Aggravating Circumstances Posted on January 28, 2010 by attyrcd The aggravating circumstances are based on the higher degree

of perversity of the offender manifested at the time of the commission of the felony; the place, the means, ways or methods employed; his relationship with the offended party; or other personal circumstance and others. Kinds of aggravating circumstances: 1. Generic - that which generally applies to all crimes like recidivism. 2. Specific - that which applies to a particular felony like cruelty in crimes against persons. 3. Qualifying - that which changes the nature of the felony, as treachery in murder. 4. Inherent - that which is part of the felony committed, as unlawful entry in robbery with force upon things. Distinction: Generic 1. Can be offset by an ordinary mitigating. 2. Maybe proved even though not alleged. Qualifying 1. Cannot be offset by an ordinary mitigating. 2. Cannot be proved as such unless alleged in the information. However, it may be proved as a generic aggravating circumstance. 3. Not offset have the effect of increasing the penalty to the 3. Changes not only the nature but also the name of the offense. maximum but not beyond that provided by law. The circumstances specifying an offense or aggravating the penalty thereof must be proved as conclusively as the act itself, mere suppositions or presumptions being insufficient to establish their presence according to law. The Supreme Court said that even if the generic aggravating circumstance is not alleged in the information, the same may be proved even over the objection of the adverse party. (Q10, 1991 Bar) Specific circumstances: 1. Taking advantage of Official Position. That advantage be taken by the offender of his public position. (Art. 14, Par. 1) It is not only necessary that the person committing the crime be a public officer; he must also use the influence, prestige or ascendancy which such office gives him as a means by which he realizes his purpose. (People v. 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 public officer. (People v. Teves, 44 Phil 275) 2. That the crime be committed in contempt of or with insult to the public authorities. (Art. 14, Par. 2) Public authorities is a person in authority, not an agent of a person in authority, and that the person in authority should be engaged in the exercise of his public functions, and that he should not be the object of the crime. It is also essential that the offender knows of the identity of the public authority. The Chief of Police is a person in authority for he is vested with authority to maintain peace and order and is duty bound to prosecute and to apprehend violators of the laws. (People v. Rodil, 109 SCRA 308) A Barangay Chairman is a person in authority. Teachers, professors, supervisors of public and duly recognized private schools, colleges and universities, as well as lawyers are persons in authority only for the purposes of Direct Assault (Art. 148) and Simple Resistance and Disobedience (Art. 151), but not for the purpose of the aggravating circumstance in this paragraph. (People v. Tac-an, 182 SCRA 601) If the crime is committed against the public authority, the crime committed is direct assault and this aggravating circumstance will be considered absorbed. (US v. Rodriguez, 29 Phil. 150) 3. Act be committed with insult to 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. (Art. 14, Par. 3) There are four aggravating circumstances in this paragraph, which, if present in the commission of the crime are considered as one aggravating circumstance only. There must, however, be proof showing that the accused deliberately intended to offend or insult the age or sex of the offended party. (People v. Mangsant, 65 Phil. 548) So, these circumstances was not considered when the accused was drunk at the time of the commission of the offense. This aggravating circumstance is considered only in crimes against persons, security or honor and not in crimes against property such as robbery with homicide. (People v. Ang, 62833, Oct. 8, 1985) The mere fact that the victim was a woman is not itself sufficient to support the contention that there was insult of disrespect to sex. It is necessary to prove the specific fact or circumstance, other than that the victim is a woman, showing insult or disregard of sex in order that it may be considered as an aggravating circumstance, such as compelling a woman to go to the house of the accused against her will. (US v. Quevengco, 2 Phil. 412) Disregard of respect due to sex and age may be included in treachery. (People v. Limaco, 99 Phil. 35) Dwelling includes dependencies, staircase, and enclosures under the house. A place of sanctuary worthy of respect. (People v. Parazo, May 14, 1997) A combination house and store is not a dwelling. (People v. Magnaue, 3510, May 30, 1951) For dwelling to be appreciated, it is not necessary that the victim is the owner of the dwelling. It is enough that she has the right to be in the dwelling and not only as an incidental circumstance. (People v. Sto. Tomas, 138 SCRA 206) It is aggravating where the place is, even for a brief moment, a home to the offended party though he is not the owner thereof, provided that he did not provoke the commission of the crime and the dwelling is not that of the offender also. (People v. Badilla, 185 SCRA 554) Dwelling is an aggravating circumstance even if one does not enter the house of the victim. Such as when the assailant from the outside shoots the victim inside his house. (People v. Bautista, 440, Nov. 29, 1947) This circumstance is not considered where provocation was given by the offended party or where both parties reside in the same dwelling. In case of a boarding house, each room of a boarder is considered a separate dwelling. (People v. Daniel, 75 OG 4834) Dwelling is aggravating if adultery is committed in the conjugal dwelling because the respect due the conjugal house is violated (US v. Ibanez, 33 Phil. 611) if the paramour is not residing in the conjugal dwelling. 4. Acts be committed with abuse of confidence or obvious ungratefulness. (Art. 14, Par. 4) The requisites are: a. The offended party had trusted the offender.

