Professional Documents
Culture Documents
THOMAS MORE
Preliminary Article This law shall be known as The Revised Penal Code.
BOOK ONE
General provisions regarding the date of enforcement and application of the provision of this code, and
regarding the offenses, the persons liable and the penalties.
Preliminary Title and application of the provision of this code.
Article 1. Time when Act takes effect. This Code shall take effect on the first day of January,
nineteen hundred and thirty two.
Criminal law is defined simply as that branch or division in the study of law which defines
crimes, treats of their nature, and provides for their punishment.
It defines crimes:
We are familiar with the Criminal Law axiom nullum crimen , nulla poena sine lege, that there
is no crime where there is no law punishing an act or omission as a crime. It tells us what is punishable and
what is not punishable.
Treats of their nature:
Crimes belong to different classes. In Book II alone, crimes are divided or classified into 13
classifications from Crimes Against National Security and the Laws of Nations, to Quasi-offenses, Crimes
Against Honor, etc. And there are many classifications of penalties, like the consummated, attempted, and
frustrated, the grave, less grave and the light felony. These are what you call nature of crimes. We are
concerned not only of crimes under the Penal Code, but this includes those acts punishable under special
laws. So, you must understand the nature of each. Each one has its on special rules to be followed.
Provides for their penalty:
One of the weaknesses of bar candidates is the law on penalties. They are afraid of
computation. But you cannot avoid this because whether you like it or not, the law on penalties is part and
parcel of the Revised Penal Code.
Question: What are the sources of criminal law?
Answer: There are only two known sources of criminal law:
Revised Penal Code (Act 3815), as amended; and
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
Question: Why is it that there is only one source of criminal law, because in the final analysis, there is only
one source - the law itself?
Answer: You back to back in nullum crimen, nulla poena sine lege. There is no crime if there is no law that
penalizes an act or omission as a crime.
Question: Is there such thing as a common law crime?
Answer: There is no such thing as common law crime because law is based on customs and tradition. There
is no such thing as crimes by tradition in the Philippines. Tradition or custom itself does not create a crime,
but the law itself must provide and penalize an act as a crime.
Question: Is the Constitution a source of criminal law?
Answer: No, because it does not define crime, nor provide penalty. You still have to hear of an
information filed in court for the violation of the Constitution. The Constitution is the source of many rights
of an accused, but you cannot find any crime defined and penalized in the Constitution. So, theoretically,
the Constitution is not a source of criminal law.
Generality:
Philippine criminal laws are binding on all persons who live and sojourn in the Philippine
territory when one commits a crime in the Philippines, whether he is a resident citizen, alien, a transient,
or tourist, he is subject to prosecution before Philippine courts. That is what you mean by general character
of criminal law.
Questions: Are there exceptions? Are there people who are in the Philippines who commit criminal act, but
are immune?
Answer: By way of exception, yes. There are two:
1.
Those who are exempt by virtue of the principle of Public International Law.
Example:
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
President Bush went to the Philippines on a state visit, and upon landing in Manila, the first
thing he did was to molest somebody. Can he be accused of acts of lasciviousness or rape? No. He cannot
even be arrested and charged before our courts because he is a head of state. He is immune.
You also cannot arrest anybody who holds a diplomatic rank, whether he be a diplomat of any
nation, or an ambassador, ministers plenipotentiary, ministers residents, or charge d affairs. These are the
people who are exempt.
When the Philippines enters into a treaty with a foreign country and grants immunity from
criminal prosecution of its nationals by agreement the best example of such a treaty was the former USRP Military Bases Agreement where for certain crimes committed in the Philippines by American
Servicemen who were discharging their official duties, they could not be charged in Philippine Courts.
They could be charged by the United States under their laws. We cannot do anything about that because we
agreed to it. That is a treaty.
The principle of generality and its exceptions are clearly expressed in the Civil Code of the
Philippines which states:
ARTICLE 14, CIVIL CODE: Penal laws and those of public security and safety shall be obligatory upon
all who live and sojourn in Philippine territory, subject to the principles of public international law and
to treaty stipulations.
Territoriality:
This means that penal laws of the Philippines are enforceable only within its territory. We
cannot enforce them outside of the Philippines if the crime was committed outside.
PROBLEM: A and B are Filipino citizens. They took a tour on Japan. When they were in the tour, A
attacked B in Tokyo, inflicting upon B physical injuries. When B came back here, the first thing he did was
to file a case of physical injuries against A, in Philippine courts.
Question: Can the Philippine courts try the case of physical injuries, because anyway both parties are
residents of the Philippines.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
Answer: No, because even if the crime of physical injuries will be admitted by A, it did not happen here. It
happened in Japan. We cannot enforce our Revised Penal Code for the crime committed outside of
Philippine territory.
