CHAPTER 14: AGGRAVATING CIRCUMSTANCES

Aggravating circumstances are those which show greater perversity of the offender hence they have the effect of imposing the maximum with that provided for by law. May be distinguished in the following manner from mitigating circumstance 1. The list in Article 13 includes analogous circumstances showing liberality of the

Must be alleged in the information, otherwise it cannot be considered against the offender as such because it will violate the right of the accused to be informed of the nature of the accusation against him since qualifying circumstances changes the nature of the offense. This is beside the fact that the Revised Rules on Criminal Procedure new requires specification of qualifying circumstances in the information.

Must be proven as conclusively as the guilt of the offender because in changes the nature of the offense with the corresponding increase in the penalty. For instance, homicide is penalized with reclusion temporal (20 years maximum). With one qualifying circumstance, it becomes murder penalizd with reclusion perpetua (20

law in favor of the accused in article 14, 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 degree in the Immoral motive, 3.

years maximum) this the penalty is doubled. SPECIAL OR SPECIFIC AGGRAVATING CIRCUSMTANCE WHICH APPLY TO A PARTICULAR FELONY. They do not change the character of the offense charges but. 4. 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) Where one of the aggravating circumstances has been used as a qualifying circumstance, the others will be deemed generic. Since treachery has already been used to qualify the crime as murder, the evident

while it may find support in evidence may not be considered as it does not gall under any aggravating circumstance enumerated in article 14 of the rpc.

4 kinds of aggravating circumstances 1. generic circumstance which have the effect of the penalty being imposed in the maximum period. Noe that penalty prescribed in Book II of the cose is the max imposable apply to all felonies can be offset by an ordinary mitigating circumstance prior to the amendment of the rules of criminal procedure, qualifying circumstance not alleged in the Information but proved may be appreciated as a generic aggravating circumstancebut when revised under Sec. 8, rule 110 be specifically included in the aggravating circumstance. 2. Qualifying circumstances Cannot be offset by any mitigating circumstance Change the nature of the crime and the designation of the offense.

premeditation should be considered as only a generic aggravating circumstance (People v Fabios October 1992) Conspiracy is not aggravating, it is also not qualifying, it is mode or manner of acquiring collective liability. The act of one is the act of all. The presence of conspiracy cannot per se qualify the killing to murder.

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Chapter 4: CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL LIABILITY ARTICLE 14. AGGRAVATING CIRCUMSTANCES

CIRCUMSTANCE 1. That advantage be taken by the offender of his position

BASIS Greater perversity as shown in their personal circumstance;Means used to secure the commission of the crime

REQUISITES 1. 2. Offender is a public officer Must his influence, ascendancy, and prestige which his office gives him as a means by which he commences the crime

APPLICATION There must be proof that the accused took advantage of his public position Present when act done by offender is connected with the exercise of his official duty or function Failure in official duties is tantamount to abusing of office taking advantage of public position the public officer must use influence, prestige or ascendency which his office gives him as a means but which he realizes his purpose. Public authority - person in authority; a public officer who is directly vested with jurisdiction, that is a public officer who has the power to govern and execute the laws.

NOT APPLICABLE TOo When a public officer commits a common crime independent of his official functions and does acts not connected with the duties of his office, he should be punished as a private individual without this aggravating circumstance (US v Dacuycuy) Not aggravating when it is an integral element of, or inherent in, the offense. Not aggravating if accused could have perpetrated the crime without occupying police position. Not applicable to a crime commited in the presence of an AGENT ONLY. Agent of a person in authority any person while by direct provision of law or by election or by appointment by competent authority, is charged with maintenance of public order and the protection and security of life and property. (any persons who comes to the aid of persons in authority)

RECKONING QUESTION: Did the accused abuse his office in order to commit a crime?

o o

2. That the crime be committed in contempt of or with insult to the public authorities

Greater perversity as shown by his lack of respect for public authorities

1. 2.

3. 4.

Public authority is engages in the exercise of his functions He who is engaged in the exercise of the said functions is NOT the person against whom the crime is committed The offender knows him to be a public authority His presence has not prevented the offender from committing the criminal act. *essential*

o o

3. That the act be committed (1) with insult or in disregard of the respect due the offended party on the amount of his (a) rank, (b) age, (c) sex, or (2) that it be committed in the dwelling in the offended party, if the latter has not given provocation

Greater perversity of the offender, as shown by the personal circumstance of the offended party and the place of commission of the crime. *** When all the four aggravating circumstances are present they should be considered as one aggravating circumstance only.

1.) THERE SHOULD BE (proof of fact that there is ) DELIBERATE INTENT to INSULT OR DISREGARD with RESPECT DUE TO THE OFFENDED party on the account of ---RANK OF OFFENDED PARTY 1.) There must be a difference in the social condition of the offender and the offended party or high social position or standing

There must be evidence that in the commission of the crime, the accused deliberately intended to offend or insult the sex, age of the offended party. *provided that there must be no provocation coming from the offended party.

It should be clearly demonstrated that the accused deliberately intended to act with insult or with 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 words against the victim. Rank a graded official standing or social

It is absorbed in the crime of direct assault since rank is an element thereof.