b. The offender abused such trust. c. That such abuse of confidence facilitated the commission of the crime . If the accused raped a girl who was entrusted to his care by the parents, there is betrayal of confidence reposed upon him by the parents but not an abuse of the confidence of the offended party (People v. Crumb, 46 OG 6162) since the confidence between the parties must be personal. But if the offender was the servant of the family and sometimes took care of the child, whom she later killed, there is present grave abuse of confidence. (People v. Caliso, 58 Phil. 283) 5. Crime be committed in the (1) Palace of the Chief Executive, or (2) in his presence, or (3) where public authorities are engaged in the discharge of their duties, or in (4) a place dedicated to religious worship. (Art. 14, Par. 5) In crime committed in the presence of the President, it is not necessary that the latter be exercising his functions. With respect to the first, third, and fourth, the crime must have been committed with full consciousness of the place; in other words, the offender must have intended to commit the crime at the place, knowing fully well that the place deserves respect. This circumstance is present when the accused stabbed the victim in the office of the Chief of Police who was investigating a fist fight between them. (People v. De Ananias, 96 Phil. 979) 6. Nighttime, Uninhabited Place or Band. That the crime be committed at night time, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense. Whenever more than 3 armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. (Art. 14, Par. 6) Nocturnity comprises the period of the day between sunset and the beginning of dawn. But for nighttime to be appreciated, it is not absolutely necessary that the offender purposely sought nighttime to commit the crime; it is enough that it facilitated the commission of the crime or his escape or prevented identification. (People v. Cristobal, 91 SCRA 71) Where nocturnity is so interlocked with the circumstance of treachery as to become part of the latter, nocturnity cannot be taken into consideration as an aggravating circumstance. (People v. Pardo, 79 Phil. 566) If the commission of the crime was commenced at day time and it was consummated at nighttime, such is not aggravated. (US v. Dowdell, 11 Phil. 4) Chance meeting between the accused and the victim negates nighttime as an aggravating circumstances. (People v. Aquino, 124 SCRA 835) (Q9, 1994 Bar; Q3, 1997 Bar) Uninhabited place (Despoblado) is determined not by the distance of the nearest house to the scene of the crime, but whether or not in the place where the crime was committed there was a reasonable possibility of the victim receiving some help. (People v. Bangug, 52 Phil. 87) Provided that solitude was purposely sought or taken advantage of to facilitate the commission of the felony. (People v. Coderes, 104 SCRA 255) Band consists of at least four armed malefactors organized with the intention of carrying out any unlawful design. 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 v. Valero, 51 SCRA 322) In a band, conspiracy is presumed, it need not be proved. Band is inherent in brigandage but not in simple robbery committed by band. It is not considered in the crime of rape. (People v. Corpus, 43 OG 2249) Band and abuse of superior strength have the same essence which is the utilization of the combined strength of the assailants to overpower the victim and consummate the killing. (People v. Medrano, 31871, December 14, 1981) 7. Crime committed on the Occasion of Calamity. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic, or other calamity or misfortune. (Art. 14, Par. 7) This is aggravating because the offender who in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune to despoil them. (US v. Rodriguez, 19 Phil. 150) The development of engine trouble at sea is a misfortune but it does not come within the meaning of other calamity or misfortune. (People v. Arpa, 27 SCRA 1037) 8. Aid of Armed Men who insure or afford impunity. That the crime be committed with the aid of armed men or persons who insure or afford impunity. (Art. 14, Par. 8) It should be borne in mind, that the armed men should not participate in the execution of the felony. Otherwise, they become co-principals. Casual presence is not aggravating if the offender did not avail himself of any of their aid nor did he knowingly count upon their assistance in the commission of the crime. (US v. Abaigar, 2 Phil. 417) If used as a means to insure its execution in the killing of a person, such is absorbed in treachery. 9. Recidivism (Art. 14, Par. 9) 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. Recidivism involves at least two conviction, and hence, it is a form of plurality of crimes like reiteration, habitual delinquency and quasi-recidivism. The first conviction must be by final judgment and must take place prior to the second conviction. (People v. Baldera, 86 Phil. 189) The number of years intervening between the convictions is immaterial. Recidivism is likewise considered even if the offender has been given absolute pardon for the first conviction, since pardon merely extinguishes the penalty (US v. Sotelo, 28 Phil. 147) but not in the case of amnesty as such extinguishes all the effects in law of the crime committed. (US v. Francisco, 10 Phil. 185) Habitual delinquent is a person who within a period of ten (10) years from the date of his release or last conviction of the crime of serious or less serious physical injuries, robbery, theft, estafa, or falsification, has been found guilty of any said crimes a third time or oftener. (Art. 62, Par. 5) Distinction: Recidivism Habitual Delinquency 1. Applies to all offenses embraced in the same title of the Code. 1. Applicable only to robbery, theft, estafa, falsification, serious and less serious injuries. 2. Need not be alleged in the complaint or information. 2. Must be alleged or charged. 3. If not offset, merely raises the imposition of the prescribed 3. Carries with it an additional penalty. penalty to its maximum period. 4. Intervening period between convictions is immaterial. 4. Between each conviction there should not be a lapse of time of more than 10 years. May the offender be a recidivist and a habitual delinquent at the same time? Yes, if the offender was convicted for the third time of theft within the conditions prescribed by law, the first and second convictions referring to robbery and estafa, recidivism will be aggravating in the imposition of the principal penalty for the crime of theft. At the same time, by reason of such recidivism, he is also a habitual delinquent, and is sentenced to the additional penalty provided by law, although in the imposition of the said additional penalty, recidivism is no longer considered as an aggravating

circumstance as it is inherent in this form of habitual delinquency. (People v. Manalo, 8586, May 25, 1956) May the offender be a habitual delinquent without being a recidivist? Yes, if the three convictions refer to the specific felonies not embraced in the same title of the Code like robbery, falsification and serious physical injuries. Quasi-recidivism arises when the offender shall commit a felony after having been convicted by final judgment, before beginning to serve the sentence, or while serving the same, he shall be punished by the maximum period of the penalty prescribed by law for the new felony, besides being penalized as a habitual delinquent, if applicable. (Art. 160) This is not a separate crime by itself. It is necessary to allege recidivism in the information and to attach thereto certified copies of the previous sentence rendered against the accused to be presented during the trial. (People v. Martinada, 194 SCRA 36) (Q18, 1993 Bar) 10. Reiteracion or Habituality. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for 2 or more crimes to which it attaches a lighter penalty. (Art. 14, Par. 10) In reiteracion (habituality), it is essential that the offender must have been previously punished, i.e., he must have served, partially or totally, the penalty imposed upon him; that the penalty for the crime for which he was previously punished, must be equal or greater than the penalty for the crime for which he is on trial, or that he had previously been punished for 2 or more offenses the penalty for which is lighter than the penalty prescribed for the offenses for which he is on trial. Reiteracion is discretionary on the court. In reiteracion, the offenses are not embraced in the same title of the Code. To be appreciated, it is necessary to present as evidence certified copies of the sentence rendered against the accused, except when the accused pleads guilty to an information alleging reiteracion. (People v. Monterey, Sept. 3, 1996) 11. Crime be committed in consideration of a price, reward, or promise. (Art. 14, Par. 11) It is not enough that the one committed the crime received a gift or a reward; it is essential that such price or reward or promise must have been the prime consideration in the commission of the crime. Thus, if the money was given, without any previous promise, after the commission of the crime as an expression of sympathy, this circumstance cannot be present. (US v. Flores, 28 Phil. 29) The offender who induced others to commit the crime for a price, promise or reward is a principal by inducement. (People v. Otero, 51 Phil. 201) 12. 