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.
Article 61 provides for the rules to be observed in lowering the penalty by one or two degrees
• Article 46 provides that penalty prescribed by law in general terms shall be imposed upon principal in
consummated felony
• Articles 50-57 provides that penalty prescribed by law for the felony shall be lowered one or two
degrees:
1. Principal in frustrated felony – one degree lower;
2. Principal in attempted felony – two degrees lower;
3. Accomplice in consummated felony – one degree lower; and
4. Accessory in consummated felony – two degrees lower.
• Rules in Article 61 also applies in determining minimum of the indeterminate penalty under the
Indeterminate Sentence Law
1. Minimum of the indeterminate penalty is within the range of penalty next lower than
prescribed by Revised Penal Code for the offense
• Rules also apply in lowering penalty by one or two degrees by reason of presence of privileged
mitigating circumstance (Article 68 & 69), or when the penalty is divisible and there are 2 or more
generic mitigating circumstances and NO aggravating circumstance (Art. 64)
The Lower Penalty Shall Be Taken From The Graduated Scale In Article 71.
• Scale No. 1 in Art. 71 (penalties in order)
• Death
• Reclusion perpetua,
• Reclusion temporal,
• Prision mayor,
• Prision correccional,
• Arresto mayor,
• Destierro,
• Arresto menor,
• Public censure,
• Fine.

Indivisible penalties Divisible penalties Divisible penalties divided into three

periods
1. Death 1. Reclusion temporal down to arresto 1. Minimum
2. Reclusion menor 2. Mediun
perpetua 3. Maximum
3. Public censure

RULES FOR GRADUATION PENALTIES UNDER ART. 61

1. FIRST RULE: When the penalty is single and indivisible.

When penalty prescribed is single and indivisible - the penalty next lower in degree shall be that
immediately following the indivisible penalty in the respective graduated scale in Art. 71

Illustration: Ex. Reclusion perpetua – penalty for kidnapping and failing to return a minor (Article 270).
In Scale No. 1 of Article 71 – penalty immediately following reclusion perpetua is reclusion temporal
(therefore it is the penalty next lower in degree).

2. SECOND RULE:
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.

A. Penalty is composed of two indivisible penalties.

Illustration: Indivisible penalties: reclusion perpetua to death.

They are the penalties for parricide (Article 246).
Penalty immediately following lesser of the penalties (or reclusion perpetua) - reclusion temporaL

B. When the penalty is composed of one or more divisible penalties to be imposed to their full
extent.

Illustration: Divisible penalty imposed to full extent - reclusion temporal

Penalty immediately following divisible penalty of reclusion temporal - prision mayor
 Illustration: Two divisible penalties imposed to full extent - prision correccional to prision mayor.
Penalty immediately following the lesser penalty between prision correccional to prision mayor -
arresto mayor (Scale No. 1 Article 71)

3. THIRD RULE:
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.

A. When the penalty is composed of two indivisible penalties and the maximum period of a
divisible penalty.

Illustration: the penalty for murder is reclusion temporal in its maximum period to death.
Reclusion perpetua, being in between reclusion temporal and death is included in the penalty.
Thus, the penalty consists in 2 indivisible penalties of death and reclusion perpetua and divisible
penalty of reclusion temporal in its maximum period. The proper divisible penalty is reclusion
tempora. The penalty immediately following reclusion temporal is prision mayor. The penalty
next lower is the medium and minimum periods of reclusion temporal and the maximum of
prision mayor.
 B. When the penalty is composed of one indivisible penalty and the maximum period of a
divisible penalty.

Illustration: reclusion temporal it its maximum period to reclusion perpetua. The penalty next
lower is the medium & minimum periods of reclusion temporal and the maximum of prision
mayor.

4. FOURTH RULE: When the penalty is composed of several periods.

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.

• “Several” mean ‘consisting in more than 2 periods’

• Fourth rule: contemplates penalty composed of at least 3 periods.
• Several periods MUST correspond to different divisible penalties
• Penalty composed of several periods corresponding to different divisible penalties - prision
mayor (medium period) TO reclusion temporal (minimum period)
• Period immediately following minimum (= prision mayor in medium period) - is prision mayor
in minimum period
• Two periods next following are: max and med periods of prision correctional (=penalty next
following scale in Article 71 since it cannot be taken from penalty prescribed)

Illustration:
 5. FIFTH RULE: By analogy, because “not specifically provided for in the four preceding rules”
When the law prescribes a penalty for a crime in some manner not specifically provided for in the four
proceedings rules, the courts, proceedings by analogy, shall impose the corresponding penalties upon
the guilty as principals in the frustrated felony, or of attempt to commit the same, and upon
acomplices and accessories

Illustration:
A. When the penalty has two periods. - The penalty next lower than prison correctional in its
maximum and its minimum and medium periods is arresto mayor in its medium and maximum
periods

B. When the penalty has one period. The penalty next lower to prison mayor in its maximum
period is prision mayor in its medium period

Simplified Rules: (for rules in Par. 4 and 5 of Article 61)

1. If penalty prescribed by Code consists in 3 periods (corresponding to different divisible penalties) - penalty
next lower in degree is penalty consisting in 3 periods down the scale
2. If penalty prescribed by Code consists in 2 periods - penalty next lower in degree is the penalty consisting
in 2 periods down the scale
3. If penalty prescribed by Code consists in only 1 period - penalty next lower in degree is the next period
down in the Scale

Mitigating And Aggravating Circumstances Are Disregarded In The Application Of The Rules For Graduating
Penalties
• NOTE: Each paragraph of Article 61 begins with “When the penalty prescribed for the felony” or “crime”.
• In lowering the penalty – penalty prescribed by the Revised Penal Code for the crime is the basis (w/o
regard to the mitigating or aggravating circumstances w/c attended the commission of the crime)
• It is only after the penalty next lower in degree is already determined that the mitigating and/or
aggravating circumstances should be considered.
Ex. A wants to kill B, and injures vitals part in the stomach of B. the wounds would have caused the death of
B were it not for immediate medical attendance. A is now prosecuted for homicide, there are not attending
and qualified circumstance. However the killing was not consummated only frustrated, the penalty for
homicide is reclusion temporal absent any mitigating or aggravating circumstance.
• The penalty one degree for lower on (for frustrated) from reclusion temporal is prision mayor.