;
3. Fine; and
4. Costs of the proceedings
Reparation of the damage cuased and indemnification of consequential damage
are paid as civil liability to the private offended party while the fine and cost of the
proceedings are paid to the government.

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 b. On the other hand, pecuniary penalties are those a convicted offender may be
required to pay in money to the government, which are:
1. Fine; and
2. Costs of the proceedings.

BAR 2019

Mr. Q was found guilty beyond reasonable doubt of the crime of Serious
Physical Injuries, and accordingly, was sentenced to suffer the penalty of
imprisonment for an indeterminate period of six (6) months of arresto mayor, as
minimum, to four (4) years, two (2) months, and one (1) day of prision correccional,
as maximum. He was also ordered to pay the victim actual damages in the amount
of ₱50,000.00, with subsidiary imprisonment in case of insolvency.

Was the imposition of subsidiary imprisonment proper? Explain.

Section Three. - Penalties in which other accessory penalties are inherent

Article 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.

Accessory penalties of Death Penalty. –

The death penalty, when it is not executed by reason of commutation or

pardon shall carry with it that of

(1) Perpetual absolute disqualification and

(2) Civil interdiction during thirty years following the date sentence, unless such
accessory penalties have been expressly remitted in the pardon.

Article 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.

Accesory Penalties of Reclusion perpetua and reclusion temporal.

The penalties of reclusion perpetua and reclusion temporal shall carry with
them that of

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1.Civil interdiction for life or during the period of the sentence as the case may be,
and

2. 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.

Article 42. Prision mayor; Its accessory penalties. - The penalty of prision mayor,
shall carry with it that of temporary absolute disqualification and 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.

Accesory Penalties of Prision mayor.

The penalty of prision mayor, shall carry with it

(1) Temporary absolute disqualification and

(2) 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.

Article 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.

Accessory Penlaties of Prision correccional.

The penalty of prision correccional shall carry with it

(1) Suspension from public office,

(2) From the right to follow a profession or calling, and
(3) 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.

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Article 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.

Accessory Penalties of Arresto

The penalty of arresto shall carry with it

(1) Suspension of the right to hold office and

(2) The right of suffrage during the term of the sentence.

Article 45. Confiscation and forfeiture of the proceeds or instrument 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 both with which it
was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in
favour of the Government, unless they be the property of a third person not liable
for the offense, but those articles which are not subject of lawful commerce shall
be destroyed.
Outline of the provision of this article:
Every penalty imposed carries with it the forfeiture of the proceeds of the
crime and the instruments or tools used in the commission of the crime.
The proceeds and instruments or tools of the crime are confiscated and
forfeited in favour of the Governemt.
Property of a third person not liable for the offense is not subject to
confiscation and forfeiture.
Property not subject of lawful commerce (whether it belongs to the accused
or to third person) shall be destroyed.
Confiscation/forfeiture of the proceeds or instruments of the crime is
automatically imposed unless:
(a) They were the property of 3rd person who has no complicity in the
crime, or
(b) If the property is not within the jurisdiction of the court because it was
not submitted thereto.
The forfeiture of the proceeds or instruments of the crime cannot be ordered
if the accused is acquitted, because no penalty is imposed.
Notwithstanding the foregoing confiscation shall proceed if the articles are by
themselves contraband or not subject of lawful commerce like dangerous drugs.

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Article 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 in general terms, it shall
be understood as applicable to the consummated felony.
Penalty prescribed in general terms – General rule.
The penalty prescribed by law in general terms shall be imposed:
1. Upon the principals.
2. For consummated felony.
In Article 249, for instance, the penalty of reclusion temporal is provided for
the crime of homicide. That penalty is intended for the principal in a consummated
homicide.

Article 47. In what cases the death penalty shall not be imposed; Automatic review
of death penalty cases. – The death penalty shall be imposed in all cases in which
it must be imposed under existing laws, except when the guilty person is below
eighteen (18) yeas of age at the time of the commission of the crime or is more
than seventy (70) years of age or when upon appeal or automatic review of the
case by the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall be reclusion
perpetua.
In all cases where the death penalty is imposed by the trial court, the records
shall be forwarded to the Supreme Court for automatic review and judgment by
the court en banc, within twenty (20) days but not earlier than fifteen (15) days
after promulgation of ther judgment or notice of denial of any motion for new trial
or reconsideration. The transcript shall also be forwarded within ten (10) days after
the filing thereof by the stenographich reporter. (As amended by R.A. No. 7659)
Death penalty is not imposed in the following cases:
1. When the guilty person is below 18 years of age at the time of the commission
of the crime.
2. When the guilty person is more than 70 years of age.
3. When upon appeal or automatic review of the case by the Supreme Court, the
vote of eight (8) members is not obtained for the imposition of the death
penalty.

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Article 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. (As amended by Act No. 4000).
Article 48 speaks of 2 kinds of plurality of offenses:
(a) “When a single act constitutes two or more grave or less grave felonies”
otherwise called compound crime or delito compuesto.

(b) “When an offense is a necessary means for committing the other” also
known as complex crime proper or delito complejo.
Compound crimes are those committed when a single act results to 2 or more
grave or less grave felonies. The felonies committed may be: (a) 2 or more grave
felonies (b) 2 or more less grave felonies or (c) 1 or more and 1 or more less grave
felonies. The resultant light felony shall be treated as a separate offense.
The basis of compound crimes is the singularity of the act such as the single
act of throwing hand grenade, killing some and seriously wounding a number of
persons. However, the act of pulling the trigger of automatic gun with several bullets
coming out, killing several persons is not compound crime because of the special
property of the automatic gun and the offender knowing this fact. (People vs.
Tabaco, G.R. No. 100382-100385, March 19, 1997.)
If the act or acts complained of resulted from a single criminal impulse, such
as throwing hand grenade, it constitutes a single offense. Since the 3 murder and
attempted murders were produced by a single act (the explosion caused by the
hurling of a grenade into the bedroom of the victim), the case comes from under
Article 48. Only 1 Information should be filed. (People vs. Carpo, G.R. No. 132676,
April 4, 2001)
COMPLEX CRIME PROPER – complex crime proper is composed of two or more
crimes one or some of which are necessary means to commit the other. The phrase
“necessary means” in Article 48 does not mean indispensable. A crime, which is an
indispensable means to commit another, is an element of and absorbed by the latter.
(David v. People, G.R. No. 208320, August 19, 2015).

BAR 2019

Ms. E was charged with the complex crime of Estafa through Falsification of
Public Documents before the trial court. Prior to her arraignment, Ms. E moved for
the dismissal of the criminal case against her, pointing out that the private offended
party is her biological father, and that such relationship is an absolutory cause under
Article 332 of the Revised Penal Code (RPC).

(a) Explain the concept of complex crimes under the RPC.

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 (b) Is Ms. E's contention correct? Explain.

Seduction through usurpation of function.

In the case of U.S. v. Hernandez, G.R. No. L – 9405, December 24, 1914,
accused who seduced a 15 year old girl to live with him by procuring the performance
of a fictitious marriage ceremony with the help of Bautista, who pretended to be a
Protestant minister, was held liable for the complex crime of simple seduction
through usurpation of official function. Usurping the function of a priest to solemnize
marriage is a necessary means to seduce a minor. (1935 BAR)
The case of Hernandez was decided prior to the effectivity of the RPC. At that
time, a religious official such as a bishop is a person in authority within the purview
of the Old Penal Code. (U.S. v. Smith, G.R. No. 14057, January 22, 1919. However,
Article 152 of the RPC does not include religious minister as a person in authority.
Hence, performing the function of a religious minister in solemnizing marriage is not
anymore constitutive of usurpation of official function of a person in authority.
(Campanilla)
Falsification, malversation, estafa, and theft. – If falsification of document is a means
to commit or to conceal malversation, estafa, or theft, the following rules shall be
observed:

Falsification of public, official or commercial document as a means to commit

malversation, estafa, or theft. – When the offender commits falsification of public,
official, or commercial document as a necessary means to commit malversation,
estafa, or theft, the crime committed is complex crime under Article 48 of the RPC.
(David v. People, G.R. No. 208320, August 19, 2015; 1950, 1961, 1986 and 1993 BAR).
A public officer who used falsified document to misappropriate government
fund is liable for malversation through falsification of document or estafa through
falsification of document depending upon the nature of his position. If the public
officer is an accountable officer, misappropriation of public funds is malveration. If
the public officer is not an accountable officer, misappropriation of funds is estafa.
Using a falsified check to defraud the bank is estafa through falsification of
commercial document. Using a stolen and falsified check to defraud the bank is theft
through falsification of commercial document. (People v. Salonga, G.R. No. 131131,
June 21, 2001).
Falsification of public, official or commercial document as a means to conceal
malversation, estafa, or theft. – When the offender commits falsification of public,
official, or commercial document as a means to conceal malversation, or theft, the
crimes are separate. This is not complex crime proper since one is not a necessary
means to commit another.

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Falsification of private document as a means to commit malversation, estafa, or theft
– Under the doctrine of common element, an element used to complete one crime
cannot be legally re-used to complete the requisites of a subsequent crime. The
common element of estafa or malversation and falsification of private document is
damage to the complainant. Thus, falsification of private document and estafa or
malversation cannot co-exist. The use of damage as an element of falsification of
private document precludes the re-use thereof to complete the elements of estafa
or malversation, and vice versa. (1955 and 1984 BAR) (Campanilla).
If the falsification of a private document (demand letter) is committed as a
means to commit estafa, the proper crime to be charged is falsification. (Batulanon
v. People, G.R. No. 139857, September 15, 2006). The use of damage as an element
of falsification of private document precludes the re-use thereof to complete the
elements of estafa. (2008 BAR)
Falsification of private document as a means to conceal malversation, estafa, or
theft. – Where falsication of private document is only committed as a means to
conceal estafa, the crime is estafa only. Falsification of private document is not
committed because (a) the use of damage as an element in estafa precludes the re-
use thereof to complete the elements of falsification of private document; (b) the
damage to third person is not caused by the falsity in the document but by the
commission of estafa; and (c) the estafa can be committed without the necessity of
falsifying a private document. (1972 BAR) (Campanilla)
If falsification of private document was used as a means to commit estafa, the
former was committed ahead of the latter; hence, falsification of private document
absorbs the element of damage of estafa. If the falsification of private document was
used as a means to conceal estafa, the latter was committed ahead of the former;
hence, estafa absorbs the element of damage of falsification of private document.
Offense under special law – If the acts committed against a child, who is 12
years old and above, constitute sexual abuse and rape through sexual intercourse,
the perpetrator shall be prosecuted either for sexual abuse or rape through sexual
intercourse. Rape cannot be complexed with Sexual Abuse. Under Article 48 of the
RPC, a felony cannot be complexed with an offense penalized by a special law. He
cannot be charged with both crimes for the same act because his right against double
jeopardy will be prejudiced. Both crimes are of the same nature since the essence of
both is having sex without consent. (Alberto v. CA, G.R. No. 182130, June 19, 2013)
(Campanilla).
There is no complex crime proper of homicide and illegal possession of loose
firearm since the latter is an offense punishable under special law. Moreover, Article
48 of the RPC on complex crime will not apply since the applicable rule is Section 29
of RA 10591, which makes using loose firearm as a special aggravating circumstance
in homicide. (1954, 1973, and 1975 BAR).

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 If the accused issued a bouncing check to defraud the victim, he cannot be
made liable for complex crime of estafa through violation of BP 22 since the latter is
punishable under special law. (1987 BAR). But he can be charged of estafa and
violation of BP 22 without offending the rule on double jeopardy.
Both crimes are not of the same nature. Estafa is malum in se, and deceit and
damage are essential elements thereof. On the other hand, violation of BP 22 is
malum prohibitum, and decit and damage are not essential elements thereof. (1983,
1984 and 1996 BAR). Moreover, Section 5 of BP 22 provides that prosecution under
this Act shall be without prejudice to any liability for violation of any provisions of
the RPC.
If the accused kills his victim by shooting him with a loose firearm, he may not
be convicted of the complex crime of homicide through illegal possession of loose
firearm. An offense punishable under special law such as illegal posseson of loose
firearm cannot be made a component of a complex crime. He is liable for homicide
only while the use of loose firearm will be regarded as a special aggravating
circumstance under Section 29 of RA 10591. (1954, 1973, and 1975 BAR)
(Campanilla)
If unlawful arrest is committed to plant incriminating evidence, the crime
committed is complex crime of incriminating innocent person through unlawful
arrest (2012 BAR). If incriminating evidence is planted to justify an unlawful arrest,
the crime committed is complex crime of unlawful arrest through incriminating an
innocent person. But if the incriminatory evidence planted is dangerous drugs (1977
and 2011 BAR), explosive or loose firearm (1952 BAR), the accused is liable for
planting evidence under special law (Section 29 of RA 9165, Section 38 of RA 10591
and Section 4-A of PD No. 1866 as amended by RA 9516) and not incriminating an
innocent person. Unlawful arrest and planting of evidence are separate crimes.
Complex crime is not committed since planting of evidence, which is punishable uder
special law, cannot be made a component of a complex crime.
It does not include:
a. A crime to conceal another because the law specifies to commit not
to conceal;

b. A crime which is an element of the other for in that case, the former
shall be absorbed such as trespassing which is an element of
robbery;

c. A crime which has the same element as the other crime committed.
For instance, estafa and falsification of private documents have the
same element of damage. Thus, there is NO complex crime of estafa

163
 thru falsification of private document. But falsification of public,
official or commercial documents does not have the element of
damage, hence, there is a complex crime of estafa through
falsification of public, or official, or commercial documents.

d. A crime which is incidental to the other such as taking of a woman

from her house, bringing her to a concealed place to commit rape on
her. The taking is incidental to the main purpose to commit rape
hence the crime is rape only.
The penalty for complex crimes under Article 48 is the penalty for the most
serious crime in the maximum period. Such penalty is beneficial to the accused
because of the fact that he is given a single penalty whereas if the crime is considered
separate, the offender shall be given as many penalties as there are crimes
committed.
Arson with homicide is not a complex. If death results by reason or on the
occasion of arson, the crime is aggravated arson (special complex crime). The deaths
here are not separate crimes but are merely qualifying circumstances. Example: The
accused killed 4 persons and the house was burned to conceal the killing. In the
course of the arson, a baby in the house was burned to death. How many crimes
were committed?
One arson resulting to the death of the infant and 4 counts of murder, each
count aggravated by dwelling. For the arson where death resulted, they should be
sentenced to a separate term of reclusion perpetua, and for the 4 counts of murder,
4 terms each of reclusion perpetua to be served successively in accordance with
Article 70 of the Revised Penal Code. (People vs. Cedonio, January 1994)
(Campanilla).
The other kinds of plurality of crimes where a single penalty is imposed are:
(a) Composite crimes or special complex crimes;
(b) Continued crime or delilto continuado; and
(c) Continuing crimes or transitory crimes.
Composite crimes are those which are treated as single indivisible offenses
although comprising more than one specific crime and with specific penalty. They
are also called special complex crimes, such as arson with homicide and those found
under Article 294 on robbery with homicide, etc. They are deemed a product of one
criminal impulse. They are not complex crimes.
Composite crimes (special complex crime) versus complex crimes:
(a) In composite crimes, the offense comprising the same are fixed by law
e.g., robbery with rape, robbery with mutilation. In complex crime, the

164
 combination of the offenses is not specified but generalized, that is,
grave and/or less grave; or one offense being necessary means to
commit the other.

(b) In composite crime, the penalty for the specified combination of crimes
is also specific. For instance, in robbery with homicide, the penalty
prescribed is reclusion perpetua. In complex crime, the penalty is not
specific but is for the most serious offense in the maximum period.

(c) In complex crimes, the light felony resulting from the same act is treated
separately. In special complex crimes, the other felonies are absorbed.
Thus, in robbery with homicide, the homicide is deemed generic and
includes the slight physical injuries inflicted on the same occasion of
robbery. (People v. Villaflores, G.R. No. 184926, April 11, 2012; 2005
BAR).