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position or station

CIRCUMSTANCE 3. That the act be committed (1) with insult or in disregard of the respect due the offended party on the amount of his (a) rank, (b) age, (c) sex, or (2) that it be committed in the dwelling in the offended party, if the latter has not given provocation

BASIS

REQUISITES AGE OF OFFENDED PARTY 1.) When the offended person, by reason of age, is old enough to be the father of the offender.

APPLICATION Circumstance of lack of respect due to age applies in cases where the victim is of tender age as well as of old age. When it comes to aggravating circumstances you do not take them in increasing the penalty when they are inherent in the commission of a crime. Determine first what crime is committed before considering such circumstance. Absorbed in treachery When a person compels a woman to go to his house against her will, the crime coercion with the aggravating circumstance of disrespect to sex is committed. (US v Quevengco) Killing a female relative of the offended in retaliation (People v Dayug) Direct assault upon a lady teacher.

NOT APPLICABLE TO o o NOT aggravating in robbery with homicide because it is a crime against property Cant be considered in the absence of evidence that the accused deliberately intended to offend or insult the age of victim

SEX OF OFFENDED PARTY 1.) Refers to the female sex, not the male sex.

o o

When the offender acted with passion and obfuscation this being the condition of mind, he could not have been conscious that his act was done with disrespect to the offended party. When there exists a relationship between the offended party and the offender When the condition of being a woman is indispensible in the commission of the crime thus, in (a) parricide, (b) rape, (c) abduction or (d) seductions, SEX is not aggravating. If the following requisites of provocation are present then dwelling is not aggravating. 1. Given by the owner of the dwelling 2. Sufficient 3. Immediate to the commission of the crime 4. And close relation bet. Offender and offended NOT AGGRAVATING when both offender and offended parties are occupants of the same house. When it is inherent in the crime committed: Robbery by the use of force on things. When the it is a store/house at the same time. In adultery, when paramour also lives there.

Greater perversity of the offender, as shown by the place of commission of the offense. *** Ones dwelling place is a sanctuary worthy of respect

2.) THAT THE CRIME BE COMMITTED IN THE DWELLING OF THE OFFENDED PARTY 1.) Crime was committed in ones dwelling 2.) offended party must not give provocation

Dwelling must be a building or structure, exclusively used for rest and comfort. INCLUDES: a.) Dependencies b.) The foot of the staircase and enclosure under the house. Even if provocation exists, that it was not immediately prior to the commission of the crime. Even if the offender did not enter the dwelling, the circumstance applies it is enough that the victim was attacked inside his own house by the assailants own divisive means Aggravating in abduction or illegal detention. Even if the victim was just a lessee, bedspacer or a boarder. NOT TRANSIENT. In adultery, when committed in the dwelling of husband.

o o o

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CIRCUMSTANCE 4. That the act be committed with (1) abuse of confidence or (2)obvious ungratefulness

BASIS Greater perversity of the offender, as shown by the means and ways employed. *** There are TWO aggravating circumstances in this paragraph

REQUISITES ABUSE OF CONFIDENCE 1.) 2.) Offended party had trusted the offender Offender abused such trust by committing a crime against the offended party Abuse of confidence facilitated

APPLICATION A 9-month old child killed by an amah (househelp) is a grave abuse of confidencethe killer of the child is the domestic servant of the family and the deceased childs amah Inherent in some felonies: malversation, qualified theft, estafa by conversion or misappropriation. Confidence between offender and offended must be immediate and personal Where the accused killed his father-in-law in whose house he lived and who partially supported him. Where accused had free access to the house of the victim who was very kind to him, his family and who helped him solve his problems. The place of the commission of the felony (par 5), if it is in Malacanang palace or church, is aggravating, regardless of whether the state or official or religious functions are being held. The mere presence alone of the Chief Executive (need not be in the palace) to constitute such aggravating circumstance. ^ and even if such public authority is not engaged in the discharge of his duties where the crime is committed. BUT as regards to the place where the public authorities are engaged in the discharge of their duties, there must be some performance of public functions. Offender MUST have intention to commit a crime when he entered the place. o

NOT APPLICABLE TO The confidence must facilitate the commission of the crime, the culprit taking advantage of offended partys belief that the former would not abuse said confidence. Betrayal of confidence is not aggravating because the victim could resist the commission of the crime.

3.)

OBVIOUS UNGRATEFULNESS 1.) That the act must be manifest and clear with obvious ungratefulness

The mere fact, however, that the accused and the offended party live in the same house is not in itself enough to hold that there was present abuse of confidence where the house was not the property of the offended party.

5. That the crime be committed in the palace of the Chief of 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.

Based on the greater perversity of offender, as shown by the place of the commission of the crime, which must be respected.

Requisite of par 5 as distinguished from paragraph 2 ( contempt of insult to public authorities) 1. In BOTH, the public authorities are in the performance of their duties UNDER PAR 5. 2. The public authorities who are in the performance of their duties MUST be in their office Public authority MAY be the offended party UNDER PAR 2. Public authorities are performing their duties outside of their office.

Cemeteries are not such a place, however respectable they may be, are not dedicated to the worship of God.

The public authority should not be the offended party

3.

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CIRCUMSTANCE 6. That the crime be committed (1) in the nighttime, or (2) in an uninhabited place, or (3) by a band, whenever such circumstance may facilitate the commission of the offense.