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. (Art. 14, Par. 12) It is essential that any of the means mentioned must have been used by such offender in the commission of the crime. Thus, if the building is burned as a means to kill the occupant, the crime will be murder, not murder with arson. (People v. Villarega, 54 OG 3482) This is the only aggravating circumstance that could be a crime in itself. Such that 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 v. Comporedondo, 47 OG 779) 13. That the act be committed with evident premeditation. (Art. 14, Par. 13) The 3 requisites of evident premeditation are: a. The time when the accused determined to commit the crime. b. An act manifestly indicating that the accused has clung to his determination. c. A sufficient lapse of time between such determination and execution, to allow him to reflect upon the consequences of his acts. (Q3, 1997 Bar) In order that premeditation may be considered either as an aggravating circumstance or as a qualifying circumstance, it must be evident, that is, the intention to kill must be manifest and it must have been planned in the mind of the offender and carefully meditated. Conspiracy does not necessarily imply evident premeditation although premeditation can co-exist with price or reward. (US v. Nabor, 7 Phil. 267) This circumstance is inherent in the crime of robbery, especially committed by several persons, since there must be an agreement and the persons have to meditate and reflect on the manner of carrying out the crime and they have to act immediately in order to succeed. (People Carillo, supra) But it may be considered in robbery with homicide (People v. Valeriano, 1259, Sept. 19, 1955), if there is evident premeditation to kill besides stealing. Mere threats to kill without evidence of sufficient time for meditation and reflection do not constitute evident premeditation. (People v. Apao Moro, 6771,May 18, 1957) An attack made in the heat of anger negates evident premeditation. (People v. Amin, 39046, June 30, 1975) 14. Craft, fraud, or disguise is employed. (Art. 14, Par. 14) These are intellectual means in the commission of a crime and are separate aggravating circumstances. By the employment of craft and fraud, the offender resorts more to intellectual rather than material means in order to attain his objective. Craft is cunning or intellectual trickery or chicanery resorted to by the accused to carry out his evil design. (People v. Zea, 130 SCRA 77) There is craft when the accused assumed a position of authority to gain entrance in a house to enable him to be alone with the offended party to commit acts of lasciviousness upon her. (People v. Timbol, 47 OG 1859) Also, this circumstance is aggravating where the offenders pretended to be bona fide passengers of a jeepney in order not to arouse suspicion, but once inside the jeepney, they robbed the passengers and the driver. (People v. Lee, 66848, Dec. 20, 1991) If the craft is used to insure the commission of the crime without risk to the accused, it is absorbed by treachery. (People v. Malig, 46 OG Sup. 11, 255) Fraud which constitutes deceit and manifested by insidious words or machination is illustrated in the case of the step-father of the offended party, who taking advantage of the absence of the 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 v. De Leon, 50 Phil. 539) The term disguise refers to anything that the offender may use to prevent recognition. If in spite of the disguise, the offender was recognized, such cannot be aggravating. (People v. Sonsona, 8966, May 25, 1955) 15. That advantage be taken of superior strength, or means be employed to weaken the defense. (Art. 14, Par. 15) There must be a notorious inequality of forces between the victim and the aggressor, and to appreciate it, it is necessary to evaluate the physical conditions of the protagonists and the arms employed by each side. (People v. Cabiling, 74 SCRA 285) There must be deliberate intent to take advantage of the same. (People v. Bello, 10 SCRA 298) Mere numerical superiority does not necessarily involve superiority in strength. It is necessary to prove, besides, that attackers cooperated in such a way as to secure advantage from superiority in strength. (People v. Elizaga, 47 OG 38) Abuse of superior strength is inherent in parricide when the husband killed his wife, as generally the husband is physically stronger than the wife. (People v. Galapia, supra) Also, it is inherent in rape or is absorbed in the element of force. (People v. Saylan, 130 SCRA 159) Intoxication a victim with intention to kill him is characterized by means employed to weaken the defense. (People v. Ducusin, 53 Phil. 280)

16. Treachery That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against persons, 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. (Art. 14, Par. 16) In parricide, treachery is a generic aggravating circumstance as well as in homicide, if it is not alleged in the information. Even a frontal attack may be considered as such if it was sudden and unexpected so that the victim had no chance to defend himself or evade the blow. However, suddenness of the attack itself does not indicate treachery. It must be sought as a means to insure the execution of the crime and to insure the attacker from the defense forthcoming from the offended party. (People v. Bongo, 26909, Feb. 22, 1974) Treachery must exist at the commencement of the execution of the felony. (US v. Balagtas, 19 Phil. 164) Thus, if the attack begun without treachery but the same continued, and consummated with treachery, it will not be considered. (Q6, 1995 Bar; Q6, 1993 Bar) Treachery absorbs nighttime, abuse of superior strength, uninhabited place, by band, aid of armed men, as well as means to weaken the defense. When treachery rests upon a separate fact, nighttime is not absorbed by treachery. Treachery may co-exist with evident premeditation, as when the accused quarreled with the deceased, threatened to kill him and on the following day did so, when he surreptitiously entered the house of the deceased and without warning, fired at the deceased who was shot unaware. (People v. Mutya, 11255, Sept. 30, 1959) Treachery is inherent in murder by poisoning. (People v. Caliso, 58 Phil. 283) (Q10, 1991 Bar) Any sudden and unexpected attack from behind is clearly treacherous. However, an attack from behind or shooting at a fleeing victim is not necessarily treacherous unless it appears that the method of attack was adopted by the accused deliberately with a special view to the accomplishment of the act without any risk to the assailant from any defense that the party assaulted may make. (People v. Canete, 44 Phil. 478) A shot in the back of the victims head is not conclusive proof of treachery; the manner of aggression or how the act which resulted in the death of the victim had began and developed, must be proved. (People v. Ablao, 183 SCRA 658) But where the persons killed are children of tender years, being 1 year old, 6 years old and 12 years old, the killing is murder even if the manner of the attack was not shown. (People v. Ganohon, 74670, April 30, 1991) In sum, the following requisites must concur for treachery to be present: a. The culprit employed means, methods or forms of execution which directly and specially tend to insure the offenders safet y from any retaliatory act on the part of the offended party. b. That such means, method or manner of execution was deliberately or consciously shown. (People v. Clemente, 21 SCRA 261) (Q3, 1997 Bar) 17. That the means be employed or circumstances brought about which add ignominy (shame or disgrace) to the natural effects of the act. (Art. 14, Par. 17) It is, as the saying goes, adding insult to injury; for instance, raping a married woman in the presence of her husband who was helpless to render any assistance, much less to defend her as he was bound. Ignominy to be appreciated must be inflicted on the victim while he is still alive. Thus, there is no ignominy when the accused sliced and took the flesh from the thighs, legs and shoulder of the victim after killing her with a knife. (People v. Balondo, 27401, Oct. 31, 1969) There is ignominy where the accused in committing the rape used not only the missionary position, but also, the dog position as dogs do, i.e., entry from behind. Ignominy produces moral suffering, while cruelty produces physical suffering. 18. Crime be committed after an unlawful entry. (Art. 14, Par. 18) There is unlawful entry when an entrance is effected by a way not intended for the purpose. Entering through the window is unlawful entry. The unlawful entrance must be made for the purpose of committing a crime like rape or murder. But it is inherent in the crime of trespass to dwelling (US v. Barberan, 17 Phil. 509) and in robbery with force upon things although it may be considered in robbery with violence or intimidation against persons. (Q3, 1997 Bar) Unlawful entry to be aggravating must be for the purpose of entrance and not for the purpose of escape. It must be alleged in the information to qualify the crime to robbery; otherwise, the crime will be theft. (People v. Sunga, 43 Phil. 205) 19. As a means to the commission of a crime a wall, roof, floor, door, or window be broken. (Art. 14, Par. 19) This means is for the purpose of committing a crime. It is inherent in robbery with force upon things. 20. That the crime be committed with the aid of persons under 15 years of age or by means of motor vehicles, motorized watercraft, airships, or other similar means. (Art. 14, Par. 20, as amended by RA 5438) There are two distinct aggravating circumstances. The first shows the greater perversity of the offender in taking advantage of the youthfulness of those persons for criminal purposes. The second is intended to meet the problem created by modern criminal in resorting to faster means of conveyance to commit the crime. The use of motor vehicles facilitates the commission of the crime. If the vehicle is used to facilitate only the escape of the offender it is not aggravating. A scooter and a motorcycle are included under similar means. 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission. (Art. 14, Par. 21) It is essential that the offender inflicted the wounds not necessary for the crime but for the purpose of making the victim suffer more. For cruelty to exist, there must be proof that the acts were perpetrated while the victim was still alive. This circumstance is distinguished from that of ignominy in that cruelty refers to physical suffering, whereas, ignominy is circumscribed to moral suffering. Gagging of the mouth of a 3-year old child with stockings, dumping him with head downward into a box, and covering the box with sacks and other boxes, causing slow suffocation, and as a result the child died, constitutes cruelty. (People v. Lara, 113 SCRA 316) Also, in the crime of rape, where the offender tied the victim to a bed and burnt her face with a lighted cigarette while raping her. (People v. Lucas, 181 SCRA 316) (Q8, 1994 Bar) The fact that 13 stabs wounds were inflicted upon the victim does not constitute cruelty, absent proof that such wounds were inflicted sadistically in a way that made the victim agonize before the fatal blow which snuffed out his life was delivered. (People v. Ferrer, 255 SCRA 19) 22. Under influence of dangerous drugs. (RA 6425, as amended) When a crime is committed by an offender who is under the influence of dangerous drugs, such state shall be considered as a qualifying aggravating circumstance in the definition of a crime and the application of the penalty provided in the Revised Penal Code. (People v. Belgar, 92155, March 11, 1991) 23. Syndicate or Organized Crime Group.