(d) In composite crimes, there is only one indivisible felony even if there are
excess counts e.g., kidnapping with multiple rapes or multiple homicide
result to a single crime of kidnapping with rape or kidnapping with
homicide. The excess rapes and homicide are absorbed. In complex
crime, the excess crimes are not absorbed. Hence, in forcible abduction
with multiple rapes, the first rape is complexed with the abduction, the
excess rapes are separate crimes.
Splitting the special complex crime or complex crime – If the components of a
complex crime or special complex crime are alleged in two different Informations,
the accused will be convicted of separate crimes. He will not be held liable for a
special complex crime of robbery with homicide. (People v. Legaspi, G.R. Nos. 92167-
68, July 14, 1995; 1998 BAR), or qualified carnapping), or complex crime of murder
and frustrated murder because to do so would be to violate his right to due process
(People v. Umawid, G.R. No. 298719, June 9, 2014); or special complex crime of
kidnapping with rape (People v. Cilot, G.R. No. 208410, October 19, 2016)
(Campanilla)
Acquittal from one component offense does not mean acquittal from others
We stress that the failure of the prosecution to prove one of the component
crimes and the acquittal arising therefrom will not necessarily lead to a declaration
of innocence for the other crimes. Settled is the rule that when a complex crime is
charged and the evidence fails to establish one of the component offenses, the
accused can be convicted of the others, so long as they are proved. (Monteverde vs.
People, G.R. No. 139610, August 12, 2002)

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 Doctrine of absorption – Under the classical theory, on which the RPC is
principally based, a man is essentially a moral creature with an absolutely free will
to choose between good and evil. If despite of such free will, he still commits an evil
act prohibited by law, the State will penalize him as a measure of retribution. A
criminal should therefore be adjudged on the basis of his criminal resolution and not
on the number of acts he commits in furtherance of a single criminal mind. Despite
the plurality of his acts, if his criminal intent is singular, retributive justice of “an eye
for an eye, a tooth for a tooth” is served by imposing upon him a single penal
sanction. (Campanilla)
Crimes under the RPC are mala in se, the concept of which gives importance
to criminal intent or mens rea of the offender. Thus, the number of criminal intent
and not the number of crimes committed generally determine the number of penalty
to be imposed for multiple crimes. Multiple crimes commited by the same offender
under a single criminal impulse are treated as one crime and punished with a single
penalty. Thus, a single penalty is being imposed for multiple crimes with single
criminal intent, which are merged to form a delito compuesto, delito complejo,
delito continuado or absorbing crime.
One of the rules that require imposition of single penalty for multiple crimes
is the doctrine of absorption, or “one penalty for one criminal mind,” under which
one crime absorbs another if the latter is inherent in, an element of, or a necessary
consequence of the commission of the former. A crime is considered inherent where
its commission is an indispensable means to commit another.
Element of a crime – A person who by means of violence coerces a lady to
have sexual intercourse with him should not be held liable for physical injuries and
coercion in addition to rape. Physical injuries are necessary consequence of the
employment of violence, which is an element of rape, while coercion is inherent
therein. Hence, Physical injuries and coercion are absorbed in rape.
Treason – Levying war against the government in adherence to its enemy is
the first mode of committing treason. Killing soldiers of the government is an
inherent means to levy war. Adherence to the enemy by giving aid and comfort is
the second mode of committing treason. Investigating guerrillas and torturing them
is giving aid and comfort to the Japanese imperial army. Since murder of soldiers and
guerrillas are inherent means to commit treason, former is absorbed in the latter.
Political crime – The word “rebellion” evokes not only a challenge to the
constituted authorities, but also civil was, on a bigger or lesser scale, with all the evils
that go with it. It connoted necessarily, or even generally, either rphysical injuries, or
murder. Where the crimes of murder, robbery, and kidnapping are commited as a
means to or in furtherance of the rebellion charged, they are absorbed by, and form
part and parcel of, the rebellion, and that therefore, the accused can be convicted
only of the simple crime of rebellion, and not a complex crime of rebellion with

166
murders, robbery, and kidnapping. (People v. Hernandez. G.R. Nos. L – 6025-26, July
18, 1956; (1962 BAR). (Campanilla)
If murder, kidnapping and arson are committed in furtherance of rebellion,
they will be divested of their character as common crimes and will assume the
political complexion of rebellion. Hence, accused cannot be prosecuted for murder,
kidnapping and arson separately or complexed with rebellion. Rebellion absorbs
these common crimes. (People v. Geronimo, G.R. No. L – 8936, October 23, 1956).
If murder is committed for private purposes or if robbery or kidnapping is
committed for profit without any political motivation, even though the common
crimes are simultaneously committed with rebellion, the doctrine of absorption will
not apply.
Coup d’ etat is a political crime because the purpose of coup plotter is to seize
or diminish State power. If murder, kidnapping and arson are committed in
furtherance of coup d’etat, they will be divested of their character as common crimes
and will assume the political complexion of coup d’etat. Hence, accused cannot be
prosecuted for murder, kidnapping and arson separately or complexed with coup d’
etat. Coup d’etat absorbs these common crimes. (Gonzales v. Abaya, G.R. No.
164007, August 8, 2006).
When one of the crimes is not proved the effect is that the accused can be
convicted of the other. For instance, in rape with homicide, if the rape was not
proved, the accused may be convicted of homicide. If there is an allegation of
qualifying circumstance, conviction for murder is also proper because the term
“homicide” as used in special complex crime of rape with homicide is to be
understood in its generic sense, and includes murder and slight physical injuries
committed by reason or on occasion of rape. But unless the qualifying circumstances
are alleged in the information, the offender is presumed to have no independent
knowledge of the facts that constitute the offense and cannot be convicted of an
offense higher than that for which he is tried. It matters not how conclusive and
convincing the evidence of guilt may be, he cannot be convicted of any offense unless
it is charged in the complaint or information for which he is tried, or is necessarily
included in that which is charged. (People vs. Gallarde, G.R. No. 133025, February
17, 2000) (Campanilla)

CONTINUED CRIME
In order that continued crime or delito continuado may exist, there should be:
(1) plurality of acts performed separately during a period of time; (2) unity of criminal
intent and purpose; and (3) unity of penal provision infringed upon or violated.
(Santiago v. Garchitorena , G.R. No. 109266, December 2, 1993).

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 In “delito continuado” or “continued crime” and sometimes referred to as
“continuous crime,” the offender is impelled by a single criminal impulse but
committed a series of overt act at about the same time in about the same place and
all the overt acts violate one and the same provision of law. Only one crime shall be
charged. Example: In Santiago vs. Garchitorena, the original information charged
petitioner with performing a single criminal act – approving the application for
legalization of aliens not qualified under the law to enjoy such privilege. The original
information also averred that the criminal act: (i) was in violation of E.O. 324 dated
April 3, 1988, (ii) caused an undue injury to one offended party, the Government,
and (iii) was done on a single day, on or about October 17, 1988.
The trend in theft cases is to follow the so-called “single larceny doctrine,” that
is, the taking of several things, whether belonging to the same or different owners,
at the same time and place constitutes but one larceny. Abandoned is the “separate
larceny doctrine” under which there was a distinct larceny as to the property of each
victim. Also abandoned was the doctrine that the government has the discretion to
prosecute the accused for one offense or for as many distinct offenses as there are
victims.
Also, the act of taking 2 roosters belonging to 2 different persons in the same
place and on the same occasion cannot give rise to 2 crimes having an independent
existence of their own, because there are not 2 distinct appropriations nor 2
intentions that characterize 2 separate crimes.
Single larceny rule – Under the “single larceny” doctrine, that is, the taking of several
things, whether belonging to the same or different owners, at the same time and
place constitutes but one larceny or theft. Single larceny rule is specie of delito
continuado, which is specifically applicable to theft.
In People v. Tumlos, G.R. No. 46428, April 13, 1939, En Banc, the theft of the
13 cows owned by six owners involved 13 acts of taking. However, the acts of taking
took place at the same time and at the same place; consequently, accused performed
but one act. The intention was likewise one, that is, to take for the purpose of
appropriating or selling the 13 cows which he found grazing in the same place. The
fact that eight of said cows pertained to one owner and five to another does not
make him criminally liable for as many crimes as there are owners, for the reason
that insuch case neither the intention nor the criminal act is susceptible of division.
(People v. Jaranilla, G.R. No. L – 28547, February 22, 1947; 1963; 1973 and 1976 BAR)
Single larceny rule or delito continuado principle is not applicable to violence
against women under RA No. 9262 or sexual abuse under RA No 7610. Each incident
of sexual intercourse and lascivious act with the same child exploited in prostitution
or subject to other sexual abuse is a separate and distinct offense under Section 5
(b) of RA No. 7610. The offense is similar to rape or acts of lasciviousness under the
RPC in which each act of rape or lascivious conduct committed against the victim

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should be the subject of separate Information. (People v. Lavides, G.R. No. 129670,
February 1, 2000). Psychological violence committed by the husband against this
wife on two different occasions constitutes two counts of violence against women
under RA No. 9262. (Dinamling v. People, G.R. No. 199522, June 22, 2015; 2015 Bar).
Single criminal impulse to commit robbery – Several acts, which are performed
separately during a period of time under a single criminal intent in violation of penal
provision, constitute a continued crime. Thus, several acts of taking away by force
the money and valuables of the employees working in Energex gasoline station
committed under a single criminal intent to commit robbery in that place in violation
of a single penal provision (Article 294 RPC) constitute a continued crime of robbery.
(People v. De Leon, G.R. No. 179943, June 29, 2009; 1996 BAR)
Single criminal impulse to satisfy lust – Accused inserted his penis thrice into the
private part of victim for purpose of changing position. The three penetration
motivated by a single criminal intent to satisfy his lust in violation of single penal
provision (Article 266-A RPC) constitute a continued crime of rape. (People v. Aaron,
G.R. No.s 136300-02, September 24, 2002). Accused inserted his penis thrice into the
private part of the victim for the purpose of resting in five minutes. He satisfied his
lust every time he would with draw his penis to rest. Since the three penetrations
were motivated by three separate intents to satisfy his lust, three separate crimes of
rape are committed. (People v. Lucena, G.R. No. 190632, February 26, 2014)
Some examples of delito continuado:
a. Theft of 13 cows belonging to different owners committed at the
same place and at the same period of time. (People vs. Tumlos, 67
Phil. 320)

b. Theft of 6 roosters belonging to 2 different owners from the same

coop and at the same period of time. (People vs. Jaranillo, 55 SCRA
563)
c. The illegal charging of fees for services rendered by a lawyer each
time he collects veteran’s benefits on behalf of a client, who agreed
that the attorney’s fees shall be paid out of said benefits. (People vs.
Sabbun, 10 SCRA 156). The collections of the legal fees were impelled
by the same motive, that of collecting fees for services rendered, and
all acts of collection were made under the same criminal impulse.
(People vs. Lawas, 97 Phil. 975).
Cases when the concepts of delito continuado was not applied:
a. 2 estafa cases one of which was committed during the period from
January 19 to December 1955 and the other from January 1956 to July
1956. (People vs. Dichupa, 113 Phil. 306). The said acts were committed
on different occasions.

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 b. Several malversations committed n May, June and July 1936 and
falsifications to conceal the said offenses committed in August and
October 1936. The malversations and falsifications were not the result
of only one purpose or of only one resolution to embezzle and falsify.
(People vs. Cid, 66 Phil. 354).

c. 2 estafa cases, one committed in December 1963 involving failure of the

collector to turn over the instalments for a radio and the other in June
1964 involving pocketing of instalments for a sewing machine. (People
vs. Ledesma, 73 SCRA 77).

d. 75 estafa cases committed by the conversion by the agent of collections

from customers of the employer made on different dates. (Gamboa vs.
CA, 68 SCRA 308)

A continuing crime is:

a. In procedural law, one where any of the elements of the offense were
committed in different localities; the accused may be indicted in any of
those localities.
b. Any offense which is continuing in time, e.g., rebellion which may have
been started years ago by the offenders and continuing up to the
present.
Examples
a. Rebellion, insurrection, conspiracy and proposal to commit such crimes,
setting them apart from the common offenses, aside from their
essentially involving a massive conspiracy of nationwide magnitude.
(Garcia-Padilla vs. Enrile, 121 SCRA)

b. Violation of BP 22. Venue is determined by the place where the

elements of making, issuing, or drawing of the check and delivery
thereof are committed. The place where the bills were written, signed,
or dated does not necessarily fix or determine the place where they
were executed. What is of decisive importance is the delivery thereof.
The delivery of the instrument is the final act essential to its
consummation as an obligation. (Ibasco vs CA, G.R. No. 117488,
September 5, 1996)

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 c. Abduction, kidnapping and illegal detention which are both transitory
and continuing in time if the victim was transported and/or held for a
time period.
When an act or acts constitute more than one offense, the accused may be liable
either for:
a. A single crime, with one crime absorbing the other offense;
b. A complex crime when the offense constitute grave or less grave
felonies or when one crime is the necessary to commit the other;
c. A special complex crime, with each offense constituting elements of the
composite offense;
d. Two separate crimes.
For instance, the taking of a woman forcibly and thereafter, rape was
committed on her. How should the offenders be charged?
a. If the original intent is to rape, the taking is merely a means to commit the
intended offense in which case, the crime is simple rape, the abduction
being a necessary means to bring about the desired result.
b. If the intention is to take the woman against her will with lewd design,
there is the complex crime of abduction with rape.
c. If the original intention is to kidnap the woman for ransom and thereafter,
rape is committed as an afterthought, the offense committed is special
complex crime of kidnapping with rape.
d. If in (b) above, there were several counts of rape, the first rape shall be
complexed with the forcible abduction and the subsequent rapes treated
as separate crimes of rape.
BAR 2004 – Distinguish clearly but briefly: Between compound and complex crime as
concepts in the Penal Code.
BAR 2005 – Complex Crime v. Special Complex Crime v. Delito Continuado.
BAR 1994 - Complex Crime: Aberratio Ictus vs. error in personae
BAR 1999 – Complex Crime: Aberratio Ictus, Error in Personae & Praeter Intentionem
BAR 1996 – Complex Crime: Doctrine of Aberratio Ictus; not applicable.

BAR EXAM
At the height of an altercation, Pedrito shot Paulo but missed, hitting Tiburcio
instead, resulting in the death of the latter. Pedrito, invoking the doctrine of
aberration ictus, claims exemption from criminal liability. If you were the judge, how
would you decide the case?

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Suggested answer
If I were the judge, I would convict Pedrito and find him guilty of the Complex
Crime of Homicide with Attempted Homicide. The single act of firing at Paulo
resulted in the commission of two felonies, one grave (homicide) and the other less
grave (attempted homicide) thus falling squarely under Art. 48 of the RPC; hence the
penalty would be for the more serious crime (homicide) in its maximum period (17
years, 4 months and 1 day to 20 years).
Aberratio Ictus (mistake in the blow) could not be used as a defense as it is not
an exempting circumstance. Pedrito is liable under the principle of Art. 4 of the RPC,
which makes a person criminally liable for all the natural and logical consequences
of his felonious act.

BAR 2003
Can there be a complex crime of coup d’etat with rebellion? (2) Can there be
a complex crime of coup d’etat with sedition?
Suggested answer
Yes, if there was conspiracy between the offender/s committing the coup
d’etat and offender/s committing the rebellion. By conspiracy, the crime of one
would be the crime of the other and vice versa. This is possible because the
offender/s in coup d’ etat may be any person or persons belonging to the military or
the national police or a public officer, whereas rebellion does not so require.
Moreover, the crime of coup d’ etat may be committed singly, whereas rebellion
requires a public uprising and taking up arms to overthrow the duly constituted
government. Since the two crimes are essentially different and punished with
distinct penalties, there is no legal impediment to the application of Art. 48 of the
RPC.
Yes, coup d’ etat can be complexed with sedition because the two crimes are
essentially different and distinctly punished under the RPC. Sedition may not be
directed against the Government or non-political in objective, whereas, coup d ‘ etat
is always political in objective as it is directed against the Govenrment and led by
persons or public officer holding public office belonging to the military or national
police. Art. 48 of the RPC may apply under the conditions therein provided.
Alternative answer
The crime of coup d’ etat cannot be complexed with the crime of rebellion
because both crimes are directed against the Government or for political purposes,
although the principal offenders are different. The essence may be the same and
thus constitute only one crime. In this situation, the two crimes are not distinct and
therefore, may not be proper to apply Article 48 of the RPC.

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BAR 1999 – Complex crime – determination of the crime
A, actuated by malice and with the use of a fully automatic M-14 sub-machine
gun, shot a group of persons who were seated in a cockpit with one burst of
successive, continuous, automatic fire. Four (4) persons were killed thereby, each
having hit by different bullets coming from the sub-machine gun of A. Four (4) cases
of murder were filed against A. The trial court ruled that there was only one crime
committed by A for the reason that, since A performed only one act, he having
pressed the trigger of his gun only once, the crime committed was murder.
Consequently, the trial judge sentenced A to just one penalty of reclusion perpetua.
Was the decision of the trial judge correct? Explain?
Suggested answer
The decision of the trial judge is not correct. When the offender made use of
an automatic firearm, the acts committed are determined by the number of bullets
discharged inasmuch as the firearm being automatic, the offender need only to press
the trigger once and it would fire continually. For each death caused by a distinct and
separate bullet, the accused incurs distinct criminal liability. Hence, it is not the act
of pressing the trigger which should be considered as producing the several felonies,
but the number of bullets which actually produced them.