BASIS Based on the time and place of the commission of the crime and the means and ways employed *** Can be considered separately when their elements are distinctly perceived and can subsist, revealing a greater degree of perversity

REQUISITE When nighttime, uninhabited place or band is aggravating 1.) 2.) When it facilitated the commission of the crime; or When especially sought for by the offender to insure the commission of the crime of for the purpose of impunity When the offender took advantage thereof for the purpose of impunity.

APPLUCATION NIGHTTIME: the period beginning at the end of dusk and ending at dawn. Sunset to Sunrise By and itself, not an aggravating circumstance It becomes so only when it is especially sought by the offender, or taken advantage of by him to facilitate the commission of the crime or to insure immunity from capture. For the purpose of impunity means to prevent the accuseds being recognized, or to secure himself against detection and punishment. The lighting of a matchstick or use of flashlight does not negate the aggravating circumstance of nighttime

NOT APPLICABLE TO To be aggravating, the prosecution must show that the accused purposely sought to commit the crime at nighttime in order to facilitate the achievement of crime, prevent discovery, or evade capture. MUST BE ALLEGED IN THE INFORMATION Not aggravating when crime began at daytime when the crime was a result of a succession of acts which took place within the period of 2 hrs., commencing at 5 pm and ending at 7pm. When darkness of the night was merely incidental to the crime committed. NOCTURNITY is not aggravating where there is no evidence that the accused has purposely sought the cover of the darkness of the night to commit the crime; nor is there evidence that nighttime facilitated the commission of the crime, aside from the fact that the scene of the crime was illuminated.

3.)

IN ADDITION TO THE ABOVE REQ.-- NIGHTTIME Commission of the crime must begin and be accomplished in the nighttime. The offense must be committed in the darkness of the night.

o o

UNINHABITED PLACE SOLITUDE MUST BE SOUGHT TO BETTER ATTAIN THE CRIMINAL PURPOSE It must appear that the accused sought solitude of the place where the crime was committed, in order to better attain his purpose. The offenders must choose the place as an aid either (1) to an easy and uninterrupted accomplishment of their criminal designs. (2) To insure concealment of the offense, that he might thereby be better secured against detection and punishment. BY A BAND: What is a band? At least 4 malefactors (with at least 1 who is armed) MUST act together in the commission of

UNINHABITED PLACE: is one where there are no houses at all, a place at a considerable distance from town, or where the houses are scattered at a great distance from each other. Should be determined, not by the distance of the nearest house to the scene of the crime, but whether or not in the place of its commission, there was reasonable possibility of receiving some help. Aggravating where the felony was perpetrated in the open sea (no help nearby) Occupants are the only house in the place

If offended party was casually encountered by the accused and the latter did not take advantage that it facilitates the commission of the crime. Although the house nearest to the dwelling of the victim was about a kilometer away, if the defendants did not select the place either to better attain their object without interference or to secure themselves against detection and punishment.

BY A BAND: Abuse of superior strength and use of firearms, absorbed in aggravating circumstance of by a band

If one of the four armed persons is a principal by inducement, they do not form a band. Connotes that he has no DIRECT PARTICIPATION in the perpetration thereof.

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the crime ***EXPRESS CONSPIRACY NOTE: All the armed men, at least 4 in number, must take direct part in the execution of the act constituting the crime (art 17, par 1 RPC)

By a band is inherent in brigandage By a band is aggravating in robbery with homicide. Aggravating in crimes against property or against persons or in the crime of illegal detention or treason.

o 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. Has reference to the time of the commission of the crime. The debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune to despoil them. Based on the means and ways of committing the crime 1.) 1.) 2.) There be a state of calamity of epidemic or misfortune The offender MUST take advantage of the calamity or misfortune in committing the crime. Chaotic condition as an aggravating circumstance: distress similar to calamity, shipwreck, earthquake or epidemic o o

When nighttime, uninhabited place or by a band did not facilitate the commission of the crime, was not especially sought for or was not taken advantaged of: NOT AGGRAVATING When casual meeting turned into heated argumentation and anger and did not afford the offenders any advantage not aggravating Not applicable to crimes of chastity Hence, chaotic condition after liberation is not included in this paragraph. BUT in the case of People v Penjan, it was considered chaotic condition from the liberation of San Pablo.

PAR 7 The crime is committed ON THE OCCASION of a calamity or misfortune

PAR 12 The crime is committed BY MEANS OF ANY such acts involving great waste or ruin. Not aggravating when: o Both the attacked and the attacking party were EQUALLY ARMED. o Accused as well as those who cooperated with him in the commission of the crime acted under the same plan and the same purpose for that would have constituted -> conspiracy to commit a crime.

8. that the crime be committed with the aid of (1) armed men, or (2) persons who insure or afford impunity.

2.)

That armed men or persons took part in the commission of the crime, directly or indirectly That the accused availed himself of their aid or relief upon them when the crime was committed. BY A BAND (PAR 6.)