This is a special aggravating circumstance, contemplates of a group purposely formed or organized to engage in criminal activities for gain, not merely the commission of a particular crime by two or more persons who confederated and mutually helped one another in its commission. The existence of a conspiracy does not necessarily imply or carry with it this aggravating circumstance. (People v. Alberca, June 26, 1996) Alternative Circumstances Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission. Specific circumstances: 1. Relationship It 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. (Art. 15) Relationship of stepfather or stepmother and stepson or stepdaughter is included by analogy as similar to ascendant or descendant. (People v. Bersabal, 48 Phil. 439) But relationship between uncle and niece is not included. (US v. Incierto, 15 Phil. 358) Relationship is mitigating in crimes against property. But in theft, estafa and malicious mischief, relationship is exempting. It is considered as an aggravating circumstance in crimes against persons if the offended party is of a higher level than the offender, or when the offender and the offended party are relatives of the same level. (People v. Mercado, 51 Phil. 99) As a rule, relationship is mitigating if the offended party is of a lower level than that of the offender or even exempting if committed by a parent in excessive chastisement. In crimes against chastity, relationship is aggravating whether the offender is of a higher or lower degree than that of the offended party. It is due to the nature of the crime. (People v. Porras, 58 Phil. 578) 2. Intoxication As a general rule, intoxication is a mitigating circumstance. It must be shown that at the time of the commission of the criminal act, the accused has taken such quantity of alcoholic drinks to blur his reason and deprive him of certain degree of control. (People v. Boduso, 450, Sept. 30, 1974) Intoxication to be mitigating must be proved to the satisfaction of the Court. (People v, Noble, 77 Phil. 93) It is aggravating only in two cases: a. Where intoxication is habitual. b. When it is intentional, that is, it is subsequent to the plan of the commission of a felony. For intoxication to be habitual, it is not necessary that the offender should be drunk 7 days a week. It is enough that the offender has acquired the habit of getting drunk, or drinking to excess. If one who had plotted to kill the victim, had drunk wine in order to embolden him in carrying out with his evil plan, drunkenness is not mitigating. (People v. Hernandez, 3391, May 23, 1952) 3. Degree of instruction or education of offender. As a rule, lack of instruction or a low degree of intelligence is considered as a mitigating circumstance in all crimes except in offenses against chastity and property. And also, in the crime of murder, for a man as a rational being, has always been forbidden to kill. (People v. Tabian, 126 SCRA 571) It should be borne in mind that this circumstance is not dependent on the matter of schooling; it depends more on the alertness of the mind, the ability to observe and grasp the significance of happenings around him. If one is unable to write but is highly and exceptionally intelligent or mentally alert that he easily realizes the significance of his act, there is no mitigating circumstance. (People v. Gorospe, 105 Phil. 184) High degree of instruction is aggravating if the offender availed himself or took advantage of it in committing a crime as in the case of a lawyer who commits falsification or a doctor who kills his victim by means of poison. PERSONS CRIMINALLY LIABLE The following are criminally liable for grave and less grave felonies: 1. Principals The following are considered principals: a. Those who take direct part in the execution of the act. They are those who, participating in the criminal design, personally take part in the execution of the felony by acts tending to the same end. As a general rule, all those who participated in a felony are liable as principal when a conspiracy between or among them is established. (People v. Nierra, 96 SCRA 335) b. Those who directly force or induce others to commit the offense. Generally, the induction is done by means of promises or reward or price, sometimes, by the utterance of words. It is necessary that the person uttering the encouraging words must have such a moral influence over the person induced that the words of the other would practically amount to a command; and the words uttered must have been the moving factor that made the actor commit the offense, and that the words uttered were used to procure the commission of the offense. There is a principal by induction or by inducement only if it is shown that the crime was actually committed by another who was induced. (People v. Ong Chiat Lay, 60 Phil. 788) Regarding the induction, it is essential that (1) it be made directly with the intention of procuring the commission of the crime, and (2) that such inducement be the determining cause of the said commission by the one induced. (People v. De la Cruz, 97 SCRA 385) c. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished. (Art. 17) These are persons who, without personally participating in the execution of the felony, nevertheless cooperate with the principals by direct participation by performing another act. The act performed by him must be absolutely essential or indispensable to the extent that without the act performed by him, the crime could not have been committed. It is only when the evidence fails to show the existence of conspiracy when the act of the alleged principals by cooperation must be indispensable. An example of which is the act of lending the boat for the purpose of robbing a person who lived in an islet separated from the mainland by a wide and deep river and accessible only by a water craft. The lender becomes principal by indispensable cooperation. Also, the act of initialing the check is indispensable to the act of defraudation of the depositor as without it the check would not be cashed. (US v. Lim Buanco, 14 Phil. 484) But any cooperation, even done with knowledge of the criminal intent of the accused, if not indispensable to the commission of the crime, will make one liable as an accomplice. So, if the accused knowingly aided the killers by casting stones at the victim (People v. Tatlonghari, 27 SCRA 726) or the act of giving the victim a fist blow after he was stabbed by the other accused (People v. Vistido, 79 SCRA 719) the liability will be that of an accomplice. 2. Accomplices

Those persons, who, not being principals, cooperate in the execution of the offense by previous or simultaneous acts. (Art. 18) The acts performed while material must not be indispensable. Thus, where the accused is proven to have merely assisted in guarding the detained persons to prevent their escape, the accused should be held as an accomplice only since the act performed by him was not indispensable. However, if the person takes part in the conspiracy, he can never be an accomplice. An accomplice has knowledge of the criminal design of the principal and all that he does is to concur with the latter in his purpose, by cooperating in the execution of the crime by previous or simultaneous acts, for the purpose of supplying material or moral aid to the principal in an efficacious way. (People v. Tanzo, 44 Phil. 18) It is also necessary that any wound inflicted by the accomplice must not be the cause of death; if the wound is mortal, the offender would be a principal by direct participation. (People v. Aplegido, 76 Phil. 571) Accomplices are also known as accessories before the fact. Any doubt as to the participation of an individual in the commission of the crime, is always resolved in favor of lesser responsibility. (People v. Abiog, 15310, Oct. 31, 1961) Supposing, while A is choking B, C suddenly appears and stabs B mortally. If A continues choking B after the mortal wound is inflicted, A will be an accomplice. His act is a concurrence in the criminal design of C to kill B. (People v. Tamayo, supra) If, however, he does not do any act after B is stabbed, A has no liability in the killing of B by C. The liability of A and C will then be individual. If there is conspiracy between A and C to kill B, both will be collectively liable as principals for the death of B. A person who assaults a victim already fatally wounded by another is only regarded as an accomplice, unless there was anterior conspiracy. (People v. Cagalingan, 188 SCRA 313) 3. Accessories 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: a. By profiting themselves or assisting the offender to profit by the effects of the crime. Buying a gold watch from another, knowing that it was stolen property, the accessory assists the thief to profit by the effects of the crime. The accessory should materially benefit from the act. 