COMPOUND CRIME – Compound crime is composed of two or more grave or less

grave felonies produced by a single act.
Multiple murders – The single act of rolling the hand grenade on the floor of the
gymnasium, which resulted in the death of the victims, constitutes a compound
crime of multiple murders. (People v. Mores, G.R. No. 189846, June 26, 2013). When
the killing is perpetrated with treachery and by means of explosives. The latter shall
be considered as a qualifying circumstance. Since the use of explosives is the
principal mode of attack, reason dictates that this attendant circumstance should
qualify the offense instead of treachery which will then be considered merely as a
greneric aggravating circumstance. (People v. Comadre, G.R. No. 153559, June 8,
2004; 1991 and 2008 BAR)
Direct assault with homicide or physical injuries – Compound crime is committed
where a single act produces direct assault and injuries upon the victim. Thus, the
accused may be held liable for complex crime of:
Direct assault with serious physical injuries or less serious physical injuries
(2001 BAR)
1. Direct assault with attempted murder; or
2. Direct assault with homicide or murder. (1958; 1991 and 1995 BAR)
3. If a single act produces direct assault and slight physical injuries, there is no
complex crime. Since slight physical injuries is a light felony, it cannot be
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 made as component of a compound crime because Article 48 speaks of
“grave or less grave felony.” In this situation, direct assault absorbs slight
physical injuries. (2001 BAR)
Single act of pressing the trigger– Single act of pressing the trigger of Thompson or
armalite is treated as several acts as many as there are bullets fired from gun.
Because of special mechanism of this firearm, the single act of pressing its trigger will
cause the continuous firing of bullets. Thus, accused is liable for as many homicides
as there are victims. (People v. Bermas, G.R. Nos. 76416 and 94312, July 5, 1999;
1999 BAR)
Variance rule – The body of the information charged the accused of compound crime
of murder and attempted murder since two victims were hit by a single shot. The
evidence shows that murder and attempted murder are separate crimes since the
two victims were hit by several shots. Under the variance rule, if the crime alleged in
the information varies with the crime proven with evidence, the accused shall be
convicted of the crime alleged or proven, whichever is lesser. Thus, accused shall be
convicted of complex crime, which is lesser compared to two crimes. (People v.
Bernardo, G.R. No. 198789, June 3, 2013). (Campanilla)
Complex crime of robbery by means of violence and intimidation and robbery by
using force upon thing. – In People v. Sebastian, G.R. No. L – 2725, February 27, 1950,
the Supreme Court ruled that when the elements of both robbery by means of
violence and intimidation and robbery by using force upon thing are present, the
accused shall be held liable for the former since the controlling qualification is
violence and intimidation.
However, the penalty for robbery in inhabited house if the robber is armed is
graver than simple robbery. Hence, by hurting the victim, the offender shall be
penalized with a lighter penalty. In People v. Napolis, G.R. No. L – 28865, February
28, 1972, En Banc, the Supreme Court expressly abandoned the Sebastian doctrine.
It was held that imposing a much lighter penalty if violence upon person is used in
addition to forcible entry in committing robbery defies logic and reason. When the
elements of both robbery by means of violence and intimidation and robbery by uing
force upon thing are present, the crime is a complex one under Article 48 of the RPC.
Hence, the penalty for robbery in inhabited house shall be imposed in its maximum
period. (1972 and 1973 BAR)
Entry into a dwelling without force upon thing – To apply the Napolis doctrine,
it is important that the robbers entered the dwelling, store or warehouse by using
force upon thing such as unlawful entry or breaking the window. If the robbers
entered the dwelling through an open door or there is no showing how they entered
the dwelling, Napolis principle will not apply since they did not commit robbery by
using force upon thing that can be complexed with robbery by means of violence or
intimidation. In this situation, the crime committed is simple robbery with the

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aggravating circumstance of dwelling. In robbery with violence or intimidation
against persons, dwelling is aggravating since in this class of robbery, the crime may
be committed wihtou the necessity of trepassong the sanctity of the offended party’s
house. (People v. Apduhan, Jr., G.R. No. L -19491, August 30, 1968; 1996; 2005 and
2014 BAR)
Entry into a store without force upon thing – If the robbers entered a store or
warehouse through an open door, and then took property therein, Napolis principle
will not apply since robbery by using force upon thing is not committed. Neither is
the Apduhan principle applicable since a store or a warehouse is not a dwelling
contemplated in Article 14 of the RPC. Hence, the crime committed is simple robbery
without aggravating circumstance of disregard of dwelling. (1986 BAR)
Robbery with homicide – It is submitted that Napolis doctrine is not applicable
if homicide is committed by reason or on occasion of robbery. In robbery with
homicide, all the felonies committed by reason or on occasion of the robbery are
integrated into one and indivisible felony. (People v. Ebet, G.R. No. 181635,
November 15, 2010). Hence, robbery by using force upon thing will also form part of
special complex crime of robbery with homicide. There is no such thing as complex
crime of robbery by force upon thing and special complex crime of robbery with
homicide. A special complex crime cannot be made a component of a complex crime.
Usurpation of authority is either a crime or a qualifying circumstance of
simulation of authority in robbery using force upon thing. However, if the accused
committed usurpation of authority to enter the dwelling and then he committed
robbery with homicide therein, the former will be considered as a component of the
latter. (People v. De Jesus, G.R. No. 134815, May 27, 2004).
Possesion of picklock is either a crime or a qualifying circumstance in robbery
by using force upon thing. But if the accused used picklock to enter the building, and
then, committed rape with homicide therein, the possession of picklock shall be
considered as a component of this special complex crime. (2009 BAR)
Unlawful entry or forcible entry is either a crime or an ordinary aggravating
circumstance or a qualifying circumstance in robbery by using force upon thing. In
case the robbery with homicide is committed in a dwelling afte unlawful entry or
forcible entry, the crime committed is a special complex crime of robbery with
homicide with the ordinary aggravating circumstance of unlawful entry or forcible
entry (People v. Baello, G.R. No. 10134, July 1, 1993).
Accused wearing fatigues barged into the residence of victim. Once inside,
they announced that they were policemen on an official mission. Then they took
therein by force and killed the people inside and barged into the house through its
window, or through the door after destroying the door thereof. Neither did they
pretend the exercise of authority to gain entry to the dwelling. They were already
inside the house when they announced that they are policemen. Hence, the crime

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committed is robbery with homicide with aggravating circumstance of disregard of
dwelling. (1992 BAR)
Example 1
M, Mayor of X town, was on board his Pajero van while inspecting one of his
projects whe he was ambushed and killed by his political rivals. The complex crime
of murder with direct assault was committed.
Example 2
With a .38 caliber revolver, X shot Y but the latter was not hit; instead Z who
passed was seated on a bench was the one hit and died for having been fatally hit on
the head. X committed a complex crime of attempted homicide with homicide. The
single act of shooting Y constitutes less grave felony and a grave felony.
Example 3
A, B, C, and D abducted actress M and the four took turn in raping her. After
the commission of the first rape, the complex crime of forcible abduction with rape
was already committed and the penalty on the four conspirators was death. As to
the last three rapes, they are not connected anymore with forcible abduction but are
considered separate crimes. Considering that they were committed with the
aggravating circumstances of nighttime, abuse of superior strength, ignominy and
use of motor vehicle, four death sentences were imposed on each of the four
conspirators. (People v. Jose, et.al., 37 SCRA 450).

Article 49. Penalty to be imposed upon the principals when the crime committed is
different from that intended. - In cases 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.

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What is the rule in the imposition of penalty in case of error in personae?

In cases 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.

This article does not apply to cases of aberration ictus (mistake in the blow) or
praeter intentionem (greater injury than intended) but applicable only in case of
error in personae (mistake in identity). It likewise contemplates of cases where only
one crime is committed and not two or more crimes, and that the crime must befall
a different person, otherwise, the rules on complex crimes under art. 48 if arising
from a single act, and treated as separate crimes if caused by different acts are
applicable.
The penalties for the intended and the actual crime committed are compared
and the lower penalty is imposed in the maximum period. For instance, if the
intended crime is homicide but due to error in personae, the actual crime committed
is parricide, or the intended crime is parricide but the crime committed is homicide,
either case, the penalty shall be for the homicide.
Article 49 provides for the imposition of the penalty for the lesser crime in the
maximum period, whereas Article 48 prescribes the penalty for the most serious
offense in the maximum period.
Exception: If the crime committed constitutes an attempt or frustration of
another with a higher penalty and the law provides a higher penalty for the
frustrated or attempted, the penalty for the latter shall be imposed in the maximum
period.

Article 50. Penalty to be imposed upon principals of a frustrated crime. - 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.

What penalty to be imposed upon principals of a frustrated crime?

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.

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Example

1. The penalty for the crime of frustrated homicide is prision mayor, which is one (1)
degree lower from reclusion temporay, which is the penalty for consummated
homicide.

2. The penalty for frustrated murder is reclusion temporary, which is one (1) degree
lower from reclusion perpetua, which is the penalty for consummated murder.

Article 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.

What 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.

Example

1. The penalty for attempted homicide is prision correccional, which is two (2)
degrees lower from reclusion temporal, which is the penalty for consummated
homicide.
2. The penalty for attempted murder is prision mayor, which is two (2) degrees
lower from reclusion perpetua, which is the penalty for consummated murder.

Article 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.

What 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.

Example

1. The penalty of prision mayor is to be imposed upon an accomplice in

consummated homicide, which is one (1) degree lower from reclusion
temporal, which is the penalty for the principal in a consummated homicide.

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 2. The penalty of reclusion temporal is to be imposed upon an accomplice in
consummated murder, which is one (1) degree lower from reclusion perpetua,
which is the penalty for the principal in consummated murder.

Article 53. Penalty to be imposed upon accessories to the commission of a

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.

What penalty to be imposed upon accessories to the commission of a 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.

Example

1. The penalty of prision correccional shall be imposed upon an accessories to

the crime of consummated homicide, which is two (2) degrees lower from
reclusion temporal the penalty for the principal in consummated homicide.

2. The penalty of prision mayor shall be imposed upon an accessories for the
crime of consummated murder, which is two (2) degrees lower from reclusion
perpetua, which is the penalty for consummated murder.

Article 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.

What penalty to be 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.

Example

1. The penalty of prision mayor is to be imposed upon the principal in a frustrated

homicide, one (1) degree of which is prision correccional, which is the penalty
for an accomplice in a frustrated homicide.
2. The penalty of prision mayor shall be imposed upon an accomplice in a
frustrated murder, which is one (1) degree lower from reclusion temporal
which is the penalty for principal in frustrated murder.

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Article 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.

What is the 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.

Example

1. The penalty of prision mayor shall be imposed upon a principal in a frustrated

homicide, and two (2) degree from which is arresto mayor, which is the
penalty for an accessories in the crime of frustrated homicide.

2. The penalty of reclusion temporal shall be imposed upon a principal in a

frustrated murder and two (2) degrees from which is prision correccional
which is the penalty for an accessories in a frustrated murder.

Article 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.

What is the 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.

Example

1. Prision correccional is the penalty to be imposed upon a principal in an

attempted homicide, and penalty one (1) degree lower is arresto mayor, which
is the penalty to be imposed upon an accomplice in an attempted homicide.

2. Prision mayor is the penalty to be imposed upon a principal in an attempted

murder and one (1) degree lower from which is prison correccional which is
the penalty for an accomplice in an attempted murder.

Article 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.

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What is the 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.

Example
The penalty of prision correccional shall be imposed upon a principal in an attempted
homicide, and two (2) degrees lower arrest menor is the penalty to be meted out
upon an accessories in an attempted homicide.
The penalty of prision mayor shall be imposed upon a principal in an attempted
murder, and two (2) degrees lower is arresto mayor is the penalty of an accessories
in an attempted murder.
Illustrating Article 50-57, the penalty for the three stages against the offenders:
Consummated Frustrated Attempted
Principal as provided less 1 degree less 2 degrees
Accomplice less 1 degree less 2 degrees less 3 degrees
Accessory less 2 degrees less 3 degrees less 4 degress
Additional deductions from the penalties are provided in Article 250 of one
degree for frustrated and attempted parricide, murder or homicide because of the
gravity of the penalty prescribed.

Article 58. Additional penalty to be imposed upon certain accessories. – Those

accessories faling within the terms of paragraph 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 be guilty of a grave
felony, and that of absolute temporarydisqualification if he shall be guilty of a less
grave felony.
Public officers who help the author of a crime by misuing their office and
duties shall suffer the additional penalties of:
1. Absolute perpetual disqualification, if the principal offender is guilty of a grave
felony.

2. Absolute temporary disqualification, if the principal offender is guilty of less

grave felony.
Why does this article limit its provisions to grave or less grave felonies?
Because it is not possible to have accessories liable for light felonies (Art. 16 RPC)

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This article applies only to public officers who abused their public functions.
The accessories refered to in Article 58 are only those faling within the term
of paragraph 3 of Article 19.
The additional penalty prescribed in this article will be imposed only on those
accessories whose participation in the crime is characterized by the misuse of public
office or authority. This is so because Article 58 says “who should act with abuse of
their public functions.”

Article 59. Penalty to be imposed in case of 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 act 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 of 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 of ranging from 200 to 500 pesos.
This Article provides for the penalty for impossible, which is arresto menor or
a fine ranging from 200 to 500 pesos.
Penalty to be imposed in case of 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
act 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 of
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 of ranging from 200 to 500 pesos.
The court must take into consideration the social danger and the degree of
criminality shown by the offender.

Article 60. Exceptions to the rules established in Articles 50 to 57. – The provisions
contained in Article 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 imposed upon accomplices or accessories.

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Article 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 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.

In the application of the rules in Article 61, it is to be understood that each

penalty prescribed by law for every felony is considered a degree. Thus, when the
penalty imposed comprises of 2 periods, the 2-period penalty is a degree and the
penalty next lower should be composed of 2 periods also. For instance, the penalty
for direct assault is prison correcional in its medium and maximum periods. The
penalty next lower in degree is arresto mayor maximum to prison correccional
minimum.
The rules for graduating penalties under Article 61 are as follows:

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 a. When the penalty prescribed is single and indivisible the next lower
in degree is the penalty immediately following. Thus, reclusion
temporal is lower in degree than reclusion perpetua.

b. For 2 indivisible penalties, the next lower is that immediately

following the minimum so for reclusion perpetua to death, the
penalty next lower is reclusion temporal.

c. When the penalty prescribed is composed of 1 or more divisible

penalties to be imposed to their full extend, the penalty next lower
shall be that immediately following the lesser, e.g., prision mayor to
reclusion temporal, the penalty next lower is prision correccional.

d. In case of one or more indivisible penalties and the maximum of

divisible penalty, the next lower in degree shall be composed of the
medium and minimum periods of that divisible penalty and the
maximum periods of that immediately following. Thus, one degree
lower than reclusion temporal maximum to (now) reclusion perpetua
is prision mayor mamimum to reclusion temporal medium. (People
vs. Paredes, G.R. No. 115217, November 21, 1996)

e. The penalty for brigandage under Article 306 is prision mayor in its
medium period to reclusion temporal in its minimum period, a
penalty composed of 3 periods corresponding to different divisible
penalties. The penalty next lower shall likewise be composed of 3
periods thus:

Maximum - prision mayor, minimum

Medium – prision correccional, maximum
Minimum – prision correcional, medium
The summary of simplified rules are:
1. If the prescribed penalty is composed of 3 periods, one degree lower is three
period down the scale;
2. If the prescribed penalty is composded of two periods, one degree lower is
also two periods down the scale;
3. If the prescribed penalty is composed of only one period, one degree lower is
the next period down the scale;
4. In fixing the proper period of penalty, the penalty next lower in degree shall
be determined after the mitigating and aggravating circumstances are
considered. (Boado)

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Article 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 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, is within a period of ten years from the date of his release or last
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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.

The article provides for the treatment of the modifying circumstances

attendant in a crime.
The different kinds of modifying circumstances referred to here are:

(a) Aggravating circumstances which in themselves constitute a crime

(paragraph 1) such as “by means of fire” or arson.

(b) Aggravating circumstances included by law in defining a crime and

prescribing the penalty (paragraph 1), e.g., laying hands upon a person in
authority in direct assault.
(c) Aggravating circumstances inherent in the crime (paragraph 2), e.g, evident
premeditation in robbery.
These circumstances shall no longer be considered in imposing the penalty
because in (a) and (b) they were already considered by the law in prescribing the
penalty for the offense and in (c) the circumstance is absorbed by the crime
committed.
Those pertaining to the moral attributes of the offender or his relations with
the offended or any other personal caused (paragraph 3) – only the offender having
such attribute shall be affected, as for instance, only the one blinded by passion or
obfuscation shall have his liability mitigated. In rape, the relationship of one of the
offender will be considered against him only and not against the other offenders.
Habitual delinquency will be considered against the one to whom it pertains and will
not aggravate the crime of the other offenders.
The provision inserted by R.A. 7659 and renumbered Article 62(1)(a) of
syndicated or organized crime group is the deed of a group of persons, at least 2 in
number, which is organized for the purpose of committing crimes for gain. This
special aggravating circumstance required proof that the group is organized for the
general purpose of committing crimes for gain, which is the essence of syndicated /
organized crime group. (People vs. Alberca, G.R. No. 117106, June 26, 1996) (Boado)
The phrase “same rule” in no. 2 of Article 62 should refer to paragraph 1 of no.
1 without regard to no. 1(a) because the latter was a mere insertion. Thus, “the same
rule” should mean aggravating circumstances which are inherent in the crime to such
degree that it shall of necessity accompany the offense shall no longer increase the
penalty therefor.
Example 1
X gave money to Y and induced the latter to kill Z. If Y killed Z with treachery,
the aggravating circumstance of treachery cannot be appreciated against X if the

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latter has no knowledge about the treachery, although X is liable for homicide in the
absence of any other qualifying circumstance.
On the other hand, if there was conspiracy between X and Y to kill Z by means
of treachery, with or without X’s knowledge that the killing was carried out by means
of treachery, both are guilty of murder, because the act of one is the act of all (People
v. Pareja, 30 SCRA 693).
Example 2
X and Y agreed to kill Z. X acted because of passion and obfuscation and
vindication of a grave offense. Under par. 3 of Art. 62, only X is entitled to the two
mitigating circumstances because they arose from his moral attributes. Y is not
entitled to these two mitigating circumstances.