WITH THE AID OF ARMED MEN ( PR 8) Is present even if one of the offenders merely relied on their aid, for actual aid is not necessary. DID NOT INITIATE, JUST AIDED PRINCIPAL PERPETRATOR No required number of malefactors

Requires more than 3 malefactors who shall have acted together in the commission of an offense ALL PRINCIPALS

RULE FOR APPLICATION: The casual presence of armed men near the place where the crime was committed DOES NOT CONSTITUTE an aggravating circumstance when it appears that the accused DID NOT avail himself of their AID or RELY upon them to commit the crime. Aid of armed men is absorbed by employment of band - NOTE: if there are four armed men, aid of armed men is absorbed in employment of a band. If there are 3 armed men or less, aid of armed men may be the aggravating circumstance. AID OF ARMED MEN = includes ARMED WOMEN.

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CIRCUMSTANCE 9. That the accused is a RECIDIVIST

BASIS Greater perversity of the offender, as shown by his inclination to crimes *** Who 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 for another crime embraced in the same title of the code. There must be two convictions.

REQUISITES 1.) 2.) 3.) That the offender is on trial for an offense; That he was previously convicted by final judgment of another crime; That both the first and the second offenses are embraced in the same code. That the offender is convicted of the new offense.

APPLICATION At the time of his trial for one crime It is meant to include everything that is done in the course of the trial, from arraignment until after sentence is announced by the judge in open court. final judgment executory; meaning 15 days have elapsed from its promulgation without the convict appealing the conviction Already final when offender started serving sentence He expressly waived hi right to appeal He applied for probation. (he is effectively waiving his motion for reconsideration and appeal) must be embraced in the same title code robbery and theft are embraced in title ten, referring to crimes against property. Homicide and physical injuries are embraced in Title Eight, referring to crimes against persons. There is recidivism even if the lapse of time between two felonies is more than 10 years. PARDON does not obliterate the fact that the accused was a recidivist; but AMNESTY extinguishes the penalty and its effects Reitaracion or habituality it is essential that the offender be previously punished, that is, he has served sentence, for an offense in which the law attaches, or provides for an equal or greater penalty than that attached by law for the second offense, or for two or more offense, in which the law attaches a lighter penalty. Hence, even if the accused served the penalty the prision mayor in its minimum period and is not convicted of an offense for which the penalty of prision mayor max is imposed, there is still habituality, PROVIDED that the penalty attached to the 2 offenses is prision mayor in its full extent.

NOT APPLICABLE TO o No recidivism if the subsequent conviction is for an offense committed before the offense involved in the prior conviction. When one offense is punishable by an ordinance or special law and the other by the Revised Penal Code, the two offenses are not embraced in the same title of the Code.

4.)

*** Controlling: time of the trial; not the time of the commission of the crime. Time between first and 2nd offense no prescription period for lapse of time.

RECIDIVISM 1. Requires previous conviction with final judgment 2. The offense falls under the same title 3. No requirement as to penalty attached

REITERACION 1.. Requires service of sentence 2. The offense do not need to fall under the same title 3. Equal or greater penalty with that accused is facing now or must be at least 2.

10. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty for two or more crimes to which it attaches a lighter penalty.

Same as that of recidivism, the greater perversity of the offender as shown by his inclination to crimes. *** despite the previous punishment, the offender did not learn his lesson.

1. 2.

3.

That the accused is ON TRIAL for an offense; That he previously served sentence for another offense to which the law attaches an equal or greater penalty, or for two or more crimes to which it attaches lighter penalty than that for the new offense; and That he is convicted of the new offense.

REITARACION or habituality not always aggravating - if, as a result of taking this circumstance into acct, the penalty for the crime of murder would be death and the offenses for which the offender has been previously convicted are against property and not directly against persons, the court should exercise its discretion in favor of the accused by not taking this aggravating circumstance into account.

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

REITERACION/ HABITUALITY That 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. The rationale here is that despite the previous punishment, offender did not learn his reason. Reason: despite the previous punishment, the offender did not learn his lesson.

HABITUAL DELINQUENCY Habitual Delinquency special aggravating circumstance and unlike the other kinds of aggravating circumstance which merely increases the penalty for offense committed, habitual delinquent has its own penalty which escalates with the increase in the number of conviction.

QUASI-DELINQUENCY QUASI RECIDIVISM a special aggravating circumstance which may not be offset by an ordinary mitigating circumstance. The offender has been previously convicted by final judgment and before beginning to serve such sentence or while serving the same committed a felony.

1.) 2.) 3.) 4.)

That the offender is on trial for an offense; That he was previously convicted by final judgment of another crime; That both the first and the second offenses are embraced in the same code. That the offender is convicted of the new offense.

1) 2)

3)

That the accused is ON TRIAL for an offense; That he previously served sentence for another offense to which the law attaches an equal or greater penalty, or for two or more crimes to which it attaches lighter penalty than that for the new offense; and That he is convicted of the new offense.

1)

A person is considered a habitual delinquent if within a period of ten years from the date of his release or last conviction of the crimes of: (FRETSEL) = Falsification, robbery, estafa, theft, serious or less serious physical injury

If it falls under the same title - recidivism. Where does it fall? ART 160 RPC - commission of another crime during the service of penalty imposed for another previous offense; besides the prov of rule 5 of article 62, any persons 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 punished by the maximum period of the penalty prescribed by law for the new felony. The thing is recidivism merely imposes maximum penalty of the period imposed However, QR prescribes that penalty would be imposed at the maximum period. Thus effectuates -> the penalty of recidivism because it is absorbed. Same ra sa effect sa recidivism. Or does not even matter because (unsa man imo idungag) nga ang maximum ra man gihapon ang i-impose. Misnomer ra siya. Kay if imo ithink ang purpose sa aggravating circumstance- increase the penalty but in truth- it can only impose the maximum period PRESCRIBED by law.