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. (People v. Morales, 71 OG 529) b. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. In the crime of homicide, the body of the crime or the corpus delicti is the fact of the killing, that is, a specific offense in fact committed by someone. (People v. Marquez, 43 OG No. 5) A person who place 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. (People v. Saladino, 3634, May 30, 1961) This is similar to concealing the body of the crime to prevent its discovery. c. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt at the life of the Chief Executive, or is known to be habitually guilty of some other crime. (Art. 19) If the one assisted is the accomplice, there is no accessory. The public officer is an accessory irrespective of the crime committed by the principal provided it is not a light felony. On the other hand, in case of private person, the author of the crime must be guilty of treason, parricide, murder or attempt against the life of the President or is known to be habitually guilty of some other crime. Thus, if a private person assists another who has been guilty of robbery, he cannot be an accessory. An accessory does not participate in the criminal design nor cooperate in the commission of the crime. (People v. Verzola, 80 SCRA 600) If the principal is acquitted because the facts alleged to have been committed are not proved or do not constitute a crime, the accessory is not liable. (US v. Mendoza, 23 Phil. 194) But if the principal is acquitted because of an exempting circumstance, the accessory may be held liable as the crime has been committed. As long as the crime has been committed, even if the principal has not been arrested and convicted, the accessory may be held liable. (People v. Billon, 48 OG 1391) The following are criminally liable for light felonies: 1. Principals 2. Accomplices The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the exception where the accessory profits or assists in the principal to profit from the effects of the crime. (Art. 20) The reason therefor is that if the accessory himself profited or assisted to profit from the effects of the crime the motivating power was not his relationship with the principal but his love for money.

Mitigating Circumstances Posted on January 28, 2010 by attyrcd The mitigating circumstances are based on the degree of perversity or on the diminution of any of the elements of dolo, for instance, minority. Two different mitigating circumstances, such as passion or obfuscation, cannot arise from the same fact. However, where there are other facts, although closely connected with the fact which one circumstance is premised, the other circumstances may be taken into consideration based on another fact. These circumstances may be classified into: 1. Ordinary (generic) mitigating circumstance. The attendance of a generic mitigating circumstance, unless offset by an aggravating circumstance, will lower the imposable penalty only to its minimum. It should be borne in mind that the presence of 2 or more generic mitigating circumstances, provided there is no aggravating circumstance, will lower the imposable penalty by one degree, pursuant to Rule 5 of Art. 64 of the RPC. 2. Privileged mitigating circumstance. The presence of a privileged mitigating circumstance will lower the imposable penalty by one or 2 degrees. The privileged mitigating circumstance cannot be offset by the presence of an aggravating circumstance.

Since a mitigating circumstance is a matter of defense, the accused must prove it with concrete evidence to the satisfaction of the Court. (People v. Malunay, 66 OG 2095) Specific circumstances: 1. Privileged Mitigating Circumstances of Incomplete Justifying or Exempting Circumstances. 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. (Art. 13, Par. 1) In self-defense, defense of relative or defense of stranger, it is essential that unlawful aggression be present; otherwise, there can be no such defense, whether complete or incomplete. (People v. Rosal, 5355, Aug. 31, 1953) 2. Offender is under 18 years of age or over 70 years. That the offender is under 18 years of age or over 70 years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 80 (now amended by PD 603). (Art. 13, Par. 2) This paragraph cover two circumstances, minority and senility (old age). Under Art. 292 of the PD 603, minority is always a privileged mitigating circumstance. As a general rule, senility is a generic or ordinary mitigating circumstance. However, the circumstance may be considered as a privileged mitigating circumstances as when the offender is over 70 years of age, he cannot be sentenced to death (Art. 47) and if at the time of the execution of the death penalty the convict is over 70 years of age, the death penalty cannot be executed. Automatically the penalty is commuted to reclusion perpetua, with the accessory penalties of death (Art. 83) 3. Lack of Intention to Commit so Grave a Wrong. That the offender had no intention to commit so grave a wrong as that committed. (Art. 13, Par.3) This is the effect of praeter intentionem. This mitigating circumstance applies only to offenses resulting in physical or material harm and not to slander. Neither does it apply to cases of imprudence, nor in cases of unintentional abortion. 4. Sufficient Provocation. That sufficient provocation or threat on the part of the offended party immediately preceded the act. (Art. 13, Par. 4) To entitle the offender to the benefit of this mitigating circumstance, it requires the following requisites: a. That the provocation or threat be sufficient, that is, adequate enough to arouse the offender to commit the act . b. That such provocation or threat came from or was given by the offended party. c. That it must have immediately preceded the act complained of. A lawful act cannot constitute a provocation. Thus, the threat of filing a law suit against another is not provocation. Example are ill-treating and abusing the offender by kicking and cursing him (US v. Firmo, 37 Phil. 133) or the infidelity of the wife which made the husband kill her (People v. Marquez, 53 Phil. 260) is sufficient provocation. Immediate means that there is no interval of time between the provocation and the commission of the crime. (People v. Pagal,79 SCRA 570) However, in one case, where the accused went home and returned fully armed and killed the deceased, provocation was considered mitigating. (People v. De Guia, 3731, April 20, 1951) 5. Immediate Vindication of a Grave Offense. That the act was committed in the immediate vindication of a grave offense to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural, or adopted brothers or sisters, or relatives by affinity within the same degrees. (Art. 13, Par.5) The relationship between the offender and the victim of the grave offense sought to be indicted must be legitimate. The grave offense mentioned in this mitigating circumstance need not be a felony or an act punished by law. The act of the victim in eloping with the daughter of the accused is a grave offense to her family. (People v. Diokno, supra) Also, the remarks of the victim in the presence of the guests during a celebration that the accused lived at the expense of his wife, under the circumstances, were highly offensive to the accused or to any other person in his place. (People v. Rosal, 66 Phil. 323) In determining the gravity of the offense, the age of the accused, his social standing, the time and place when the offense was committed and other attendant circumstances are to be considered. 