The simplified rules in determining Habitual Delinquency:

1. There must be present at least three of the “habitual delinquency crimes” the
preceding two of which gthe accused was convicted by final judgment;

2. The interval of time between the first conviction or release and the second
conviction must not exceed 10 years, with the same limitation on the interval
between the second conviction or release and the third conviction, even if
more than 10 years have elapsed between the first conviction or release and
the third conviction;

3. The second felony must have been committed by the accused after his
conviction of or release in the first felony, and the third felony must have been
committed by the accused after his conviction of or release in the second
felony.

A habitual delinquent may be at the same time a recidivist, or vice versa. This
is so if three crimes, like robbery, theft and estafa, are involved and being embraced
in the same title of this Code. If not, a habitual delinquent may not be a recidivist.

Article 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.

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 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
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.

There are two classes of penalties in this article each with its own rules:
a. Single indivisible penalty under paragraph 1 – (reclusion perpetua OR
death)
b. Two indivisible penalties under paragraph 2 – (reclusion perpetua TO
death)
Under the 1st paragraph modifying circumstances are not considered. No
matter how many aggravating or mitigating circumstances are present, the penalty
shall not be affected especially since indivisible penalties have no periods.
The mitigating circumstances referred to in Article 63 and 64 are ordinary
mitigating circumstances because privileged mitigating circumstances are always
considered whether the penalty imposed is divisible or indivisible.
The penalty cannot be lowered by a degree no matter how many mitigating
circumstances are present because modifying circumstances are not to be
considered.
Since reclusion perpetua is an indivisible penalty, it has no minimum, medium
or maximum period. And where the law prescribes a single indivisible penalty, it shall
be applied, regardless of any mitigating or aggravating circumstances that may have
attended the commission of the crime.

Article 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.

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 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 in 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 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.

The rules when the penalty imposable is a divisible penalty are:

Modifying Circumstances Proper Period
a. No aggravating and no a. Medium
Mitigating
b. Mitigating only b. Minimum
c. Aggravating only c. Maximum
d. Some of both circumstances d. Offset and apply the foregoing
Present
e. Two mitigating and no e. One degree lower
Aggravating
The mitigating circumstances referred to here are ordinary mitigating because
privileged mitigating is always considered first before applying the above rules.
Article 64 is important in the application of Indeterminate Sentence Law
because the modifying circumstances are first considered in the determination of
the maximum penalty. On the basis of the maximum penalty imposed, the minimum
penalty shall be computed without anyone considering this article.
The court shall impose the penalty next lower to that prescribed by the Code
in the period that it may deem applicable depending upon the number and nature
of the mitigating circumstances pursuant to paragraph 5 of this Article. For instance,
in the crime of homicide which is punishable with reclusion temporal, where there
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are 2 mitigating with no aggravating circumstances, the imposable penalty is one
degree lower or prision mayor. Applying the Indeterminate Sentence Law, the
convict must be meted the penalty with the minimum within the range of prision
correccional and maximum thereof within the range of prision mayor. (People vs.
Germina, G.R. No. 120881, May 19, 1998)
1. Courts cannot:

a. Lower the penalty by degree when there is an aggravating

circumstance event if the net effect of the offsetting is 2 or more
mitigating circumstances left (paragraph 5);
b. Impose a greater penalty than that prescribed by law no matter how
many aggravating circumstances are present.

2. Article 64 does not apply to quasi-offenses because Article 365, paragraph

5 provides that in the imposition of the penalties for imprudence, the
courts shall exercise their sound discretion without regard to the rules
prescribed in Article 64. Modifying circumstances substitute for the
discretion of the judge in the imposition of the penalties, hence when these
circumstances are not applicable, the judge is given leeway to exercise his
sound discretion. Also, modifying circumstances inherent in intentional
felonies.
The significance of 1 day in the beginning of the period of penalty:
a. It separates 1 degree from the other. For instance, prision
correccional (6 months and 1 day to 6 years) is separated from
prision mayor (6 years and 1 day to 12 years) by 1 day. The 1-day
difference determines whether a convict shall be eligible for
probation or not; whether subsidiary penalty can be imposed or not;
etc.

b. It separates reclusion temporal from reclusion perpetua which

determines whether the rules in Article 63 or Article 64 will be
applied in determining the proper period of penalty in view of the
presence or absence of the modifying circumstances. (Boado)

Article 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.

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 This article treats of penalties which are divisible but do not consist of three
periods, hence, they must be divided into three portions, each portion to form the
minimum, medium and the maximum periods

Example

The penalty of prision correccional medium to maximum periods for direct

assault (Article 148 RPC)

Under Article 76, the range of the penalty is from 2 years, 4 months, and 1 day
to 6 years. Following the formula, the steps are:

1. Duration of the penalty – 6 years less 2 years, 4 months and 1 day = 3 years
and 8 months.
2. Duratoon of each period – 3 years, 8 months -- = 1 year, 2 months, 20 days.
3. Minimum period – 2 years, 4 months, 1 day (minimum period) + 1 year, 2
months and 20 days = 3 years, 6 months and 20 days (maximum of period.
4. Medium period – 3 years, 6 months and 20 days (1 day) + 1 year, 2 months
and 20 days = 4 years, 8 months and 40 days maximum of period) or 4
years, months and 10 days.
5. Maximum period – 4 years, 9 months asnd 10 days (1 day) + 1 year, 2
months and 20 days = 5 years, 11 months and 30 days maximum of period
or 6 years.

Article 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 the wealth or means of the culprit.

The above article provides that the court can fix any amount of the fine within
the limits established by law:

a. Presence of mitigating and aggravating circumstances. In one case, the

Supreme Court reduced the fine of P10,000.00 to only P2,000.00 in view of
the presence of 3 mitigating circumstances.
b. More particularly, the wealth or means of culprit. Thus, the fine to be
imposed may be reduced if, notwithstanding the presence of aggravating
circumstance, the culprit cannot afford the correct fine.
It should be noted that when the law does not fix the minimum of the fine, the
determination of the amount of the fine to be imposed upon the accused is left to
the sound discretion of the court, provided it shall not exceed the maximum
authorized by law.

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Article 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.

The circumstance provided under No. 4 of Article 12, refers to the exempting
circumstance of accident. The condition necessary to exempt from liability under this
legal provision are the following:

1. That the act causing the injury be lawful, that is, permitted not only by law
but also by regulations;
2. That it be performed with due care;
3. That the injury be caused by mere accident,i.e., by unforeseen event;
4. That there be no fault or intention to cause the injury.

Article 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.

This Article has been modified by Arts. 6 and 20 of R.A. No. 9344, otherwise
known as “The Juvenile Justice and Welfare System Act.”

“SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years

of age or under at the time of the commission of the offense shall be exempt from
criminal liability. However, the child shall be subjected to an intervention program
pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment, in which case, such child shall
be subjected to the appropriate proceedings in accordance with this Act.

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 The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with existing
laws.”

“SEC. 20. Children Below the Age of Criminal Responsibility. - If it has been
determined that the child taken into custody is fifteen (15) years old or below, the
authority which will have an initial contact with the child has the duty to immediately
release the child to the custody of his/her parents or guardian, or in the absence
thereof, the child's nearest relative. Said authority shall give notice to the local social
welfare and development officer who will determine the appropriate programs in
consultation with the child and to the person having custody over the child. If the
parents, guardians or nearest relatives cannot be located, or if they refuse to take
custody, the child may be released to any of the following: a duly registered
nongovernmental or religious organization; a barangay official or a member of the
Barangay Council for the Protection of Children (BCPC); a local social welfare and
development officer; or when and where appropriate, the DSWD. If the child
referred to herein has been found by the Local Social Welfare and Development
Office to be abandoned, neglected or abused by his parents, or in the event that the
parents will not comply with the prevention program, the proper petition for
involuntary commitment shall be filed by the DSWD or the Local Social Welfare and
Development Office pursuant to Presidential Decree No. 603, otherwise ,known as
"The Child and Youth Welfare Code."

Under R.A. 9344, the age of exemption of minors from criminal prosecution,
has been increased to those who are 15 years old and under, hence they are
absolutely exempt from criminal liability.
For over 15 but under 18 – they shall be criminally liable only if they acted with
discernment. Pursuant to this article, the penalty shall be 1 degree lower but always
in the proper period.
The age is reckoned at the time of the commission of the offense to be entitled
to the above benefits. Thus, considering the gravity of the offense and in the interest
of justice, the Supreme Court admitted the birth certificate of the accused to prove
that mitigating circumstance of minority although said birth certificates were not
presented or offered in the trial court. (People vs. Regalario, G.R. No. 101451, March
23, 1993)

Article 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

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may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking.

The penalty may be reduced by one or two degrees if majority of the

conditions required to justify or exempt from criminal liability are present. In such
case, the incomplete justification or exemption is a privileged mitigating
circumstance.
If there is present less than a majority of the conditions, there will only be an
ordinary mitigating circumstance, which will lower the penalty to the minimum
period.
Penalty lower by one or two degrees shall be imposed if the deed is not wholly
excusable. If majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees to prision correccional. And when
incomplete self-defense is coupled by two more mitigating circumstances, the
penalty under Article 64(5) may further be reduced by one degree, that is, arresto
mayor, because of the presence of 2 mitigating circumstances and no aggravating
circumstance. (People vs. Narvaez, 121 SCRA)
Articles 11 and 12 in relation to Articles 69 and 13(1):
(a) All requisites present – Justifying/Exempting – Article 11/12
(b) 2 or more present – Privileged mitigating – Article 69
(c) 1 only present – Ordinary mitigating – Article 13(1)
But, in defense of self, relatives or strangers, unlawful aggression must always
be present otherwise there is nothing to defend. Also, if there are only two requisites
prescribed by law to justify or exempt from liability, the presence of one is sufficient
to fall under Article 69 as privileged mitigating circumstance. Incomplete justification
is a special or privileged mitigating circumstance, which, not only cannot be offset by
aggravating circumstances but also reduces the penalty by 1 or 2 degrees than that
prescribed by law.

Article 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.

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

When the accused has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so allow.
Article 70 provides that in applying the 3-fold rule, the duration of pena
perpetua shall be computed at 30 years. The imputation of the 30-year duration is
only to serve as a basis for determining the convict’s eligibility for pardon unless he
is deemed unworthy of such or for the application of the 3-fold rule in the service of
multiple penalties. (People vs. Tena, October 1992)

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 When the culprit is given multiple sentences, the same must be
simultaneously if the nature of the penalties permits it. Otherwise, the penalties shall
be served successively.
Simultaneous service is the rule, whereas successive service is the exception.
The penalty is to be served in the order herein prescribed observing the
following limitations:
a. The maximum duration of the convict’s sentence shall not be more than 3-
fold the length of time corresponding to the most severe of the penalties
imposed. No other penalty to which he may be liable shall be inflicted after
the total of those imposed equals the same maximum period.

b. Such maximum period shall in no case exceed 40 years.

Steps to determine the duration of sentence to be served:
a. Get the most severe penalty (from Article 70)
b. Multiply by 3
c. Add the duration of the different sentences
d. Compare the result of “b” and “c”
e. Accused to serve the lesser period which shall not exceed 40 years
This article deals with service of sentence, not with imposition, hence, for the
prison director to follow, not for the courts. The courts should impose the correct
penalties even if these will amount to more than the lifetime of the prisoner. The
reason is that “should a pardon be granted as to the penalty or penalties first
imposed” (Article 70, paragraph 2), the remaining sentences shall be served in the
order of severity.
Consequently, all the sentences on the prisoner imposed by any court for
whatever crimes whenever filed should be covered by this rule.
If the penalties imposed are all equal, the period thereof shall be considered
as the most when applying the 3-fold rule.
When the death sentence is executed, all the death sentences when more
than one is meted are deemed simultaneously served.
When the most severe penalty is reclusion perpetua or life imprisonment
(pena perpetual), the imputed duration shall be 30 years, thus 30 multiplied by 3 is
90 years. The culprit shall serve not 90 but 40 years because of express limitation in
Article 70.
The order of the respective severity of the penalties shall be followed so that
they may be executed successively.

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Example 1
The convict was sentenced on October 28, 1905 to imprisonment for 6 months
for one offense, and on November 11, 1905, he was sentenced to imprisonment for
4 months and 1 day for another offense. It was held that he should serve the two
terms successively and the time of the second offense did not commence to run until
the expiration of the first.
Example 2
Where the accused was sentenced to three distinct terms of imprisonment for
the offenses of frustrated homicide, trespass, and less serious physical injuries, the
three penalties should be served successively in the order of their severity.

THE THREE FOLD RULE:

According to the three-fold rule, the maximum duration of the convict’s
sentence shall not be more than three times the length of time corresponding to the
most severe of the penalties imposed upon him.
Example 1
The accused for habeas corpus who had been sentenced in six (6) different
cases of estafa, in each of which he was penalized with 3 months and 11 days of
arresto mayor, cannot be made to suffer more than 3 months and 11 days multiplied
by 3 or 9 months and 33 days.
Hence, the accused who was in jail for one year and three months remained
there beyond the period aloowed under the three-fold rule (Aspra v. Director of
Prisons, 85 Phil 737).
Example 2
A person is sentenced to suffer – 14 years, 8 months and 1 day for homicide;
17 years, 4 months and 1 day in another case; 14 years and 8 months in the third
case; and in a case of fursutrated homicide, he is sentenced to 12 years, or a total of
59 years, 8 months and 2 days.
The most severe of those penalties is 17 years, 4 months and 1 day. Three
times that penalty is 52 years and 3 days. But since the law has limited the duration
of the maximum term of imprisonment to not more than 40 years, the accused will
have to suffer 40 years only. (People v. Alisub, 69 Phil 362)

The three fold rule applies only when the convict has to serve at least four sentences:
If only two or three penalties corresponding to different crimes committed by
the convict are imposed, it is hardly possible to apply the three-fold rule.

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Example 1
A was convicted of three crimes of homicide for each of which he was
sentenced to 12 years and 1 day of reclusion temporal. Adding all the three penalties
you will find a total of 36 years and 3 days; or multiplying one of the penalites, each
of 12 years and 1 day, by 3 you will find the same result.
Example 2
Suppose, for the first homicide a was sentenced to 12 years and 1 day; for the
second, 14 years, 8 months and 1 day; and the third, 17 years, 4 months and 1 day;
in this case, the total of all penalties is 44 years and 3 day . On the other hand, 17
years, 4 months and 1 day multiply by 3 equals to 52 years and 3 days. The three-
fold rule does not apply, because the total of all the penalties is less than the most
serve multiplied by 3.
Example 3
But if A was convicted of four crimes of homicide, for each of which he was
sentenced to 12 years and 1 day or to different penalties, the three-fold rule can
properly be applied.
Example 4
If A was sentenced to 1 year for theft, 2 years for robbery, 1 year for estafa, 4
months and 1 day for physical injuries, and 4 months for slander, the total of all the
penalties being only 4 years, 8 months and 1 day, which is less than 2 years multiplied
by 3 or 6 years, the three-fold rule does not apply. The three-fold rule applies only
when the total of all the penalties imposed exceeds the most severe multiplied by 3.
All the penalties, even if by different courts at different times, cannot exceed
three-fold the most severe.
This rule, for the reason stated, should be followed irrespective of the fact that
the different offenses are charged in several informations, or are included in a single
prosecuton, or the several cases are tried before the same or in different courts.
(People v. Geralde, 50 Phil 823).

Article 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:

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 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.

The penalties in Book II of the Code are understood to be: (a) the principal
penalties imposed; (b) upon the principal offender; (c) for the consummated felony.
(Article 46) Hence, there is a need to provide the rules when the crime is not
consummated, and when the offenders include accomplices and / or accessories.
Article 71 provides the scale from which the penalty prescribed in the rules in
Article 61 shall be taken. Article 61 prescribes the rules for applying the penalty next
lower in degree in Articles 50 to 57.
According to Article 71, the penalty next lower in degree than arresto mayor
is destierro and not arresto menor, whereas in Article 70, destierro follows arresto
menor in the the degree of severity.

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Article 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.

What is the rule in the payment of civil liabilities in case a person is found guilty of
two or more offenses?

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.

The above article applies when the accused who is found guilty of two or more
offenses is required to pay the corresponding civil liabilities resulting from different
offenses. The dates of finality of judgment are the basis of the order of payment of
civil liabilities while under Art. 70, criminal liability is satisfied by successive service
of sentences in the order of their respective severity under Art. 70.

Section Three. - Provisions common in the last two preceding sections

Article 73. Presumption in regard to the imposition of accessory penalties. -

Whenever the courts shall impose a penalty which, by provision of law, 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.

Under this Article, imposition of accessory penalties under Articles 40, 41, 42,
43, 44 and 45 of this Ciode, is deemed imposed by the courts without being expressly
provided in the judgment. However, since subsidiary imprisonment is not an
accessory penalty, the judgment must expressly provide that the accused shall
undergo subsidiary imprisonment in case of insolvency.

Article 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.