When he is a rebel and then he killed a lot of people before and then he is convicted now with homicide --- not the same. For the reason that it was inherent in his crime of rebellion. final judgment executory; meaning 15 days have elapsed from its promulgation without the convict appealing the conviction Already final when offender started serving sentence He expressly waived hi right to appeal He applied for probation. (he is effectively waiving his motion for reconsideration and appeal)

RECIDIVISM

REITERACION

RECIDIVISM

HABITUAL DELINQUENCY 1. 3rd conviction is necessary 2. Crimes are specific 3. When the next crime committed happened after the reglamentary period cannot be considered. 4. Special must be considered, additional penalty every crime committed back then.

1. Requires previous conviction with final judgment 2. The offense falls under the same title 3. NO requirement required to penalty attached

1. Requires service of sentence 2. Not required to be under the same title 3. Equal or greater penalty as compared to what the accused is facing now or if lighter, there must be at least 2 offenses.

1. 2nd conviction is enough 2. Requires the crime to be under the same title 3. Does not prescribe 4. Generic aggravating which can be offset by an ordinary mitigating circumstance

Recidivism cannot be appreciated where the prosecution failed to present a certified true copies of conviction in the other case since the same is not cured by the failure of the accused to object such lack of presentation. Recidivism is an affirmative allegation whenver alleged in the information and when the accused enters a plea of not guilty to such issues not only as to his guilt or innocence but also to the presence or absence of the modifying circumstances so alleged.

Quasi-recidivism is penalized in addition to habitual delinquency because e of the opening phrase in article 160 thus: besides the provisions of rule 5 of article 52. The effect is to penalize the convict with the maximum period of the new felony committee plus the penalty for the original conviction plus the penalty for the habitual delinquency. 4 counts of homicide - award for previous crimes Penalty: habitual delinquency award max of 30 years and quasi recidivism (max) deads.

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CIRCUMSTANCE 11. That the crime be committed in consideration of a price, reward of promise.

BASIS Greater perversity of the offender, as shown by the motivating power itself.

REQUISITES 1. Presupposes 2 or more offenders/principals Principal by inducement/offeror Principal by participation/acceptor Price, reward or promise must be for the purpose of inducing another to perform the deed.

APPLICATION If the price or reward or promise is alleged in the information as a qualifying aggravating circumstance, it shall be considered against all the accused, it being an element of the crime of murder.

NOT APPLICABLE TO o If without previous promise it was given voluntarily after the crime had been committed as an expression of his appreciation for the sympathy and aid shown by other accused, it should not be taken into consideration for the Without reward in the execution is not considered Not aggravating or considered when death is just a result of another crime like arson.

2.

o When another aggravating circumstance already qualifies the crime, any of these aggravating circumstances shall be considered as generic aggravating circumstance WHEN USED AS A MEANS TO KILL ANOTHER PERSON, the crime is murder. in order to constitute murder, there should be an actual design to kill and that the use of fire should be purposely adopted as a means to that end.. If there is intent to kill and explosion is used by the offender to accomplish his criminal purpose, it is murder if the victim dies in consequence thereof. Under article 330, which defines and penalizes the crime of damage to means of communication, derailment of cars, collision or accident must result from damage to a railway, telegraph or telephone lines. BUT this is without prejudice to the criminal liability for other consequences of criminal act. o

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 waste and ruin.

Reference to means and ways employed

1.

Used by the offender as a means to accomplish a criminal purpose.

REFER TO PARAGRAPH 7 for comparison.

By means of fire

By means of explosion

Hence, if the purpose of the explosion, inundation or fire is to kill a predetermined person, the crime committed is murder. Once any of these circumstances is alleged in the information to qualify the offense, it should not be considered as generic aggravating circumstance, because it is am integral element of the offense already *** NOTE: Each of the circumstances of fire, explosion, and derailment of locomotive may be a part of the definition of a particular crime, such as, arson (art 320), crime involving destruction (art 324) and damages and obstruction to means of communication (art 330). In these cases, they do not serve to increase the penalty, because they are already included by the law in defining the crimes. Thus, they should not be considered as aggravating circumstance and shall not be taken into consideration in increasing the penalty.

by means of derailment locomotive

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CIRCUMSTANCE 13. that the act be committed with evident premeditation GIPAMINSARAN

BASIS Has reference to the ways of committing the crime, because evident premeditation implies a deliberate planning of the act before executing it. ***

REQUISITE THE PREMEDITATION must be evident, not merely suspected. 1.) 2.) The time when the offender determined to commit the crime An act manifestly indicating that the culprit has clung to his determination; A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow conscience to overcome the resolution of his will. SUFFICIENT LAPSE OF TIME the offender must have an opportunity to coolly and serenely think and deliberate on the meaning and the consequences of what he planned to doo, an interval long enough for his conscience and better judgment to overcome his evil desire and scheme. ------- notwithstanding, the offender still committed the crime which made it aggravating because of such stubborn adherence to the commission of felony.