6. Passion or obfuscation That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. (Art 13, Par. 6) The causes must spring from lawful or moral sentiments, not induced by spirit of lawlessness, revenge or immoral passions. However, killing the common-law-wife suprised in flagranti in carnal knowledge with a friend is passion that is mitigating because the offender acted under an impulse cause by the sudden discovery that the woman proved untrue to him. (US v. De la Cruz, 22 Phil. 429) Further, the act must have been committed immediately or shortly after the act causing such passion or obfuscation and the commission of the felony. It is not mitigating if the crime is planned and clearly mediated before execution. (People v. Daos, 60 Phil. 143) Where the victim hurled invectives and challenged a security guard to a fight because the latter refused to allow him to enter the premises, the unsavory remarks and vexatious conduct of the victim was sufficient to ignite the wrath of the guard who shot him twice for the repeated taunts and verbal remarks he made. Obfuscation is mitigating. (People v. Valles, Jan. 28, 1997) There is passion or obfuscation where the accused boxed the victim after he saw the latter boxed his four-year-old-son. The accused did so, momentarily blinded by anger and he lost sight of the fact that his sons adversary was but a nine-year-old boy. (People v. Castro, 117 SCRA 1014) 7. Voluntary Surrender and Voluntary Plea of Guilty. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. (Art. 13, Par. 7) There are 2 mitigating circumstances, distinct and apart from each other, that may be considered in favor of the defendant. The requisites of voluntary surrender are: a. The offender has not been actually arrested. It may be present if made after the issuance of a warrant of arrest but before actual arrest is made. (People v. Yecla, 68 Phil. 740) The offender must surrender himself and not the weapon which he used in committing the crime, and the surrender must be for the crime of which he is charged. (People v. Semanada, 103 Phil. 790) If the accused gave himself up to the police when he was served the warrant for his arrest, such surrender is not mitigating. (People v. Agag, 130 SCRA 274) b. The surrender must be made to a person in authority or his agent. c. It must be voluntarily made.

For the mitigating circumstance of voluntary surrender to be appreciated, the same must be spontaneous in such a manner that it shows the interests of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture. (People v. Sakam, 61 Phil. 27) (Q3, !996 Bar; Q5 1992) Two years is too long a time to consider the surrender as spontaneous. (People v. Ablao, 183 SCRA 658) (Q5, 1997 Bar) Where the offender went to the municipal building because he was a suspect in the killing but not to own responsibility for the killing, such fact is not tantamount to voluntary surrender as a mitigating circumstance. Although he admitted his participation in the killing, he tried to avoid responsibility by claiming self-defense which however he was not able to prove. (People v. Mindac, 83030, Dec. 14, 1992) Voluntary surrender is mitigating where the offender, accompanied by his uncle, went to the police station and spontaneously and unconditionally place himself at the disposal of the authorities although he remained silent (since it is his constitutional right to remain silent). (People v. Gracia, Nov. 14, 1996) A plea of guilty is not only an admission of all the material facts alleged in the complaint or information but also that he is guilty of the offense defined by the facts. Its requisites are: a. The plea to be spontaneous. b. Made in open court. The plea of guilty must be made at the earliest opportunity, that is , before the competent court that is to try the person making the confession. (People v. De la Pena, 66 Phil. 451) An extra-judicial confession is not mitigating. (People v. Undong, 66 SCRA 386) c. Made before trial begins, that is, prior to the presentation of the evidence by the prosecution. (Q5, 1997 Bar) Mere offer to plead guilty to homicide under a charge of murder is not sufficient. However, it is believed that if the offer to plead guilty to homicide is predicated on the allegation that the killing was not attended by any qualifying circumstance and the trial court so found, thus convicting the accused only of homicide, there is no valid reason why the accused should not be given the benefit of the circumstance. (People v. Limosnero, 147 SCRA 232) In capital offense, voluntary plea of guilty does not mean admission of the material allegations in the information, including the circumstances of the crime. The precise purpose of the automatic review in capital offenses is to open the entire record for scrutiny so that a human life will not be lost through a miscarriage of justice by a misappreciation of the evidence. (People v. Abre, 112 SCRA 83) 8. The offender is Deaf and Dumb or Blind. 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 his fellow beings. (Art. 13, Par. 8) It is essential that his physical defect have some relation to the crime committed by him. Thus, if a person is charged with acts of lasciviousness, the fact that he has only one arm will not entitle him to the benefit of the circumstances. (Q18, 1993 Bar) 9. Illness that Diminishes the Exercise of Will Power. Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his acts. (Art. 13, Par. 9) The offender actually knows that his act is unlawful, that it can cause harm to another, but because of the illness he is suffering, he cannot control himself. Thus, a person who has kleptomania the urge to take anything may commit theft, knowing it to be a crime, but cannot control himself. Other examples are (a) a mother who killed her child after delivery as she was suffering under the influence of a puerperal fever (Dec., Sup. Ct. of Spain, Sept. 28, 1897); (b) acute neurosis that made the offender ill-tempered and easily angered (People v. Carpenter, 4168, April 12, 1944) and (c) feeblemindedness. (People v. Formigenes, 87 Phil. 658) 10. Analogous Mitigating Circumstances. And, finally, any other circumstance of a similar nature and analogous to those above mentioned. (Art. 13, Par. 10) Examples: a. Over 60 years old and with failing eyesight analogous to one over 70 years. (People v. Reantillo, 301, May 27, 1938) b. Jealousy similar to passion or obfuscation. (People v. Ubengen, 36 OG 763) c. Voluntary restitution of property similar to voluntary surrender. (People v. Amante, 65 OG 5618) d. Extreme poverty similar to incomplete justifying circumstance of state of necessity.(People v. Macbul, 74 Phil. 436)

Justifying and Exempting Circumstances Posted on January 28, 2010 by attyrcd Justifying circumstances are those wherein the acts of the actor are in accordance with law and, hence, he incurs no criminal and civil liability. The justifying circumstances by subject are as follows: 1. Self-defense Anyone who acts in defense of his person or rights. (Art. 11, Par. 1) The scope included self-defense not only of life, but also of rights like those of chastity, property and honor. It has also been applied to the crime of libel. (People v Chua Chiong, 51 OG 1932) Its elements are: a. Unlawful aggression Aggression is considered unlawful when it is unprovoked or unjustified. There must be real danger to life or personal safety. An imminent danger of aggression, and not merely imaginary, is sufficient. A slap on the face is actual unlawful aggression. (Dec., Sup. Ct. of Spain, March 8, 1887) There is no unlawful aggression exists in a case of an agreed fight. To constitute an agreement to fight, the challenge must be accepted. (People v. Del Pilar, 44 OG 596) Unlawful aggression may no longer exist if the aggressor ran away after the attack. (People v. Alconga, 78 Phil. 366) If the aggression has ceased, the one defending himself has no right to inflict any further injury to his assailant. (Q11, 1993 Bar) Mere oral threat to kill, unaccompanied by any unequivocal act clearly indicative of the intent to carry out the threat, does not amount to unlawful aggression. (People v. Binondo, 97227, Oct. 20, 1992) The mere cocking of an M-14 rifle by the victim, without aiming the firearm at any particular person is not sufficient to conclude that the life of the person (Vice-Governor) whom the accused was allegedly protecting, was under actual threat or attack from the victim. There is no unlawful aggression. (Almeda v. CA, March 13, 1997) b. Reasonable necessity of the means employed to prevent or repel it.