Under sec. 4(2), Art. VIII of the 1987 Philippine Constitution, the penalty of
death must be specifically imposed by law upon majority votes of the Justices of the
Supreme Court; hence, under Art. 74, if the law imposes a penalty higher than
reclusion perpetua without spefically stating the higher penalty is death, the penalty
shall only be reclusion perpetua with the duration of 20 years and 1 day to 40 years,

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with the accessory penalty of perpetual absolute disqualification and civil
interdiction under Art. 40.

Article 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.

Fines are reduced by one or two degrees when the felony is attempted or
frustrated or when imposed upon the accessory or the accomplice. For each degree,
¼ of the maximum amount is taken. Then penalty as computed shall in no case be
lower than the minimum prescribed by law. For instance, if the fine prescribed by aw
is P50 to P200, ¼ of the maximum amount of P200 is taken, that is, P50. If the penalty
is to be reduced by 2 degrees, the penalty is computed as follows:
Step 1 – P200 divided by 4 = P50
Step 2 – P50 multiplied by 2 degrees = P100
Step 3 – P200 minus P100 = P100
The penalty as lowered by 2 degrees therefore is P50 to P100.

Article 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:

The above article shows the manner divisible penalties are divided into three
periods.

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 TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE TIME
INCLUDED IN EACH OF THEIR PERIODS

Penalties Time Time Time Time

included in the included in its included in its
included in its
penalty in its minimum medium
maximum
entirety period period
From 14 years,
From 12 years From 17 years,
From 12 years 8 months and
Reclusion and 1 day to 4 months and
and 1 day to 1 day to 17
temporal 14 years and 8 1 day to 20
20 years. years and 4
months. years.
months.
Prision mayor,
absolute
disqualificatio From 6 years From 6 years From 8 years From 10 years
n and special and 1 day to and 1 day to 8 and 1 day to and 1 day to
temporary 12 years. years. 10 years. 12 years.
disqualificatio
n
From 2 years,
Prision From 6 From 4 years,
From 6 4 months and
correccional, months and 1 2 months and
months and 1 1 day to 4
suspension day to 2 years 1 day to 6
day to 6 years. years and 2
and destierro and 4 months. years.
months.
From 1 month From 2 months From 4 months
From 1 to 2
Arresto mayor and 1 day to and 1 day to 4 and 1 day to 6
months.
months. months. months.
From 1 to 30 From 1 to 10 From 11 to 20 From 21 to 30
Arresto menor
days. days. days. days.

Article 76 is the law on duration of divisible penalties – that divisible penalties

shall be considered as divided into 3 periods: the minimum, medium and maximum.
The duration of the period of a divisible penalty is computed as follows:
Using as an example prision mayor with a period of 6 years and 1 day to 12
years:
Step 1 – deduct the beginning of the period from the end of the period.

12 years minus 6 years = 6 years

Step 2 – Divide the difference by 3 corresponding to the 3 period of

minimum, medium and maximum.
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 6 years divided by 3 = 2 years

Step 3 – Add the quotient in step 2 to the beginning of each period

starting with minimum.
6 years and 1 day + 2 years = 8 years.

Minimum – 6 years and 1 day to 8 years

Medium – 8 years and 1 day to 10 years
Maximum – 10 years and 1 day to 12 years
Article 65 applies when the penalty is divisible but is not composed of 3
periods. For instance, robbery in an uninhabited place is penalized by prision
correccional in its medium and maximum periods (Article 302). The duration of this
penalty is 2 year, 4 months and 1 day to 6 years.
Harmonizing Articles 65 and 76, the 2-period penalty shall be converted into
3-period penalty to comply with the legal duration of the divisible penalty. The
conversion steps are:
a. Get the duration of the penalty
6 years minus 2 years and 4 months = 3 years and 8 months or 44 months
b. Divide the duration of the penalty by 3 periods to get the duration of each.
c. Add the quotient to the minimum of each period. The lowest is the
minimum period, the second the medium, and the highest the maximum.
Thus,
Minimum – 2 years 4 months 1 day to 3 years 6 months 10 days
Medium – 3 years 6 months 11 days to 4 years 8 months 20 days
Maximum – 4 years 8 months 21 days to 6 years

Article 77. When the penalty is a complex one 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.

WHAT IS A COMPLEX PENALTY?

A complex penalty is one which is composed of 3 distinct penalties each
forming a period, the lightest of which shall be minimum, the next shall be medium

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and the most severe the maximum. (Not to be confused with complex crime under
Article 48)
In People vs. Simon, the Court corrected the error in R.A. 7659 which imposed
in Section 20 a complex penalty composed of 4 periods – prision correccional to
reclusion perpetua – by construing the same to be prision correccional to reclusion
temporal.
The penalty of reclusion temporal in its maximum period to reclusion perpetua
(the penalty for murder prior to R.A. 7659) is a complex and divisible penalty
consisting of 3 periods. (People vs. Lian, 255 SCRA)
Example: Reclusion temporal to death (Art. 114)
Maximum --- Death
Medium – Reclusion perpetua (this is between reclusion temporal and death)
Minimum – Reclusion temporal
The 2nd paragraph of Article 77 which deals with complex penalties, provides
that “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,” that is, those in Articles 61 and 76. Hence, where the penalty
provided by Section 1 of P.D. 1866, as amended, is reclusion temporal in its maximum
period to reclusion perpetua, the minimum period thereof is 17 years, 4 months and
1 day to 20 years and the maximum period is reclusion perpetua.

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 Chapter Five
EXECUTION AND SERVICE OF PENALTIES

Section One. - General Provisions

Article 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.

This article provides that “no penalty shall be executed except by virtue of a
final judgment.

The judgment must be final before it can be executed, because the may still
file a motion for reconsideration, motion for new trial, or even appeal the judgment
of the court within 15 days from the date of its promulgation.

Article 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 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.

If the accused becomes insane during his trial, the proceedings shall be
suspended and he shall be ordered confined in a hospital for medical treatment until
he recovers his sanity.

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 If he becomes insane after final judgment or while serving sentence, the
execution or service thereof be suspended with regard to his personal penalty, but
his pecuniary or civil liability, such as restitution, reparation, indemnification, fine
and costs can be executed.

Article 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 hereinbelow 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 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.

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 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 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 five hundred and eighty-eight
of the Administrative Code.

The provisions of Article 80 of the RPC have been repealed by chapter three
of PD No. 603, as amended (The Child and Youth Welfare Code), and further
amended by the provisions of RA 9344 (Juvenile Justice and Welfare Act of 2006).

“SEC. 38. Automatic Suspension of Sentence. - Once the child who is under
eighteen (18) years of age at the time of the commission of the offense is found guilty
of the offense charged, the court shall determine and ascertain any civil liability
which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen years (18) of age or more at the time of the
pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances

of the child, the court shall impose the appropriate disposition measures as provided
in the Supreme Court Rule on Juveniles in Conflict with the Law.

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 SEC. 39. Discharge of the Child in Conflict with the Law. - Upon the
recommendation of the social worker who has custody of the child, the court shall
dismiss the case against the child whose sentence has been suspended and against
whom disposition measures have been issued, and shall order the final discharge of
the child if it finds that the objective of the disposition measures have been fulfilled.

The discharge of the child in conflict with the law shall not affect the civil
liability resulting from the commission of the offense, which shall be enforced in
accordance with law.

SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court
finds that the objective of the disposition measures imposed upon the child in
conflict with the law have not been fulfilled, or if the child in conflict with the law has
willfully failed to comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age
while under suspended sentence, the court shall determine whether to discharge
the child in accordance with this Act, to order execution of sentence, or to extend
the suspended sentence for a certain specified period or until the child reaches the
maximum age of twenty-one (21) years.

SEC. 41. Credit in Service of Sentence. - The child in conflict with the law shall
be credited in the services of his/her sentence with the full time spent in actual
commitment and detention under this Act.

SEC. 42. Probation as an Alternative to Imprisonment. - The court may, after

it shall have convicted and sentenced a child in conflict with the law, and upon
application at any time, place the child on probation in lieu of service of his/her
sentence taking into account the best interest of the child. For this purpose, Section
4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976",
is hereby amended accordingly.

SEC. 51. Confinement of Convicted Children in Agricultural Camps and other

Training Facilities. - A child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other training facilities that may
be established, maintained, supervised and controlled by the BUCOR, in coordination
with the DSWD.

SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. -
Upon effectivity of this Act, cases of children fifteen (15) years old and below at the
time of the commission of the crime shall immediately be dismissed and the child
shall be referred to the appropriate local social welfare and development officer.
Such officer, upon thorough assessment of the child, shall determine whether to
release the child to the custody of his/her parents, or refer the child to prevention

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programs as provided under this Act. Those with suspended sentences and
undergoing rehabilitation at the youth rehabilitation center shall likewise be
released, unless it is contrary to the best interest of the child.

SEC. 65. Children Detained Pending Dial. - If the child is detained pending trial,
the Family Court shall also determine whether or not continued detention is
necessary and, if not, determine appropriate alternatives for detention.

If detention is necessary and he/she is detained with adults, the court shall
immediately order the transfer of the child to a youth detention home.

SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending
Diversion and Court Proceedings. - If a child reaches the age of eighteen (18) years
pending diversion and court proceedings, the appropriate diversion authority in
consultation with the local social welfare and development officer or the Family
Court in consultation with the Social Services and Counseling Division (SSCD) of the
Supreme Court, as the case may be, shall determine the appropriate disposition. In
case the appropriate court executes the judgment of conviction, and unless the child
in conflict the law has already availed of probation under Presidential Decree No.
603 or other similar laws, the child may apply for probation if qualified under the
provisions of the Probation Law.

SEC. 68. Children Who Have Been Convicted and are Serving Sentence. -
Persons who have been convicted and are serving sentence at the time of the
effectivity of this Act, and who were below the age of eighteen (18) years at the time
the commission of the offense for which they were convicted and are serving
sentence, shall likewise benefit from the retroactive application of this Act. They shall
be entitled to appropriate dispositions provided under this Act and their sentences
shall be adjusted accordingly. They shall be immediately released if they are so
qualified under this Act or other applicable law.”

The suspension of sentence lasts only until the child in conflict with the law
reaches the maximum age of twenty-one (21) years. Section 40 of the law and
Section 48 of the Rule are clear on the matter.

Article 81 – When and how the death penalty is to be executed. The death sentence
shall be executed with preference to any other penalty and shall consist in putting
the persons under sentehce of death by lethal injection. The death sentence shall
be executed under the authority of the Director of Bureau of Corrections,
endeavouring so far as possible to mitigate the sufferings of the person under
sentence during the lethal injection as well as during the proceedings prior to the
execution.

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 The Director of the Bureau of Corrections shall take steps to ensure that the
lethal injection to be administered is sufficient to cause the instantanelous death
of the convict.
Pursuant to this, all personnel involved in the administration of lethal
injection shall be trained prior to the performance of such task.
The authorized physician of the Bureau of Corrections, after thorough
examination shall officially make a pronouncement of the convict’s death and shall
certify thereto in the records of the Bureau of Corrections.
The death sentence shall be carried out not earlier than one (1) year nor later
than eighteen (18) months after the judgment has become final and executor
without prejudice to the exercise by the President of his executive clemency
powers at all times.

Article 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.

Article 83. Suspension of the execution of the death sentence. – The death
sentence shall not be inflicted upon a woman within one (1) year after delivery,
nor upon any person over seventy (70) years of age. In this last case, the death
sentence shall be commuted to the penalty of reclusion perpetua with the
accessory penalty provided in Article 40.
In all cases wherethe death sentence has become final, the records of the
case shall be forwarded immediately by the Supreme Court to the Office of the
President for possible exercise of the pardoning power.
Death sentence shall be suspended in the following:
1. Woman, while pregnant;
2. Woman, within one year after delivery;
3. Person over 70 years of age;
4. Convict who becomes insane after final judgment of death has been
pronounced.

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Distinguish from Article 47

Article 47 provides for cases in which death penalty is NOT to be imposed.

1. When the guilty person is more than 70 years of age;

2. When unpon appeal or automatic review of the case by the Supreme Court,
the required majority vote is not obtained for imposing death penalty; and
3. When the convict is a minor under 18 years of age.

Article 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, 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.

Persons who may witness the execution

1. Priest assisting the offender.

2. Offender’s lawyers.
3. Offender’s relatives, not exceeding six, if so requested.
4. Physician, and
5. Necessary personnel of penal establishment

Article 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.

In view of the enactment of RA 9346, the death penalty may not be imposed.
Thus, Articles 81 to 85 of the Revised Penal Code have no application.

Article 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

211
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.

Where the penalties of Reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor shall be served?

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.

Article 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.

What is the nature of the penalty of 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.

If the convict enters the prohibited area, he commits evasion of sentence

(People vs. de Jesus, 80 Phil. 748)

Destierro is an exceptional penalty, prescribed as a principal penalty only in

two cases (Articles 247 and 334) and as an additional penalty in one case (Art. 248).
(Uy Chin vs. Dinglasan)

Article 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 and other reasons which may seem
satisfactory to it.

What is the rule in the service of sentence eof Arresto Menor?

The penalty of arresto menor shall be served:

1. In the municipal jail, or

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 2. 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 and other reasons which may seem satisfactory to it.

Article 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.
Causes of total extinction:
a. Death of the convict;
b. Service of the sentence;
c. Amnesty;
d. Absolute pardon;
e. Prescription of crime;
f. Prescription of penalty;
g. Marriage of the offended woman under Art. 266-C;
h. Express repeal of penal law (act decriminalized)
Partial extinction:
a. Conditional pardon;
b. Commutation of sentence;
c. Good conduct allowances;
d. Parole under the Indeterminate Sentence Law;
e. Probation under PD 968;
f. Implied repeal or amendment of penal law lowering the penalty;
Death of convict extinguishes criminal liability at any stage of the proceeding;
civil liability if death occurs before final judgment. The reason is that the penalty
requires personal service of sentence. If death occurs there will be nobody to serve
the penalty for the crime. “Final” judgment refers to executory judgment. (People
vs. Bayotas, G.R. No. 102007, September 2, 1994.)

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By the Death of the Convict.
The death of the convict, whether before or after final judgment, extinguishes
criminal liability, because one of the juridical conditions of penalty is that it is
personal.
Civil liability is extinguished only when death occurs before final judgment.
The death of the convict also extinguishes pecuniary penalties only when the
death of the offenders occurs before final judgment. Hence, if the offender dies after
final judgment, the pecuniary penalties are not extinguished.
Where a person is charged with homicide, for instance, the civil liability for
indemnity is based solely on the finding of guilt. If he is acquitted because of self-
defense, the heirs of the deceased have no right to indemnity. Should the offender
dies before final judgment, their right of indemnity is likewise extinguished as there
is no basis for the civil liability. Civil liability exists only when the accused is convicted
by final judgment.
Effect of the death of the accused pending appeal on his criminal and civil liability.
General Rule –
Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely on the offense committed.
Exception –
The claim for civil liability survives notwithstanding the death of the accused,
if the same may also be predicated on a source of obligation other than delict, such
as law, contract, quasi-contracts and quasi-delicts.
Examples
(a) The claim for civil liability based on law may also be made – in the offense of
physical injuries, since Article 33 of the Civil Code establishes a civil action for
damages on account of physical injuries, entirely separate and distinct from
the criminal action. (Belamala v. Polinar, 21 SCRA 700)

(b) Claim for civil liability based on contract may also be made – in the offense of
estafa when the civil liability springs neither solely nor originally from the
crime itself but from a civil contract of purchase and sale as when the accused
had swindled the vendees of the property subject matter of the contract of
sale (Torrijos vs. Court of Appeals, 67 SCRA 394).
Where action for recovery of damages must be filed, when civil liability survives.
If the private offended party, upon extinction, of the civil liability ex delicto,
desires to recover damages from the same act or omission complained of, he must,
subject to Section 1, Rule 111 of the Revised Rules of Criminal Procedure, file

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separate civil action, this time predicated not on the felony previously charged but
on other sources of obligation. The source of obligation upon which the separate civil
action is premised determines against whom the same shall be enforced. Thus:
If the same act or omission complained of also arises from quasi-delict or may,
by provision of law, result in an injury to person or property (real or personal), the
separate civil action must be filed against the executor or administrator of the estate
of the accused pursuant to Sec. 1, Rule 87 of the Rules of Court.
If the same act or omission complained of also arises from contract, the
separate civil action must be filed against the estate of the accused, pursuant to Sec.
5, Rule 86 of the Rules of Court. (Boado)