APPLICATION The date and time when the offender determined to commit the crime is essential, because the lapse of time (3rd requisite) is computed from that date and time. 2nd requisite is necessary which must be notorious and manifest, and the purpose and determination must be plain and have been adopted after mature consideration on the part of the persons who conceived and resolved upon the perpetration of the crime. After the offenders had determined (conceived) to commit the crime, they manifestly indicated that they clung to their determination ---o When the crime was carefully planned by the offenders o when offenders previously prepared the means which they considered adequate to carry it out. o When the defendant made repeated statements that the hour of reckoning of the victim would arrive and armed themselves with deadly weapon. What is sufficient lapse of time? o Evident premeditation was held attendant where the accused had had three days time to meditate upon the crime w/c he intended to commit, and was not prompted by impulse of the moment. (People v Lasafin) o Three hours or less considered sufficient lapse of time. Evident premeditation and PRICE or REWARD can COEXIST. may be taken into consideration independently of the fact that premeditation has already been considered, inasmuch as there exists no compatibility between these two circumstances, because if it is certain that as a general rule: price or reward implies premeditation, it is no less certain that the latter may be present without the former. For premeditation to exist: It is not necessary that there is a plan to kill a particular person.

NOT APPLICABLE WHEN o Mere threats w/out the second element does not show evident premeditation: A threat to kill, unsupported by other evidence which would disclose the true criminal state of mind of the accused, will only be construed as a casual remark naturally emanating from a felling of rancor and not a resolution of character involved in evident premeditation. Existence of ill-feeling or grudge alone is not proof of evident premeditation. A nursed grudge/resentment not a conclusive proof of evident premeditation. CONSPIRACY generally presupposed premeditation where conspiracy is directly established, the existence of evident premeditation can be taken for granted. BUT WHEN CONSPIRACY is only implied, evident premeditation may not be appreciated, in the absence of proof as to how and when the plan to kill the victim was hatched and the time which had elapsed before the commission of crime. Premeditation is ABSORBED by reward or promise, sometimes. -> applicable only to the inductor. The mere fact that another executed the act on the promise of reward does not necessarily mean that he had sufficient time to reflect on the consequences of his act. When victim is different from that intended premeditation is not aggravating.

3.) ESSENTIAL that the execution of the criminal act MUST be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at calm judgment. THUS, evident premeditation may not be appreciated absent of any proof as to how and when the plan to kill was hatched or what time elapsed before it was carried out.

REASON FOR THE DIFFERENCE OF THE RULING:

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13. that the act be committed with evident premeditation GIPAMINSARAN

The criminal intent w/c was carried out was to kill the first two persons whom the accused should meet @ the place where he intended to commit the crime. EVIDENT PREMEDITATION WAS CONSIDERED (Manalinde) 2. After careful thought and meditation, the accused decided to kill, whatever individual he should meet from the town where his son got the sickness of cholera. Acted on impulse and vengeance considerably, Perpetrated the crime with premeditation. (Zalsos) 3. A general attack upon a village having been premeditated and planned, the killing of any individual during the attack is attended by the aggravating circumstance of evident premeditation. (Rodriguez) Evident premeditation while inherent in robbery, may be aggravating in robbery with homicide if the premeditation included the killing of the victim.

1.

When the offender decided to kill a particular person and premeditated on the killing, but when he carried out his plan he actually killed another person, it cannot properly be said that he premeditated on the killing of the actual victim. But if the offender premeditated on the killing of any person like Manalinde who decided to kill the first 2 persons he would meet is proper to consider against the offender the aggravating circumstance because whoever it is he killed was contemplated in his premeditation. And where the victim belonged to the class designated by the accused, although the victim was not previously determined, premeditation is aggravating. In the case of Zalsos, the victim belonged to the class which was any persons of Macabebe to whom he attributed with cholera epidemic in his barrio.

14. That (1) craft, (2) fraud, or (3) disguise be employed

Reference to the means employed in the commission of the crime. *** This circumstance is characterized by the intellectual or mental rather than the physical means to which the criminal resorts to carry out his design.

CRAFT 1.) involves intellectual trickery and cunning on the part of the accused 2.) Resorted to by the accused to aid in the execution of criminal design. Employed as a scheme in the execution of the crime.

FRAUD 1.) Insidious words and machinations used to induce the victim to act in a manner which would enable the offender to carry out his design.

Where appellant deceived the victim into coming to her apartment under the pretext of accompanying the victim to the bank, and luring her to the 3rd floor of the apartment to which he committed the crime. There is craft where accused lured victim out of the house to kill him. Pretension whereby intent to do such a crime would not arouse suspicion from the offended party. Where four men determined to kill a man faraway, invited him to go mountain climbing and killed him there. Where the defendants induced their victims to give up their arms upon a promise that no harm be done to them (US v Abelinde), AND when the latter gave up their arms, the former killed them. To enter the house of Pedro, one of the accused shouted they wanted to buy

Not an aggravating circumstance where craft partakes of an element of an offense, the same may not be appreciated independently for the purpose of aggravation. Not established when the evidence shows that the accused and his companions, did not plan to camouflage their hostile intentions ate the incipiency of the attack. (People v. Cunanan) But craft is NOT attendant where the unlawful scheme could have been carried out just the same even without the pretense.