The rule stand ground when in the right applies when a person is unlawfully assaulted and if the aggressor is armed with a weapon. (US v. Domen, 37 Phils. 57) Whether the means employed is reasonable or not it will depend upon the kind of weapon of the aggressor, his physical condition, character, size and other circumstances as well as those of the person attacked and the time and place of the attack. (People v. Padua, 40 OG 998) The instinct of self-preservation more often than not is the moving power in mans action in defending himself. (People v. Artuz, 71 SCRA 116) c. Lack of sufficient provocation on the part of the person defending himself. A person may be justified in causing injury to another in defense of his property (fencing off the house of the accused) even if there was no attack against his person. To hold otherwise would render nugatory the provisions of circumstance No. 1 which recognizes the right of an individual to defend his rights, one of which is to own and enjoy his property. (People v. Narvaez, 121 SCRA 389) Even assuming that the victim was scaling the wall of the factory compound to commit the crime inside the same, shooting him is never justifiable, even admitting that such act is considered unlawful aggression on the property rights. In the instant case, the second element is absent considering that the victim was unarmed. There is therefore an incomplete selfdefense. (Q6, 1996 Bar; Q4, 1990 Bar) To be entitled to a complete self-defense of chastity, there must be an attempt to rape. (People v. Jaurigue, 76 Phil. 174) When a person is libeled, he may hit back with another libel, which, if adequate, will be justified. Once the aspersion is cast, its sting clings and the one thus defamed may avail himself of all necessary means to shake it off. (People v. Chua Hong, 51 OG 1932) 2. Defense of Relative Any one who acts in defense of the person or rights of his spouses, ascendants, descendants, or legitimate or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, and in case the provocation was given by the person attacked, that the one making the defense had no part therein. (Art. 11, Par. 2) Even if two persons agreed to fight, and at the moment when one was about to stab the other, the brother of the latter arrived and shot him, defense of relative is present as long as there is an honest belief that the relative being defended was a victim of an unlawful aggression, and the relative defending had no knowledge of the agreement to fight. (US v. Esmedia 17 Phil. 280) 3. Defense of Stranger. Anyone who acts in defense of the person or rights of a stranger and that the person defending be not induced by revenge, resentment, or other evil motive. (Art. 11, Par. 3) A person who struggled with the husband who was attacking his wife with a bolo for the possession of the bolo and in the course of the struggle, wounded the husband, was held to have acted in defense of a stranger. (People v. Valdez, 58 Phil. 31) 4. State of Necessity Any person who, in order to avoid an evil or injury, does an act which causes damage to another. (Art. 11, Par. 4) Its requisites are: a. The evil sought to be avoided actually exists. b. The injury feared be greater than that done to avoid it. c. There be no other practical and less harmful means of preventing it. This is the only justifying circumstances wherein civil liability may arise but this is borne by the pers on benefited by his act. The state of necessity exists when there is a clash between two unequal rights, the lesser right giving way to the greater right. An accused was acquitted of the crime of slander by deed, when she eloped with another man after all wedding preparations with the offended party were made, since there was a necessity on the part of the accused to avoid a loveless marriage with the offended party. (People v. Hernandez, 55 OG 8465) In a case when in saving the life of the mother, the doctor sacrificed the life of the unborn child, is the attending physician criminally liable? No, because his acts are justified under this Article (State of necessity). However, in mercy killing where the doctor deliberately turned off the life support system costing the life of the patient, the doctor is criminally liable. Euthanasia is not a justifying circumstance in our jurisdiction. (Q3, 1990 Bar) 5. Fulfillment of duty Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. (Art. 11, Par. 5) The injury caused or the offense committed is the necessary consequence of the due performance of such right or office. The killing by a policeman of an escaping detention prisoner is presumed to be committed in the performance of his official duties. But shooting a thief who refused to stop inspite of the order of the accused will make him liable as he exceeded fulfillment of his duty. (People v. Bentres, 49 OG 4919) Also, under the doctrine of self-help, the law justifies the act of the owner as lawful possessor of a thing in using such force as is reasonably necessary for the protection of his proprietary or possessory right. (Art. 429, Civil Code) With respect to the wounding of the stranger during the commission of crime of death under exceptional circumstances (Art. 247), the defense of lawful exercise of a right is a justifying circumstance. (Q14, 1991 Bar) 6. Obedience to superior order Any person who acts in obedience to an order issued by a superior for some lawful purpose. (Art. 11, Par. 6) It is required that the order in itself must be lawful; that it is for a lawful purpose; and that the person carrying out the order must also act within the law. But even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable. (Nassif v. People, 78 Phil. 67) This is due to a mistake of fact committed in good faith. Even if the order is illegal, the subordinate may still invoke the exempting circumstances of compulsion of irresistible force or acting under the impulse of an uncontrollable fear of an equal or greater injury. Exempting circumstances are those wherein there is an absence in the agent of the crime of all the condition that would make an act voluntary and, hence, although there is no criminal liability, there is civil liability. In exempting, the crime is committed but there is absent in the person of the offender any element of voluntariness, and so he is not criminally liable but is civilly liable except in the exempting circumstances ofaccident and lawful or insuperable cause. 1. Imbecility and the insanity. An imbecile is one who may be advanced in years, but has a mental development comparable only to children between 2 and 7 years of age. An insane is one who suffers from a mental disorder in such degree as to deprive him of reason. The insane person may be held criminally liable if he acted during a lucid interval.