BAR 2004 – Criminal and civil liabilities; effects of death of accused pending appeal.
AX was convicted of reckless imprudence resulting in homicide. The trial court
sentenced him to a prison term as well as to pay php50, 000. 00, as civil indemnity
and damages. While his appeal was pending, AX met a fatal accident. He left a young
widow, 2 children, and a million peso estate. What is the effect, if any, of his death
on his criminal as well as civil liability? Explain briefly.
Sugggested answer
The death of AX while his appeal from the judgment of the trial court is
pending, extinguishes his criminal liability. The civil liability insofar as it arises from
the crime and recoverable under the RPC is also extinguished; but indemnity and
damages may be recovered in a civil action if predicated on a source of obligation
under Article 1157, Civil Code, such as law, contracts, quasi-contracts and quasi-
delicts, but not on the basis of delicts. (People vs. Bayotas, 236 SCRA 239).
Civil indemnity and damages under the RPC are recoverable only if the accused
had been convicted with finality before he died.
Civil liability ex delicto is rooted in the guilt or innocence of the accused. In
such cases, extinction of the criminal action due to the death of the accused pending
appeal inevitably signifies the concomitant extinction of the civil liability. The final
determination of the criminal liability is a condition precedent to the prosecution of
the civil liability, hence, when the action is extinguished by the death of the accused
pending appeal thereof, said civil cannot survive. The claim for civil action will survive
regardless of the death if the same may also be predicated on other sources of
obligation e.g., quasi-delict, law, contract, quasi- contract.
The period of time during which the evader of sentence was at large during his
4 escapes should be excluded from the service of his sentence in fixing the dates of
his release. During that period he cannot be regarded as in service of sentence which
consists of deprivation of his liberty. He cannot be said to have been deprived of his

215
liberty during the period he was at large. Moreover, Article 89 stipulates that
penalties shall be served in a penal institution. (Martin vs. Eduardo, 121 SCRA)
1. Amnesty vs. absolute pardon:
AMNESTY PARDON
a. Application generally to political generally to ordinary
crimes and offenders crimes and offenders
b. Effect on convict obliterates the effectsrelieves the offender of
of conviction as if thepenalty but the effects
act were not criminal of conviction stay
c. Congress concurrence required concurrence not
needed
d. When given even before conviction after final conviction
e. To whom given usually to a class of to a specific individual
persons
f. Nature public act of the private act of the
President President
g. Evidentiary Value judicial notice, no judicial notice, must
mandatory on courts be pleaded and proved

AMNESTY - It is an act of the sovereign power granting oblivion or a general pardon

for a past offense, and is rarely, if ever, exercised in favour of a single individual, and
is usually exerted in behalf of certain classes or persons, who are subject to trial but
have not yet been convicted. (Brown vs. Walker, 161 U.S. 602).
Amnesty completely extinguishes the penalty and all its effects.
Amnesty may be granted after conviction.
Civil liability not extinguished by amnesty. While amnesty wipes out all traces
and vestiges of the crime, it does not extinguish the civil liability of the offender (U.S.
v. Madlangbayan, 2 Phil. 426)
Examples of Amnesty:
1. Proclamation No. 51, dated January 28, 1948 by President Roxas, granting
amnesty to those who collaborated with the enemy during World War II;
2. Proclamation No 76, dated June 21, 1948, by President Quirino, extending
amnesty to the Huks and PKM (Pambansang Kaisanhan ng mga Magbubukid),
who committed rebellion, sedition, illegal association;
3. Proclamaiton No. 80, dated February 28, 1987, by President Aquino, extending
amnesty to those who, in the furtherance of their political beliefs, may have
committed treason, conspiracy or proposal to commit the crime of treason,
sedition, etc.

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PARDON – It is an act of grace proceeding from the power entrusted with the
execution of the laws which exempts the individual on whom it is bestowed from the
punishment the law inflicts for the crime he has committed.
KINDS OF PARDON:
(a) Absolute Pardon;
(b) Conditional Pardon
A pardon, whether absolute or conditional, is in the nature of a deed, for the
validity of which delivery is an indispensable requisite. Until accepted, all that may
have been done is a matter of intended favour and may be cancelled. But once
accepted by the grantee, the pardon already delivered cannot be revoked by the
authority which granted it.
Pardon is given by the Chief Executive and as such it is a private act which must
be pleaded and proved by the person pardoned because the courts take no notice
thereof; amnesty is by Proclamation of the Chief Executive with the concurrence of
Congress, and it is a public act of which the courts should take judicial notice.
Pardon looks forward and relieves the offender from the consequences of an
offense of which he has been convicted. It abolishes or forgives the punishment, and
for that reason does not work the restoration of the rights to hold public office, or
the rights of suffrage, unless such rights be expressly restored by the terms of
pardon, and it “in no case exempts the culprit from the payment of the civil
indemnity imposed upon him by the sentence.” (Article 36) Amnesty looks backward
and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates
the offenses with which he is charged that the person released by amnesty stands
before the law precisely as though he had committed no offense. (People vs. Casido,
G.R. No. 116512, March 7, 1997)
Limitations on the pardoning power of the Chief Executive:
a. The power should be exercised after final conviction, because where the
President is not so prevented by the Constitution, not even Congress can
impose any restriction to prevent a presidential folly; and

b. That such power does not extend to cases of impeachment. (People vs.
Salle, G.R. No. 103567, December 4, 1995)
Consequently, before appellant may be validly granted pardon, he must first
withdraw his appeal, i.e. the appealed conviction must first be brought to finality.

A judgement of conviction becomes final:

a. When no appeal is seasonably perfected;
b. When the accused commences to serve the sentence;
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 c. When the right to appeal is expressly waived in writing;
d. When the accused applies for probation, thereby waiving his right to
appeal.
Pardon of the offended compared with pardon by the Chief Executive:
a. Executive pardon extinguishes criminal liability; pardon by the offended
does not extinguish criminal liability except in Articles 266-C (rape) and 344.
b. Executive pardon is granted after final conviction; pardon by the offended
must be granted before institution of the action because when the case is
finally filed in court, the State is regarded as the primary offended party
and the complainant is relegated to the role of a complaining witness.
Hence, the prosecution of the case becomes the prerogative of the State.
c. Executive pardon cannot extinguish the civil liability of offender; the
offended may expressly waive the civil liability.
Pardon must be granted not only by the parents of an offended minor but also
by the minor herself to be effective as an express pardon under Article 344 (and
Article 266-C, R.A. 8353). People vs. Lacson, Jr., [CA] 55OG 9460, held the pardon by
the parents, standing alone, is inefficacious. US vs. Luna, 1 Phil. 360 said that the
parents’ express pardon of a person guilty of attempted abduction of a minor is not
sufficient to remove criminal responsibility. It must be accompanied by the express
pardon of the girl herself. Here, even if it be assumed that the initial desistance of
the mother from taking any action against the accused constitutes pardon, such
pardon is ineffective without the express concurrence of the minor herself. (People
vs. Tadulan, G.R. No. 117407, April 15, 1997)
It is entirely incorrect to state that only the State is the offended party, and
therefore, only the State’s discovery of the crime could effectively commence the
running of the period of prescription. Article 91 of the Code provides that day on
which the crime is discovered by the offended party, the authorities, or their agents.
This rule makes no distinction between a public crime and a private crime. In both
cases then, the discovery may be by the offended party, the authorities, or their
agents. (Garcia, vs. CA, G.R. No. 119063, January 27, 1997)
Prescription of penalty occurs when the convict escapes from detention or
evades the service of his sentence. Evasion of service of sentence is condition
precedent to the running of the period.
Tolling of period of prescription of penalty occurs when he commits another
crime, or is captured or goes to another country with which the Philippines has no
extradition treaty.

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BAR 1995 – Prescription of crime of bigamy
Joe and Marcy were married in Batanes in 1955. After two years, Joe left Marcy
and settled in Mindanao where he later met and married Linda on 12 June 1960. The
second marriage was registered in the civil registry of Davao City three days after its
celebration. On 10 October 1975 Marcy who remained in Batanes discovered the
marriage of Joe to Linda. On 1 March 1976, Marcy filed a complaint for bigamy
against Joe.
The crime of bigamy prescribed in fifteen years computed from the day the
crime is discovered by the offended party, the authorities or their agents. Joe raised
the defense of prescription of the crime, more than fifteen years having elapsed from
the celebration of the bigamous marriage up to the filing of Marcy’s complaint. He
contended that the registration of his second marriage in the civil registry of Davao
City was constructive notice to the whole world of the celebration thereof thus
binding upon Marcy. Has the crime of bigamy charged against Joe already
prescribed? Discuss fully.
Suggested answer
No. The prescriptive period for the crime of bigamy is computed from the time
the crime was discovered by the offended party, the authorities or their agents. The
principle of constructive notice which ordinarily applies to land or property disputes
should not be applied to the crime of bigamy, as marriage is not property. Thus when
Marcy filed a complaint for bigamy on 7 March 1976, it was well within the
reglementary period as it was barely few months from the time of discovery on 10
October 1975. (Sermonia v. CA, 233 SCRA 155).

BAR 2000 – Prescription of crimes

One fateful night in January 1990, while 5-year old Albert was urinating at the
back of their house, he heard a strange noise coming from the kitchen of their
neighbour and playmate, Ara. When he peeped inside, he saw Mina, Ara’s
stepmother, very angry and strangling the 5-year old Ara to death. Albert saw Mina
carry the dead body of Ara, place it inside the trunk of her car and drive away. The
dead body of Ara was never found. Mina spread news in the neighbourhood that Ara
went to live with her grandparents in Ormoc City. For fear of his life, Albert did not
tell anyone, even his parents and relatives, about what he witnesses. Twenty and a
half (20 & ½) years after the incident, and right after his graduation in Criminology,
Albert reported the crime to NBI authorities. The crime of homicide prescribes in 20
years. Can the State still prosecute Mina for the death of Ara despite the lapse of 20
& ½ years? Explain.

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Suggested answer
Yes, the State can still prosecute Mina for the death of Ara despite the lapse
of 20 & ½ years. Under Article 91, RPC, the period of prescription commences to run
from the day on which the crime is discovered by the offended party, the authorities
or their agents. In the case at bar, the commission of the crime was known only to
Albert, who was not the offended party nor an authority or an agent of an authority.
It was discovered by the NBI authorities only when Albert revealed to them the
commission of the crime. Hence, the period of prescription of 20 years for homicide
commenced to run only from the time Albert revealed the same to the NBI
authorities.

BAR 2001 – Prescription of concubinage

On June 1, 1988, a complaint for concubinage committed on February 1987
was filed against Roberto in the Municpal Trial Court of Tanza, Cavite for purpose of
preliminary investigation. For various reasons, it was only on July 3, 1998 when the
Judge of said court decided the case by dismissing it for lack of jurisdiction since the
crime was committed in Manila. The case was subsequently filed with the City Fiscal
of Manila but it was dismissed on the ground that the crime of concubinage had
already prescribed. The law provides that the crime of concubinage prescribes in ten
(10) years. Was the dismissal by the fiscal correct? Explain.
Suggested answer
No, the fiscal’s dismissal of the case on alleged prescription is not correct. The
filing of the complaint with the Municipal Trial court, although only for preliminary
investigation, interrupted and suspended the period of prescription inasmuch as the
jurisdiction of a court in a criminal case is determined by the allegation in the
complaint or information, not by the result of proof. (People vs. Galano, 75 SCRA
193).
Article 91 does not define the term offended party. Its definition is in Section
12, Rule 110 of the Rules of Court as “the person against whom or against whose
property the offense was committed. “More specifically, it is reasonable to assume
the offended party is to whom the offender is civilly liable, in the light of Article 100
of the Code. The private individual to whom the offender is civilly liable is the
offended party.
Trips abroad do not constitute the “absence” contemplated in Article 91.
The question is whether a month mentioned in Article 90 should be
considered as the calendar month and not the 30-day month. It is to be noted that
no provision of the Revised Penal Code defines the length of the month. With the
approval of the Civil Code, R.A. 386, a month is to be considered as the regular 30-
day month (Article 13). This provision of the new Civil Code has been intended for
220
general application in the interpretation of the laws. As the offense charged in the
information took place on May 28, 1953, after the new Civil Code had come into
effect, this new provision should apply, and in accordance therewith the month in
Article 90 of the Revised Penal Code should be understood to mean the regular 30-
day month.

Article 90. Prescription of crimes. – Crimes punishable by death, reclusion perpetua

and reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen
years.
Those punishable by a correccional 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 offenses 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
tird paragraph of this article.
What are the periods for prescription of crimes?
Crimes punishable by death, reclusion perpetua and reclusion temporal shall
prescribe in twenty (20) years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen (15)
years.
Those punishable by a correccional penalty shall prescribe in ten (10) years;
with the exception of those punishable by arresto mayor, which shall prescribe in
five 5) years.
The crime of libel or other similar offenses shall prescribe in one (1) year.
The offenses of oral defamation and slander by deed shall prescribe in six (6)
months.
Light offenses prescribe in two (2) 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 paragraph of this article.

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Article 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 teminate 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.
When prescription of offenses commence to run?
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.
When it shall be interrupted?
It shall be interrupted by the filing of the complaint or information.
When it shall commence to run again?
It shall commence to run again when such proceedings teminate 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.
Prescription of crime refers to the loss of the right of the State to prosecute
offenders. It cannot be waived or extended since it is for the benefit of the accused.
Once prescription has set in, the courts automatically lose jurisdiction.
In prescription of crime:
1. The basis is the higher penalty if there were several.
2. Running of the period starts from the discovery by the offended party or the
authorities or their agents. This list is exclusive. Discovery by a neighbour or a
friend or any person not among the said list is not included.
3. The running of the period of prescription is interrupted by the filing of the
complaint or information or when the offender is out of the country. The filing
of the criminal complaint before the Office of the Prosecutor even for
purposes of preliminary investigation would interrupt the running of the
period.
4. The period runs again when the proceedings are terminated without acquittal
or conviction for reasons not attributable to the offender.
If the rules for the computation of the prescriptive periods are not provided
for under the special laws, the rules for the computation of the prescriptive period
under Article 91 may be used pursuant to article 10 of this Code which provides that

222
the provisions of this “code shall be supplementary to such laws, unless the latter
should specially provide the contrary.”
The basis of the prescriptive period is the penalty prescribed by law. The
computation of the prescriptive period shall start from the date when the offense
was discovered by the offended party, the authorities or their agents.
What is the rule in case the last day to file Information falls on Sunday or Legal
Holiday?
When the last day to file an information falls on a Sunday or legal holiday, the
period of prescription cannot be extended to the next working day. Otherwise, it will
lenthen the period fixed by the State for it to prosecute those who committed a
crime against it. (Yapdiangco vs. Buencamino, 122 SCRA 713).
Example 1
In continuing crimes, the computation of the prescriptive period starts from
the date when the accused desisted from committing the act.
Example 2
When the crime involves public documents covering realty registered under
PD 1529, the counting of the prescriptive period commences from the date of
registration.
Example 3
Soon after commtting the crime of attempted homicide punishable by prison
correccional, X was able to leave for USA with which the Philippines had an
extradition treaty and where X stayed for 20 years. When X came back to the
Philippines and charged with the crime of he had committed, he invoked prescription
under Article 90 of this Code.
The crime has not yet prescribed because X was absent from the Philippines
although the USA has an extradition treaty with the Philippines. Extradition treaty is
considered only in prescription of penalty under Article 93 and not in prescription of
crime under Article 90 in relation to Article 91.
Example 4
In the case of bigamy, the computation of the prescriptive period shall be
counted from the time of its discovery by the offended party or authorities or their
agents and not from the registration of the marriage contract with the Local Civil
Registrar (Sermonia v. Court of Appeals, 233 SCRA 155)

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Article 92. When and how penalties prescribe. – The penalties imposed by fina
sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correccional penalties, in ten years, with the execption of the penalty of
arresto mayor, which prescribes in five years;
4. Light penalties, in one year.
What are the periods of prescription of penalties?
The penalties imposed by final sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty (20) years;
2. Other afflictive penalties, in fifteen (15) years;
3. Correccional penalties, in ten (10) years, with the execption of the penalty of
arresto mayor, which prescribes in five(5) years;
4. Light penalties, in one (1) year.

Article 93. – Computation of the prescription of penalties. – The period of

prescription of penalites 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 to 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.
When the period of prescription commence to run?
The period of prescription of penalites shall commence to run from the date
when the culprit should evade the service of his sentence.
When the period is interrupted?
The period shall be interrupted if the defendant in the following instances:
1. Should give himself up,
2. Be captured,
3. Should to go to some foreign country with which this
Government has no extradition treaty, or
4. Should commit another crime before the expiration of the
period of prescription.
Elements:
1. That the penalty is imposed by final sentence;
2. That the convict evaded the service of the sentence by escaping during the
term of his sentence;

224
 3. That the convict who escaped from prison has not given himself up, or been
captured, or gone to a foreign country with which the Philippines has no
extradition treaty, or committed another crime;
4. That the penalty has prescribed, because of the lapse of time from the date of
the evasion of the service of the sentence by the convict.
The period of prescription of penalty shall commence to run again from the
date the accused evaded the servie of his sentence. It shall be interrupted if the
accused gives himself up, is captured, or should go to a foreign country with which
the Phlippines has no extradition treaty, or the accused has committed another
crime before the crime has prescribed.
An accused who was tried, convicted and sentenced to serve imprisonment by
final judgment but was able to escape before he has served his sentence cannot avail
himself of the benefits of prescription under this Article because since he had not
evaded sentence there being no service of sentence that was evaded. (Tanega v.
Masakayan, 19 SCRA 564)
Under this Article, the running of period of prescription for penalty shall be
interrupted if the accused should go to some foreign country with which the
government has no extradition treaty.
If the Philippine government has an extradition treaty with the foreign
country, the running of the prescriptive period shall not be interrupted. This will
compel the State to extradite the evader within the prescripted period.
If the Philippine government has no extradition treaty with the foreign
country, the running of the prescriptive period shall be interrupted. In the absence
of the extradition treaty, the State can neither apprehend nor extradite the accused.
Hence, it is only proper to suspend the running of the period. Otherwise, the period
is running and yet the State cannot interrupt it since there is no way to apprehend
the accused.
Evasion of service of sentence is an essential element of prescription of
penalties and takes place before the running of the period and cannot interrupt it.
(Infante vs, Warden)
Acceptance of a conditional pardon interrupts the prescriptive period because
it is similar to a case of one who flees from this jurisdiction. (People vs. Puntilos)

Article 94 – Partial extinction of criminal liability. – Criminal liability is extinguished

partially:
1. By conditional pardon;
2. By commutation of the sentence; and

225
 3. For good conduct allowances which the culprit may earn while he is
serving his sentence. (As amended by RA 10592, May 29, 2013)
4. Parole;
5. Probation

Section 2 (RA No. 10592). Article 94 of the same Act is hereby further
amended to read as follows:

"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 undergoing
preventive imprisonment or serving his sentence."