THERE IS HAIRLINE DISTINCTION BETWEEN CRAFT AND FRAUD. There is craft or fraud when by trickery, accused gain entrance in victims house. Pretending to have pacific intentions, gained entrance and consent from victim to which facilitated commission of crime. CRAFT FRAUD

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 DISGUISE 1.) Resorting to any devise to conceal identity

cigarettes, which induced the owner to open backdoor for them, and one of them said they wanted to drink water. Once inside, they committed robbery with rape. FRAUD is aggravating. When the defendant covered his face with handkerchief before committing the crime that he should not be recognized, disguise is present.

The act of the accused done in order NOT to arouse suspicion from the victim o

When there is a direct inducement by insidious words or machinations

o 15. that (1) advantage be taken of superior strength or (2) means be employed to weaken the defense *** Keyword: advantage ABUSE OF SUPERIOR STRENGTH Intentional use of superior strength 1.) Where there is excessive force out of proportion to the means of defense available to person attacked. a. When there is a NOTORIOUS INEQUALITY of forces between aggressor and the victim (age, size and strength) 2.) Numerical superiority 3.) Offender uses a powerful weapon which is out of proportion to defense. THERE MUST BE EVIDENCE THAT THE ACCUSED were physically stronger and that they abused such superiority. Where the victim who died was an innocent tender baby and the others were barely 5 and 12 years old. When deceased was defenseless and under the influence of liquor, a clear case of superiority is present. Abuse of superior strength when a man attacks a woman with a weapon (which his sex and the weapon used afforded him in the commission of crime) ABUSE OF STRENGTH by NUMERICAL SUPERIORITY: o Unarmed victim was attacked by 3 men and all of them with weapons. o Assailants were 4 in number and were armed with bladed instruments. The deceased was alone, unarmed and taken by surprise. o Jurisprudence 4 men and 1 defenseless victim, w/out treachery, would constitute advantage of superior strength (people v garcia) When weapon used is out of proportion to the defense available to the offended party. Aggravating in COERCION and FORCIBLE ABDUCTION when greatly in excess of that which is required to commit the offense. Other crimes illegal detention by 6 men , in robbery with rape committed by 4 men, in robbery with homicide by 3 mean. AGGRAVATING CIRCUMSTANCES ABSORBING BAND - cuadrilla. Band and abuse have the same essence which is the utilization of combined strength of the assailants.

o o

o o o

BY A BAND

ABUSE OF SUPERIOR STRENGTH Gravamen is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims. *** Relative physical might vis--vis the offended party

Cuadrilla 1.) Atleast 4 malefactors and 2.) All of them are armed.

That even though he assumed that masquerade as a disguise, he was readily recognizable because his face could easily be seen together with his identifying feature, disguise is not aggravating. When offenders may or might have superior strength, but they do not or did not take advantage of it. When one attacks another with passion and obfuscation Does not apply when a quarrel unexpectedly arose and the fatal blow was struck at a time when the aggressor was brawling with the victim. Not applicable when the attack was made on the victim alternately. No abuse of superior strength in parricide against wife. The mere fact of there being superiority of numbers is not sufficient to bring case within aggravating circumstance. No abuse of superior strength when one acted as principal and the other two as accomplices inconsistent because it should be 3 men cooperated together in some way designed to weaken the defense. WHEN THERE IS TREACHERY superior strength is absorbed.

*** The number of aggressors and the fact that they are armed

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MEANS EMPLOYED TO WEAKEN DEFENSE

Exists when the offender, who had the intention to kill the victim, made the deceased intoxicated, thereby materially weakening the resisting power of victim. APPLICABLE ONLY TO CRIMES AGAINST PERSONS OR PERSONS AND PROPERTY

MEANS TO WEAKEN DEFENSE ABSORBED IN TREACHERY

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CIRCUMSTANCE 16. That the act be committed with treachery (alevosia)

BASIS Reference to the means and ways employed in the commission of the crime MEANING OF 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 arising from the defense which the offended party might make.

REQUISITE Requisite: 1.) That at the time of the attack, the victim was not in a position to defend himself 2.) That the offender consciously adopted that particular means, method or form of attack employed by him.

APPLICATION RULES REGARDING TREACHERY 1.) Applicable only to crimes against person 2.) Means, methods or forms need not insure accomplishment of crime 3.) The mode of attack MUST be consciously adopted. The treacherous character of the means employed in the aggression does not depend upon the result thereof but upon the means itself, in connection with aggressors purpose in employing it. The accuse maust make preparation to kill the deceased in such a manner as to insure the execution of the crime or to make it impossible for the person attacked to defend himself. The characteristic and unmistakable manifestation of treachery is the deliberate, sudden and unexpected attack of the victim from behind, w/out any warning and w/out giving him an opportunity to defend himself or repel the initial assault.