When the imbecile or an insane person has committed an act which the law defines as a felony, 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. (Art. 12, Par. 1) The test of imbecility or insanity is complete deprivation of intelligence in the commission of the act, that is, that the accused acted without the least discernment. (People v. Aldemeta, 55033, Nov. 13, 1986) The evidence regarding insanity must refer to the very moment of its execution and must be proven by clear and positive evidence. (People v. Basco, 44 Phil. 204) Even if the offender is not an imbecile nor insane, if he is completely deprived of the consciousness of his acts when he commits the crime, he is entitled to exemption for a cause analogous to imbecility or insanity. So, one committing a crime while dreaming during his sleep (People v. Taneo, 58 Phil. 255) or in a state of somnambulism or sleep walking (People v. Gimena, 55 Phil. 604) is not criminally liable as the acts are embraced within the plea of insanity. 2. Minority A person under nine (9) years of age. (Art. 12, Par. 2) In this case, the minor is completely devoid of discernment and are irresponsible. A persons over nine (9) years of age but under fifteen (15), unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 [Repealed by PD 603]. (Art. 12, Par. 3) Discernment is the mental capacity to determine not merely the difference between right or wrong, but is also involves the capacity to comprehend the nature of the act and its consequences. The age of the minor is computed up to the time of the commission of the crime charged, not up to the date of trial.(People v. Navarro, 51 OG 409) If the minor is exempt from criminal liability, he shall be committed to the care of his or her father or mother or nearest relative or family friend in the discretion of the court and subject to its supervision. (Art. 189, PD 603, as amended) Minority is always a privileged mitigating circumstance under the RPC and lowers the prescribe penalty by one or two degrees in accordance with Article 68 of the Code. But like any modifying circumstance, it is not availing to those accused of crimes mala prohibita. (People v. Mangusan, 189 SCRA 624) However, this privileged mitigating circumstance may be appreciated in violations of the Dangerous Drugs Act (RA 6425), the penalty to be imposed should not be lower than prision correccional. (People v. Simon, 93128, July 29, 1994) 3. Accident Any person who, while performing a lawful act with due care, causes injury by mere accident without fault or intention of causing it. (Art. 12, Par. 4) Its requisites are: a. The offender must be performing a lawful act. b. With due care. c. Causes injury to another by mere accident. d. Without fault or intent of causing it. An accident is any happening beyond the control of a person the consequences of which are not foreseeable. If foreseeable, there is fault or culpa. An accidental shooting due to legitimate self-defense is exempting. (People v. Trinidad, 49 OG 4889) In performing a lawful act with due care by snatching away the balisong in defense of stranger, the balisong flew with force that it hit another person who was seriously injured, Tommy is exempted from criminal liability because of mere accident. (Q2, 1992 Bar) Under this exempting circumstance, there is no civil liability. 4. Compulsion of irresistible force. Any person who acts under the compulsion of irresistible force. (Art. 12, Par. 5) The force referred to here must be a physical force, irresistible and compelling and must come from a third person. It cannot spring primarily from the offender himself. (People v. Fernando, 33 SCRA 149) Thus, if a person was struck with the butts of the guns of those who killed another to compel him to bury their victim, he is not liable as an accessory because he acted under the compulsion of an irresistible force. (US v. Caballeros, 4 Phil. 850) The force must be irresistible to reduce him to a mere instrument who acts not only without will, but against his will. The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. The compulsion must be one of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. (People v. Nalipanat, 145 SCRA 483) 5. Impulse of uncontrollable fear Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. (Art. 12, Par. 6) Uncontrollable fear is an impulse coming from within the person of the actor himself. The actor acts not against his will but because he is engendered by the fear. The threat producing the insuperable fear must be grave, actual, serious and such kind that the majority of men would have succumbed to such moral compulsion. (Feria and Gregorio, Revised Penal Code, Vol. 1, 224) Thus, 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. (US v. Exaltacion, 3 Phil. 339) 6. Insuperable or lawful cause. Any person who fails to perform an act required by law, when prevented by some lawful insuperable cause. (Art. 12, Par. 7) This is a felony by omission. The failure of a policeman to deliver the prisoner lawfully arrested to the judicial authorities within the prescribed period because it was not possible to do so with practicable dispatch as the prisoner was arrested in a distant place would constitute a non-performance of duty to an insuperable cause. (US v. Vicentillo, 19 Phil. 118) 7. Absolutory causes. These are instances which actually constitute a crime but by reason of public policy and sentiment, it is considered to be without liability and no penalty is imposed, like: a. Spontaneous desistance at the attempted stage of a felony . (Art. 6, Par. 3) b. Accessories exempt from criminal liability. (Art. 20) c. Death or physical injuries inflicted under exceptional circumstances .`(Art. 247) d. Enter a dwelling for the purpose of preventing serious harm or service to humanity . (Art. 280) e. Exempt from theft, swindling or malicious mischief by relationships. (Art. 332)

f. Marriage of the offended party in seduction, abduction, acts of lasciviousness and rape . (Art. 244) g. Instigation takes place when a peace officer induces a person to commit a crime. Without the inducement, the crime would not be committed. Hence, it is exempting by reason of public policy. The person instigating must not be a private person as he will be liable as a principal by inducement. (Art. 17, Par. 2) In this case, the criminal intent (mens rea) originates in the mind of the instigator and the accused is lured into the commission of the offense charged in order to prosecute him. However, entrapmentis the employment of such ways and means devised by a peace officer for the purpose of trapping or capturing a lawbreaker. With or without the entrapment, the crime has been committed already. Hence, entrapment is neither exempting or mitigating. The idea to commit the crime originated from the accused, thus the actor is criminally liable. The difference between entrapment and instigation lies in the origin of the criminal intent. In entrapment mens rea originates from the mind of the criminal. The idea and resolve to commit the crime comes from him. In instigation, the law officer conceives the commission of the crime and suggests it to the accused, who adopts the idea and carries it into execution. (Araneta v. CA, 46638, July 9, 1986) A buy-bust operation is a form of entrapment employed by peace officer to trap and catch a mal efactor in flagrante delicto, commonly involving dangerous drugs. (People v. Del Pilar, 188 SCRA 37) Where a person had a ready supply of dangerous drugs for sale to anyone willing to pay the price asked for, although he might not have the drug with him at the time of the initial transaction, the situation supports an entrapment, not an instigation. The fact that the accused returned with the drugs shortly after the transaction was entered into, shows that he had ready contacts with the supplier from whom he could readily get the drug. If the accused were merely instigated to look for the drug, it would have taken him a considerable length of time to look for a source. (People v. Estevan, 196 SCRA 34) (Q8, 1992 Bar) An example of instigation is given in Q9, 1995 Bar as follows: Suspecting that Juan was a drug pusher, SPO2 Mercado gave Juan a P 100-bill and asked him to buy some marijuana cigarettes. Desirous of pleasing SPO2 Mercado, Juan went inside the shopping mall while the officer waited at the corner of the mall. After 15 minutes, Juan returned with ten sticks of marijuana cigarettes which gave to SPO2 Mercado who thereupon placed Juan under arrest and charged him with violation of the Dangerous Drugs Law by selling marijuana. Is Juan guilty of any offense? Juan cannot be charged of any offense punishable under the Dangerous Drugs Act. Although Juan is a suspected drug pusher, he cannot be charged on the basis of a mere suspicion. By providing the money with which to buy marijuana cigarettes, SPO2 Mercado practically induced and prodded Juan to commit the offense of illegal possession of marijuana. Set against the facts, instigation is a valid defense available to Juan.