GOOD CONDUCT TIME ALLOWANCE (GCTA) – Before, only prisoner serving

sentence is entitled to allowance for good conduct. However, under Article 94 of the
RPC, as amended by RA 10592, the following shall be entitled to good conduct time
allowance:
1. A detention prisoner qualified for credit for preventive imprisonment for his
good conduct and exemplary behaviour; and
2. A prisoner convicted by the final judgment in any penal institution,
rehabilitation or detention center or any other local jail for his good conduct
and exemplary behaviour.

Parole – It consists in the suspension of the sentence of a convict after serving the
minimum of the sentence imposed without granting a pardon, prescribing the terms
upon which the sentence shall be suspended.

Article 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.

A conditional pardon is in the nature of a contract between the Chief Executive

and the convict that the effect that the former will release the latter subject to the
condition that if he does not comply with the terms of the pardon, he will be
recommitted to prison to serve the unexpired portion of the sentence or an
additional one. (Alvarez vs. Dir. Of Prison, 80 Phil. 50) By the pardonee’s consent to

226
the terms stipulated in this contract, the pardonee has thereby placed himself under
the supervision of the Chief Executive or his delegate who is duty-bound to ensure
that the pardonee complies with the terms and conditions of the pardon. Under Sec.
64(I) of the Revised Administrative Code, the Chief Executive is authorized to order
“the arrest and re-incarceration of any such person who, in his judgement, shall fail
to comply with the condition, or conditions of his pardon, parole or suspension of
sentence.” (Torres vs. Dir. Of Bureau of Corrections, G.R. No. 122338, December 29,
1995)
The duration of the period of the conditional pardon is limited to the period
of the sentence unless an intention to extend it beyond the term of the sentence is
manifest from the nature of the condition of the pardon or the language in which it
is imposed (Infante vs. Warden, 48 O.G. 5228)
Conditional pardon can be extended to the convict in 3 ways:
a. Through the operation of the Indeterminate Sentence Law;
b. Through the grant of probation under the Probation Law; and
c. Through the exercise of the President motu proprio of the power under the
Constitution.
A conditional pardon, when granted does not extinguish the civil liability
arising from the crime. (Mosanto vs. Factoran, Jr., 170 SCRA 190; People vs. Nacional,
G.R. Nos. 111294-95, September 7, 1995)
It must be given after FINAL judgment and must be accepted because of the
conditions which must be strictly complied with.
When the conditions are violated, the offender is considered in evasion of the
service of his sentence and shall be:
a. Rearrested and re-incarcerated by order of the President under the
Revised Administrative Code; or

b. Prosecuted under Article 159. When the penalty remitted is 6 years and
below, there will be an additional penalty; over 6 years, the remaining
sentence shall be served without additional penalty for the evasion.
The exercise of presidential judgment is beyond judicial scrutiny. The
determination of the violation of the conditional pardon rests exclusively in the
sound judgment of the Chief Executive. The pardonee, having consented to place his
liberty on conditional pardon upon the judgment of the power that has granted it,
cannot invoke the aid of the courts, however erroneous the findings may be upon
which his recommitment was ordered. (Tesoro vs. Dir. of Prisons, 68 Phil. 154)
A final judicial pronouncement as to the guilt of a pardonee is not a
requirement for the President to determine whether or not there has been a breach
of the terms of a conditional pardon. There is likewise no basis for the courts to
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effectuate the reinstatement of a conditional pardon revoked by the President in the
exercise of powers undisputedly solely and absolutely ledged in his office. (Torres vs.
Dir. Of Bureau of Corrections, G.R. No. 122338, December 29, 1995)
Habeas Corpus is not the remedy of the re-incarcerated pardonee. Habeas
corpus lies only where the restraint of a person’s liberty has been judicially adjudged
as illegal or unlawful. The incarceration of Torres remains legal considering that,
were it not for the grant of conditional pardon which had been revoked because of
a breach thereof, the determination of which is beyond judicial scrutiny, he would
have served his final sentence for his first conviction until November 2, 2000.
Ultimately, solely vested in the Chief Executive, who in the first place was the
exclusive author of the conditional pardon and of its revocation, is the corollary
prerogative to reinstate the pardon if in his own judgement, the acquittal of the
pardonee from the subsequent charges filed against him, warrants the same. Courts
have no authority to interfere with the grant by the President of a pardon to a
convicted criminal.

Article 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.

What is the effect of the 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.

Commutation of sentence defined – It is the change in the sentence of the court

made by the President which consists in reducing the penalty imposed upon the
offender. Such substitutes the original penalty.

What are the Distinctions between Conditional Pardon and Parol?

1. Conditional pardon is given by the Chief Executive after conviction under the
provisions of the Revised Administrative Code; Parole is given by the Parole Board to
a prisoner who has served the minimum of an indeterminate sentence.

2. For violation of conditional pardon, the offender may either be re-arrested to

serve the remitted penalty or prosecuted under Article 159 of the Revised Penal
Code; for violation of parole, the convict is re-arrested to serve the unexpired portion
of the penalty.

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Article 97. Allowance for good conduct. - The good conduct of any prisoner in any
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 behaviour.

Section 3. Article 97 of the same Act is hereby further amended to read as

follows:

"ART. 97. Allowance for good conduct. – The good conduct of any offender
qualified for credit for preventive imprisonment pursuant to Article 29 of this Code,
or of any convicted prisoner in any penal institution, rehabilitation or detention
center or any other local jail shall entitle him to the following deductions from the
period of his sentence:

1. During the first two years of imprisonment, he shall be allowed a deduction

of twenty days for each month of good behavior during detention;

2. During the third to the fifth year, inclusive, of his imprisonment, he shall be
allowed a reduction of twenty-three days for each month of good behavior during
detention;

3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of twenty-five days for each month
of good behavior during detention;

4. During the eleventh and successive years of his imprisonment, he shall be

allowed a deduction of thirty days for each month of good behavior during
detention; and

5. At any time during the period of imprisonment, he shall be allowed another

deduction of fifteen days, in addition to numbers one to four hereof, for each month
of study, teaching or mentoring service time rendered.

An appeal by the accused shall not deprive him of entitlement to the above
allowances for good conduct."

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 The good conduct time allowance under Article 97, as amended, are as
follows:
a. First 2 years of imprisonment: 20 days for each month of good behaviour
b. 3rd to 5th year: 23 days for each month of good behaviour.
c. 6th to 10th year: 25 days for each month of good behaviour.
d. 11th year and successive years: 30 days for each month of good behaviour.

Article 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 158 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
referred to in said article.

Section 4. Article 98 of the same Act is hereby further amended to read as

follows:

"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 his
preventive imprisonment or the service of his sentence under the circumstances
mentioned in Article 158 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 referred to in said article. A deduction of two-fifths of the
period of his sentence shall be granted in case said prisoner chose to stay in the
place of his confinement notwithstanding the existence of a calamity or catastrophe
enumerated in Article 158 of this Code.

"This Article shall apply to any prisoner whether undergoing preventive

imprisonment or serving sentence."

SPECIAL TIME ALLOWANCE FOR LOYALTY (STAL) – If a detention prisoner or

convicted prisoner escapes during the calamity, and subsequently surrenders within
48 hours from the time the President announces the passing away of such calamity,
he is entitled to 1/5 special time allowance for loyalty (STAL) under Article 98 of the
RPC, as amended by RA 10592; if the convicted prisoner did not surrender within the
period, he is liable for evasion of sentence under Article 158 of the RPC punishable
by a penalty equivalent to 1/5 of the time still remaining to be served under the
original sentence, which in no case shall exceed six months; if the detention prisoner
did not surrender within the period, he is not liable for evasion of service of sentence.
Only convicted prisoner can commit evasion of service of sentence because a
detention prisoner is not serving sentence, which he can evade.
In case the prisoner chose to stay in the place of his confinement
notwithstanding the existence of a calamity, he is entitled to 2/5 STAL (Article 98 as
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amended by RA 10592). A prisoner who did not escape despite the calamity
manifests a higher degree of loyalty to the penal system than those who evaded their
sentence but thereafter gave themseves up upon the passing away of the calamity.
Hence, prisoners, who did not escape, are entitled to a higher special time allowance.
The old version of Article 98 of the RPC does not grant STAL to a prisoner who
did not escape the existence of calamity. RA No. 10592 sought to correct the
unfairness under the old rule for not recognizing the loyalty displayed by a non-
evading prisoner.
However, a prisoner is not entitled to STAL if he has committed other offense
or any act in violation of the law.
As amended by R.A. No. 10592—May 29, 2013.
A deduction of 2/5 of the period of his sentence shall be granted in case said
prisoner chose to stay in the place of his confinement notwithstanding the existence
of a calamity or catastrophe enumerated in Article 158 of this Code.”
Leaving and not returning within the time period prescribed 1/5 addition to
the remaining sentence which should not be more than 6 months, that is, 1/5 of the
balance of the sentence to be served or 6 months whichever is lesser.
Leaving and thereafter returning within the time period prescribed – 1/5
deduction from his sentence as provided under Article 98.
Not leaving – no deduction for what is given premium is the loyalty shown by
returning, not the “martyrdom” of not leaving jail in the face of calamity.
It is submitted that the deduction for loyalty under Article 98 should be based
on the original sentence. As the Article did not qualify the word “sentence” unlike in
Article 158 which expressly stated that the sentence to be added shall be based on
the period “still remaining to be served.” When the law does not qualify, neither
should the courts. Moreover, Article 158 specified that the additional sentence
should not exceed 6 months showing the intent of Congress to limit the penalty to
the accused, whereas in Article 98, there is no such qualification. Finally, all doubts
must be construed in favour of the accused. Since it is more favourable to the
accused that the lowering is on the basis of the original sentence, then that
construction should be followed.

Article 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.

Section 5. Article 99 of the same Act is hereby further amended to read as

follows:"

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 "ART. 99. Who grants time allowances. – Whenever lawfully justified, the
Director of the Bureau of Corrections, the Chief of the Bureau of Jail Management
and Penology and/or the Warden of a provincial, district, municipal or city jail shall
grant allowances for good conduct. Such allowances once granted shall not be
revoked."

TIME ALLOWANCE FOR STUDY, TEACHING, AND MENTORING (TASTM) –

A prisoner is entitled to Time Allowance for Study, Teaching and Mentoring,
which is a privilege granted to a prisoner, whether detained or convicted by final
judgment, as a reward for having earned a postgraduate degree or college degree, a
certificate of completion of a vocational or technical skill or values development
course, a high school or elementary diploma or to one serving his fellow prisoner as
a teacher or mentor while incarcerated, equivalent to a deduction of a maximum of
15 days for every month of study or mentoring services.

Article 100. Civil liability of a person guilty of felony. – Every person criminally liable
for a felony is also civilly liable.
Every person criminally liable for a felony is also civilly liable. Civil liability, in
case the felony involves death, covers indemnification for consequential damages
(Article 104) including those suffered by his family or third persons by reason of the
crime. (Article 107)
Acquittal of the accused does not automatically extinguish his civil liability for
the quantum of proof in criminal prosecutions is different from that in the civil.
Acquittal shall bar the civil action arising from the crime where the judgment of
acquittal holds that:
a. The accused did not commit the acts imputed to him; or
b. He was not guilty of criminal or civil negligence.
c. There is a finding in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist (Sec. 2, par. 4,
Rule, Revised Rules of Criminal Procedure)
Acquittal will not bar a civil action in the following cases:
a. Where the acquittal is based on the reasonable doubt as only a
preponderance of evidence is required in civil cases;
b. Where the court declared that accused’s liability is not criminal but only
civil in nature;
c. Where the civil liability does not arise from or is not based upon the
criminal act of which the accused was acquitted.
Acquittal of the accused, even if based on a finding that he is not guilty, does
not carry with it the extinction of the civil liability based on quasi-delict. A separate

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civil action lies against the offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the offended party is not
allowed to recover damages on both scores. He would then be entitled only to the
bigger award.
In other words, the extinction of civil liability referred to in Rule 111, Section
2 (b) (Rules of Court) refers exclusively to civil liability founded on Article 100. The
civil liability for the same act considered quasi-delict only and not crime is not
extinguished even by a declaration in the criminal case that the criminal act charged
has not happened or has not been committed by the accused.

BAR 2000 – Civil liability: effect of acquittal.

A was a 17-year old working student who was earning his keep as a cigarette
vendor. B was driving a car along busy Espana Street at about 7:00 in the evening.
Beside B was C. the car stopped at an intersection because of the red signal of the
traffic light. While waiting for the green signal, C beckoned A to buy some cigarettes.
A approached the car and handed two sticks of cigarettes to C. While the transaction
was taking place, the traffic light changed to green and the car immediately sped off.
As the car continued to speed towards Quiapo, A clung to the window of the car but
lost his grip and fell down on the pavement. The car did not stop. A suffered serious
injuries which eventually caused his death. C was charged with Robbery with
Homicide. In the end, the Court was not convinced with moral certainty that the guilt
of C has been established beyond reasonable doubt and, thus, acquitted him on the
ground of reasonable doubt. Can the family of the victim still recover civil damages
in view of the acquittal of C? Explain.
Suggested answer
Yes, as against C, A’s family can still recover civil damages despite C’s acquittal.
When the accused in a criminal prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires only a preponderance
of evidence.
If A’s family can prove the negligence of B by preponderance of evidence, the
civil action for damages against B will prosper based on quasi-delict. Whoever by act
or omission causes damages to another, there being fault or negligence, is obliged
to pay for the damages done. Such fault or negligence, about pre-exisitng contractual
relation between the parties, is called a quasi-delict (Art. 2176 NCC). This is entirely
separate and distinct from civil liability arising from negligence under the RPC (Arts.
31, 2176, 2177, NCC).

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BAR 2005 : Civil liability: when mandatory: criminal liability
The accused was found guilty of 10 counts of rape for having carnal knowledge
with the same woman. In addition to the penalty of imprisonment, he was ordered
to pay indemnity in the amount of Php50, 000. 00 for each count. On appeal, the
accused questions the award of civil indemnity for each count, considering that the
victim is the same woman. How would you rule on the contention of the accused?
Explain.
Suggested answer
The contention is unmeritorious. Under the law, every person criminally liable
is civilly liable (Article 100, RPC). Since each count charges different felonious acts
and ought to be punished differently, the concommittant civil indemnity ex delicto
for every criminal act should be adjudged. Said civil indemnity is mandatory upon a
finding of the fact of rape; it is distinct from and should not be denominated as moral
damages which are based on different jural foundations. (People vs. Jalosjos, G.R.
No. 132875-76, November 16, 2001).

BAR 2000
Name at least two exceptions to the general rule that in case of acquittal of
the accused in a criminal case, his civil lianbility is likewise extinguished.
Suggested answer
Exceptions to the rule that acquittal from a criminal case extinguishes civil
liability, are:
(1) When the civil action is based on obligations not arising from the act
complained of as a felony;
(2) When acquittal is based on reasonable doubt or acquittal is on the ground
that guilt has not been proven beyond reasonable doubt. (Art. 29, New Civil Code).
(3) Acquittal due to an exempting circumstance, like insanity;
(4) Where the court states in its judgment that the case merely involves a civil
obligations;
(5) Where there was a proper reservation for the filing of a separate civil
action;
(6) In cases of independent civil actions provided for in Arts. 31, 32, 33 and 34
of the NCC.;
(7) When the judgment of acquittal includes a declaration that the fact from
which the civil liability might arise did not exist (Sapiera vs. CA); and

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 (8) Where the civil liability is not derived or based on the criminal act of which
the accused is acquitted (Sapiera vs CA, 314 SCRA 370).
The civil case for damages is not barred since the cause of action is based on
quasi-delict. Even if the damages are sought on the basis of crime and not quasi-
delict, the acquittal of the driver will not bar recovery of damages because the
acquittal was based not on a finding that he was not guilty but only on reasonable
doubt. (Guaring, Jr vs. CA, G.R. No. 108395, March 7, 1997)
1. What is included in civil liability:

a. Restitution or
b. Reparation of damage caused plus
c. Indemnification for consequential damages
Restitution is the return of thing itself whenever possible. Otherwise,
reparation of the thing should be made. There are only two pecuniary liabilities –
Restitution or Reparation and Indemnification. Reparation shall only be made if
restitution is not possible. This is in accord with Article 38, which states that the
pecuniary liabilities owing to the offended party are reparation of the damaged
caused and indemnification for consequential damages.
Indemnification for consequential damages shall include not only those
caused the injured party, but also those suffered by his family or by a 3 rd person by
reason of the crime. The Civil Code enumerates those cases when 3 rd persons can
recover 3rd damages by reason of the crime. (Articles 2206, 2219)

Article 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 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.