NOT APPLICABLE TO o CANNOT BE PRESUMED - the suddenness of attack, does not suffice to support a finding of alevosia, even if the purpose was to kill, as long as the decision was made all of a sudden and the victims helpless postion was accidental. When there is NO witness to such crime Neither was there treachery where the attack was frontal, indicating that the victim was not totally w/out opportunity to defend himself, when the surrounding circumstance was acted upon impulse. Mere suddenness of the attack is not enough to constitute treachery. It must be deliberately chosen by the accused. Where the meeting between the accused and the victim is casual and the attack impulsively done, there is no treachery. the reason being that the accused could not have made the preparation for the attack, the meeting between him and the deceased being casual, and the means, method and form of attack could not have been thought by the accused, because the attack was impulsively done. NO TREACHERY WHEN the victim was already defending himself when he was attakced by the accused. Mere sudden and unexpected attack does no necessarily not give rise to treachery No treachery where the accused gave the deceased a chance to prepare. Also when the attack was preceded by a warning. CALLING ATTENTION NOT NECESSARILY A WARNING. No treachery when preceded with a heated discussion. ATTACK FROM BEHIND may not necessarily be alevosia it must be sudden and consciously adopted also Cannot co-exist with passion or obfuscation

o o

Treachery means, methods or forms of attack are employed by the offender to make it impossible or hard for the offended party to put up any sort of resistance Abuse of superior strength does not employ means, methods or forms of attack; he only takes advantage of his superior strength Means employed to weaken the defense like in treachery, but the means employed ONLY MATERIALLY weakens the resisting power of the offended party.

Attacks showing eliminating risk Victim asleep Victim half-awake or just awakened Victim grappling or being held Attacked from behind a. With a firearm b. With a bladed weapon c. Other modes of armed attack There is treachery in killing a child. Treachery may exist even if the attack is made face-to-face: 1. When it was not preceded by a dispute 2. And offended party was unable to prepare himself for his defense. Summary of rules: 1. When the aggression is continuous, treachery must be a.) b.) c.) d.)

In relation to other circumstances Absorbed

Abuse of superstrength Aid of armed men and by a band Means to weaken the defense nighttime

o o o

Inherent

Not absorbed

o o

Age and sex

Dwelling

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17. That means be employed or circumstances brought about which add IGNOMINY to the natural effects of the act Reference to the means employed. IGNOMINY a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime 1) the means employed or the circumstances brought about must tend to make the effects of the crime more humiliating or to put the offended party to shame. Reference to the means and ways employed to commit a crime. ***Reason for aggravation: one who acts, not respecting the walls erected by men to guard their property and provide for their personal safety shows a greater perversity, a greater audacity; hence, the law punishes him with more severity. 19. that as a means to the commission of a crime, a wall, roof, floor or window be broken. Reference to the means and ways employed to commit a crime. *** SC called it the aggravating circumstance of forcible entry Unlawful entry when an entrance is effected by a way not intended for the purpose. 1.) To effect entrance, not for escape

present at the beginning of the assault 2. When the assault was not continuous, in that there was an interruption, it is sufficient that treachery was present at the moment the fatal blow was given. In treachery, it makes no difference WON the victim was the same person whom the accused intended to kill because it still rendered victim impossible to defend himself. Inherent in murder by poisoning Applicable to crime committed against chastity When before victim was killed, he was forced to kneel in front of his house with the servants in a line before him. Where a woman was raped in the presence of her husband Rape as ignominy in robbery with homicide

18. that the crime be committed after an unlawful entry.

Rape committed in a house after an entry through the window. Also when the offender went into the victims room through the window.

o o

BUT unlawful entry is one of the ways of committing robbery with force upon things under art 299 and art 302 of the code. Inherently in this kind of robbery. Generic aggravating when not in the information, not considered. Not aggravating in the trespass to dwelling.

1.) 2.) 3.) Breaking of a part of the building To effect entrance only Utilized in the commission of the crime

Under Rule 113, section 22 (revised rules of criminal procedure) an officer, in order to make an arrest, either by virtue of a warran or without a warrant, as provided in sec 5 may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is Refused admittance thereto, after announcing his authority and purpose.

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o 20. that the crime be committed (1) with the aid of persons under 15 years of age or (2) by means of motor vehicles, airships or similar means Reference to the means and ways employed to commit a crime. 1.) Asking the minor to do the crime for the principal because of their perceived innocence and immunity from being criminally charged. *** 2 different aggravating circumstance in paragraph 20. 1.) tends to repress, so far as possible, the frequent practice resorted to by pro criminals to avail themselves od minors taking advantage of their irresponsibility 2.) intended to counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed. 21. cruelty Reference to the means and ways employed to commit a crime. 1.) That the injury caused be deliberately increased by causing another wrong When the wrong done was intended to prolong the suffering of the victim, causing him unnecessary moral and physical pain by That the accused enjoyed and was delighted in making his victim suffer CRUELTY when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act. Refers to physical suffering of victim purposely intended by offender Considered in extracting victims eye and stuffing his mouth with mud Or burning mouth of child in murder Rapes, robbery and other forms of cruelties are aggravating circumstances of ignominy and cruelty in treason. o o o o BY MEANS OF MOTOR VEHICLE 1.) when used to facilitate the commission of the crim NOTE: if the motor vehicle was used only in facilitating the escape, it should not be aggravating. Aggravating where the accused use a motor vehicle to insure the success of their nefarious enterprise Also referring to motorized vehicle or other efficient means of transportation similar to automobile, airplane. o

ESTAFA, cannot be committed by means of motor vehicle

2.)

Another wrong is not necessary for its commission Cannot be presumed Plurality of wounds alone does not show cruelty No cruelty when another wrong done was after the victim died.

3.)

IGNOMINY INVOLVES MORAL SUFFERING

CRUELTY REFERS TO PHYSICAL SUFFERING

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