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 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.

Civil liability in particular cases (Article 101 RPC)

By insane, imbecile, under 9, over 9 but under 15:
It devolves upon the person who has control or authority upon them, unless
he is without fault or negligence.
If there be no such person, or if he is insolvent, the property of the minor or
insane shall answer for the liability except for those exempt from execution.
[Since R.A. 9344 exempts over 15 and under 18 who acted without
discernment from criminal liability, it is submitted that the above applies to them]
Person who avoided a greater evil or injury (Article 11, no. 4) – the one who
benefited from such avoidance is liable. If there were several persons benefited, the
court shall determine their proportionate share.
Example
Where a truck of a gasoline company while delivering gasoline at a gas station
caught fire and to prevent the burning of the station, the truck was driven in the
middle of the street and abandoned but it crashed and damaged the house of the
plaintiff, it was held that the owners of the properties saved from fire were liable to
her (Tan vs. standard Vacuum Oil Co., 91 Phil. 872)
In case of irresistible force or uncontrollable fear – those who employed the
force or caused the fear shall be primarily liable; secondary liability is on the actor.
When the commission of a crime results in death, the civil obligations arising
therefrom are governed by penal laws, subject to the provisions of Article 2177, the

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pertinent provisions of Chapter 2, Preliminary Title on Human Relations and title XVIII
of Book IV, regulating damages. (Article 1161, Civil Code) Thus:
As indemnity for the death of the victim of the offense – P75,000, without the
need of any evidence or proof of damages, and even though there may have been
mitigating circumstances attending the commission of the crime.
Actual damages for hospitalization/funeral expenses which should be proved
by receipts.
As indemnity for loss of earning capacity of the deceased – an amount to be
fixed according to the circumstances of the deceased related to his actual income at
the time of death and his probable life expectancy, the said indemnity to be assessed
and awarded by the court as a matter of duty, unless the deceased had no earning
capacity at said time on account of permanent disability not caused by the accused.
The law specifies “capacity” and thus, even if the deceased is not actually
employed, as long as he is not disabled and capacitated to work, he has earning
capacity and is entitled to his specie of damage.
If the deceased was obliged to give support, under Article 291, Civil Code, the
recipient who is not an heir, may demand support from the accused for not more
than 5 years, the exact duration to be fixed by the court.
As moral damages for mental anguish – an amount to be fixed by the court.
This may be recovered even by the illegitimate descendants and ascendants of the
deceased.
As exemplary damages, when the crime is attended by 1 or more aggravating
circumstances – an amount to be fixed in the discretion of the court, the same to be
considered separate from fines.
Relative to the civil aspect of the case, an aggravating circumstance, whether
ordinary or qualifying, should entitle the offended party to an award of exemplary
damages within the unbridled meaning of Article 2230 of the Civil Code.
As attorney’s fees and expenses off litigation – the actual amount thereof, (but
only when a separate civil action liability has been filed or when exemplary damages
are rewarded).
The recovery of attorney’s fees in the concept of actual or compensatory
damage is allowed under circumstances provided for in Article 2208 of the Civil Code,
one of which is when the court deems it just and equitable that attorney’s fees and
expenses of litigation should be recovered. (People vs. Bergante, G.R. Nos. 120369-
70, February 27, 1998)

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Jurisprudential declarations on damages:
The indemnities for loss of earning capacity of the deceased and for moral
damages are recoverable separately from and in addition to the fixed sum of P50,000
(now P75,000. 00) corresponding to the indemnity for the sole fact of death, and that
these damages may, however, be respectively increased or lessened according to the
mitigating or aggravating circumstances. (People vs. Teehankee, Jr., G.R. Nos.
111206-08, October 6, 1995)
Indictments for rape continue unabated and the legislative response has been
in the form of higher penalties. On like considerations, the jurisprudential path on
the civil aspect should also follow the same direction. Hence, starting with the case
at bar, if the crime of rape is committed or effectively qualified by any of the
circumstances under the present amended law, the indemnity for the victim shall be
in the increased amount of not less than P75,000. This is not only a reaction to the
apathetic societal perception of the penal law and the financial fluctuations over
time, but also an expression of the displeasure of the court over the incidence of
heinous crimes against chastity. (People vs. Victor, G.R. No. 127903, July 9, 1998)
Under Article 2229 of the Civil Code, in addition to the award of moral
damages, exemplary or corrective damages may be adjudged in order to deter the
commission of similar acts in the future. The award for exemplary damages is
designed to permit the courts to mould behaviour that has socially deleterious
consequences. Its imposition is required by public policy to suppress the wanton acts
of an offender.
Article 345 provides that persons guilty of rape, seduction or abduction, shall
be sentenced to: (a) indemnify the offended woman; (b) acknowledge the offspring,
unless the law should prevent him from doing so; and (c) in every case to support
the offspring. Article 283 of the Civil Code obliges the father to recognize the child as
his natural child in cases of rape, abduction, and seduction when the period of the
offense coincides, more or less, with the period of conception. However,
acknowledgement is disallowed if the offender is a married man, with only support
for the offspring as part of the sentence.
Compulsory acknowledgement, as well as the support of the child is proper
there being no legal impediment in doing so, as it appears that complainant and
appellant are both single. The crime of rape committed by the accused carries with
it, among others, the obligations to acknowledge the offspring if the character of its
origin does not prevent it and support the same. (People vs. Luchico, 49 Phil. 689;
People vs. Namayan, G.R. No. 106539, July 18, 1995)

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BAR 1982
“A,” “B” and “C” took turns in raping a woman “X.” If all of them were finally
convicted, would it be correct for the judge to order each of them to acknowledge
and support the offspring of “X”? Reason
Suggested
It would not be correct for the judge to order each of the accused to
acknowledge the offspring of “X” because it is impossible to determine the paternity
thereof. (People v. de Leon et. al., L – 2094, April 1950). It would be correct, however,
for the court to order each of them to support the offspring as anyone of them may
be the father and that each and everyone of them is directly responsible that an
unwilling mother may give birth to an undesired offspring as each and everyone of
them contributed to and cooperated in giving birth to the child. People v. Veto, et.
al., 80 Phil. 438).

Article 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.

Under this Article, it is the primary liability of the person who personally
caused the damage to pay the damage caused. It is only in the absence of this person
that the innkeepers, tavern-keepers and proprietors of establishments that are
subsidiarily liable for damages caused.

The elements are:

1. The person who actually caused the damage is absent or insolvent;

2. The innkeeper, tavern-keeper, or proprietor or his employee committed
violation of a municipal ordinance or some general or special police regulation;
3. A crime was committed in suhc inn or establishment.

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 The innkeepers, tavern-keepers or proprietors are not subsidiarily liable if the
loss of property of the guests is due to robbery with violence against or intimidation
of persons unless committed by the employees of the former.

For the innkeepers, tavern-keepers or proprietors to be subsidiarily liale for

the restitution of the goods, or for the payment of the value thereof, owned by the
guest, the loss of the goods must be due to the crimes of robbery (with use of force
upon things) or theft.

Article 103. Subsidiary civil liability of other persons. – The subsidiary civil 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.
What is the rule on subsidiary civil liability of other persons?
The subsidiary civil 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.
Employers, teachers, persons, and corporations, engaged in any kind of
industry.
The basis of subsidiary liability is the employer-employee relationship. The
employer should be engaged in any kind of industry which means an undertaking for
profit where labor and capital are utilized.
A separate action against the employer for civil liability is not necessary
because the latter’s liability for the employee’s crime is absolute as long as the
following conditions are present:
a. The employer-employee relationship is established;
b. The crime was committed by the accused during the performance of his
assigned task;
c. The employer is engaged in an industry;
d. The accused was convicted and civil liability goes with the conviction. (If
the employee died and hence could not be sued, the action must be
pursued under the Civil Code);
e. Judgment was final and executory but the writ of execution was returned
unsatisfied because the accused has no property. The offended should then
file a motion for the issuance of a subsidiary writ of execution with notice
to the employer so that the latter may be heard thereon.

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 The enforcement of subsidiary liability in the same criminal proceedings is
sanctioned on the thesis that it really is a part of, and merely an incident in, the
execution process of the judgment. But execution against the employer must not
issue as a matter of course. The court must determine and resolve in a hearing set
for the purpose the legal applicability and propriety of the employer’s liability. This
is mandatory even when it appears prima facie that execution against the employee
cannot be satisfied. The court must convince itself that the convicted employee is in
truth in the employ of the employer; that the latter is engaged in an industry of some
kind; that the employee has committed the crime to which civil liability attaches
while in the performance of his duty as such; and that execution against the
employee is unsuccessful by reason of insolvency. (Yonaha vs. CA, G.R. No. 112346,
March 29, 1996)
It is a basic postulate in criminal law that the criminal act of one person cannot
be charged to another without a showing that he participated directly or
constructively in the act or that there was conspiracy. In cases of employer-employee
relations, an employer is not criminally liable for the acts of his employee or agent
unless he, in some ways, participates in, counsels or abets his employee’s acts or
omissions. In such case, the employer himself becomes a participant to the criminal
act of his employee. His liability under the circumstances in direct and criminal.
However, under Article 102, in relation to Article 103, the employer’s liability for the
criminal negligence of his employee is subsidiary in nature and is limited only to civil
indemnity. (Fernando vs. Ocampo, 37 SCRA 311) Thus, an employer is party to a
criminal case for the criminal negligence of his employee by reason of his subsidiary
civil liability under the law. (Yusay vs. Adil, 164 SCRA 49

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 Chapter Two
WHAT CIVIL LIABILITY INCLUDES

Article 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.

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.

Reparation of the damage caused cannot be ordered if the thing stolen is

proved to be in possession of the accused. Under this Article, restitution must be
ordered before reparation of the damage caused. It is only when restitution is not
possible that reparation of the damage caused may be resorted to.

Example 1

A was prosecuted for, and convicted of, theft of pieces of jewelry. In the
judgment of conviction, A was ordered to pay the value of the pieces of jewelry he
had stolen. It was, however, prove that the subject property has been, and are still,
in possession of A. In fact, this was admitted by A himself.

While the conviction of A was proper, however, the order for him to pay the
value of the pieces of jewelry is erroneous. It is only when restitution is not possible,
i.e., A cannot return them, that reparation should be made.

Article 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 them.

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 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.

Restitution is the return of thing itself whenever possible. Otherwise,

reparation of the thing should be made. There are only two pecuniary liabilities –
restitution or reparation and indeminification. Reparation shall only be made if
restitution is not possible.

Restitution may be made although the thing stolen is in the possession of a

third person who had acquired it in a legal manner, reserving, however, his action of
recovery thereof against the proper person. Possession of personal property
acquired in good faith is considered as a title thereto, but the person who has lost
the personal property, or who was illegally deprived thereof may recover it from any
person who possesses it.

In other words, the thing itself is to be restored, whenever possible with

allowance for deterioration or diminution of value, even if found in the possession
of a third person who acquired it legally, although the latter can file an action against
the person who may be liable to him except if the thing has been acquired by the
third person in the manner provided by law which bars an action for its recovery.

Example

The jewelry misappropriated by a swindler which still exist and has not
disappeared must be restored to the owner without any obligation to pay the loan
even if the pawnshop axquired it in good faith or by legal means (People v. Quiamco)

If the accused is acquitted, he canot be ordered to return the property or

amount received as that would be inconsistent (People vs. Pantig), except if it proved
that the property belonged to the offended party and was in his possession when
stolen from him, and the identity of the offender is not proved, in which case the
acquitted person in whose possession the property was found may b eordered by
the court to return it to the owner. (People vs. Alejano.).

Article 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.

Reparation will be ordered by the court if restitution is not possible. Thus,

when the stolen property cannot be returned because it was sold by them to an
unknown person, he will be required by the court, if found guilty, to pay the actual
price of the thing plus its sentimental value to its owner.

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 In rape case, the accused was ordered to pay the value of the woman’s torn
garments. This is reparation which is distinct from the indemnity.

Payment by the insurance company does not relieve the offender of his
obligation to repair the damage caused.

The accused contends that inasmuch as the owner of the car damaged was
already paid his damages by the insurance company, he should not be required to
pay such damages caused by him.

That payment by the insurance company was not made on behalf of the
accused, but was made pursuant to its contract with the owner of the car. But the
insurance company is subrogated to the right of the offended party as regards the
damages.

If there is no evidence as to the value of the thing unrecovered, there can be

no reparation (People vs. Dalena).

Article 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.

What are included in indemnification for consequential damages?

Under this article, 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.

Damages recoverable in case of death:

1. In recent case, the Supreme Court has raised it to P75, 000. 00;
2. For the loss of the earning capacity of the deceased;
3. Support in favour of a person to whom the deceased was obliged to give, such
person not being an heir of the deceased;
4. Moral damages for mental anguish in favour of spouses, descendants and
ascendants of the deceased;
5. Exemplary damages in certain cases;
6. Attorney’s fees and expenses of litigation, actual amounts thereof, but only
when a separate civil action has been filed, or when exemplary damages are
awarded; and
7. Interests in proper cases.

Article 108. Obligation to make restoration, reparation for damages, or

indemnification for consequential damages and actions to demand the same; Upon

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whom it devolves. - The obligation to make restoration or reparation for damages
and indemnification for 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.

Under this Article, civil liability survives the offender or person liable because
it provides: “the obligation to make restoration or reparation for damages and
indemnification for consequential damages devolves upon the heirs of the person
liable.”

The heirs of the person liable have no obligation if restoration is not possible
and the deceased left no property.

Civil liability is possible only when the offender dies after final judgment.

If the obligation is liquidated, that is, if the offender before his death was
condemned by final judgment to make restitution, reparation, or indemnfication, the
offended party make effective his claim by following the procedure provided for in
Rule 86 of the Rules of Court, that is, by filing a copy of the judgment of conviction
against the deceased with the court taking cognizance of the estate or intestate
proceedings.

If the death of the offender took place before any final judgment of conviction
was rendered against him, the action for restitution, reparation, or indemnification
must necessary be dismissed, in accordance with the provisions of Articlr 89, par.1,
of the Code.

Article 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.

The entire amount of the civil indemnity, together with the moral and actual
damages, should be apportioned among the persons who cooperated in the
commission of the crime according to the degree of their liability, respective
responsibilities and actual participation in the criminal act.

Article 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.

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 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.

Under this Code, the principals, accomplices or accessories are persons

responsible for a crime and aside from their liability for the crime committed, they
are also civilly liable for restitution, reparation of the damage caused and
indemnification for the consequential damages, not only to the offended party but
also to the family of the offended party or to a third person because of the crime.

The principals are primarily liable for their own part of the indemnity and
subsidiarily liable only for the portion adjudged against their accomplices in case of
the latter’s insolvency, while the accomplices are solidarily liable for the portion
adjudged to them and subsidiarily liable for the portion of their principal in case of
insolvency (Lumiguis v. People, 19 SCRA 842).

Simply put, the subsidiary liability is enforced: (a) first, against property of the
principals; and (b) second, against that of the accomplice; and (c) third, against that
of the accessories.

Article 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 the extent of such participation.

The person who participated gratitiously in the proceeds of a felony referred

to in this article is not criminally liable.

If the person who participated gratitiously in the proceeds of the felony knew
that the property came from an illegal spource, he is an accessory and he is not only
civilly liable, but also criminally liable.

Example:

A stole a ring valued at P10, 000. 00 which was given as gift to B. B sold the
ring for P1, 000. 00. The obligation of B will be P1, 000. 00 which is the extent of his
gratuitous participation. The fortune of this person who has gratuitously participated
in the commission of the crime must be augmented.

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 Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

Article 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.

The civil liability ex-delicto of the offender may be extinguished by any of the
following modes of extinguishment provided for under Article 1161 of the New Civil
Code:

1. Payment or fulfilment of the obligation;

2. Loss of the thing due;
3. Remission of the debt or obligation;
4. Merger of the rights of the creditor and debtor;
5. Compensation; and
6. Novation.

Article 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.

Even if the offender was extended amnesty, pardon, commutation of sentence

or any other reason freeing him from serving his sentence, he shall remain civilly
liable. Hence, even if the offender pleaded guilty and manifested that he was availing
himself of the probation law, the Court has still the duty to set the case for hearing
to receive evidence on his civil liability.

References:
1. The Revised Penal Code by Luis B. Reyes
2. Compact Reviewer in Criminal Law by Atty. Leonor D. Boado
3. Criminal Law Reviewer Vol. 1 by Judge Marlo B. Campanilla
4. The Revised Penal Code – Explained and Exemplified by Judge Roger B.
Patricio
5. Fundamentals of Criminal Law Review by Antonio L. Gregorio
6. Answer to Bar Examination Questions in Criminal Law by UP Law Complex

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