Question: What is the difference between generality and territoriality?
Answer: They are almost the same. General characteristics, it is enforceable upon everyone who resides or
visits or sojourns in the country. Territorial characteristics is enforceable only for crimes committed in the
Philippines. They may appear to be overlapping, but there is a slight difference.
In general characteristics of criminal law, the emphasis is on the offender, the person who
commits the crime, whether he is a reside alien or not, tourist of citizen the emphasis is the person who
commits the crime.
But territorial characteristic, the emphasis is upon place only. However, the territorial character
of criminal law has known exceptions. Meaning, even if the crime committed is outside Philippine
Territory, the offender can still be charged under Philippine laws and tried by our courts, even of the act
was not committed here.
There are supposed to be five exceptions to the territorial characteristic of criminal law. These
exceptions are found in Article 2 of the Revised Penal Code.
Prospectivity:
This means that crimes are punished under the law in force at the time of their commission.
So, if the act becomes a crime today because the law itself fixed it such that it be considered a
crime today, you cannot prosecute a person who had done the act yesterday. Criminal law looks forward.
That is the general rule.
Question: May a penal law be given retroactive effect?
Answer: Yes, when a law is more favorable to the accused. An example of such penal statue is if a new law
reduces the penalty of your offense.
Example: You commit a crime punishable by 5 years imprisonment. Now, there is a new law reducing the
penalty of 5 months.
Question: Can the offender claim now, that upon conviction is penalty should be 5 months?
Answer: Yes, he is covered and he can claim it.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
In 1995, RA 7659, or the Heinous Crime Law, was passed amending, among others, RA 6425.
This new law provides for a penalty, which depend upon the number of grams or sticks of marijuana that is
sold. Insofar as this particular convict is concerned, the law had the effect of reducing his sentence,
considering that he sold only two sticks of marijuana.
Held:
The new law should be given retroactive application because it is favorable to the convict. The
Director of Bureau of Prisons was ordered to release the convict from the National Penitentiary.
But there are exceptions to the exceptions. Meaning, even if favorable, it will not be given
retroactive effect. You then go back to the general rule.
1.
If the new law is expressly made inapplicable to pending actions or causes of action.
If the law is silent, it should be given retroactive effect if favorable. Supposing the law will say
that it is not applicable to pending actions. None, even if it is favorable, it will not be given retroactive
effect. Meaning, the law provides for non-retroactivity. That is why such a provision must be express.
2.
Where the offender is a habitual delinquent under Article 65, of the Revised Penal Code.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
Held: In view of the Spanish text which must prevail, the crime is robbery with homicide supervened by
mere accident.
Quintin Paredes
Guillermo Gueverra
Alex Reyes
Mariano de Joya
The committee came out with their draft and the Philippine Legislature passed it into law on
December 8, 1930 and became effective on January 1, 1932. It came to be known as Act 3815, or the Revised
Penal Code. So, the Revised Penal Code has been effective for 75 years already. It has undergone several
amendments, but the basic structure of the law is the same.
During the late 1940s, there was an attempt to redraft the Revised Penal Code (RPC). The
committee charged came out with the proposed Code of Crimes, which, however, was not passed by
Congress. And in late 1970s, the UP Law Center came out with another draft which was also called he
Code of Crimes. It was submitted to the Batasang Pambansa but to no avail.
In 1995, the then Congress passed another bill to be called the code of Crimes again.
Although it is different one from the previous drafts. It was sponsored by Congressman Sergio Apostol. He
conducted public hearings, including in Davao, but still remains to be seen whether the bill will be finally
enacted into law.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
In other words, there have been several attempts to amend or replace the RPC for the past 75
years. It has passed the test of time, it is a very durable law.
The Classical Theory gives more emphasis upon the ACT committed rather that the actor.
Whereas, the Positivist Theory gives more emphasis on the ACTOR rather than the act. There is a focus of
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
attention on the DOER rather than on what he did. The focus on Classical Theory is on WHAT HE DID
rather than the actor.
Question: Upon which of these two schools of thought is the RPC based?
Answer: The RPC is almost 80% reproduction of the Penal Code of Spain. Since the Spanish Penal Code is
based on the Classical Theory, necessarily our RPC is based on the Classical Theory of Criminal Law. There
were certain changes introduced by the RPC. Certain Positivist provisions were inserted. The framers of the
RPC had the complete authority to throw away the Spanish Penal Code. But they were cautious, they were
not prepared. They came basically with the Spanish Penal Code, revised. So, they still adhered to the
structure of the Spanish Penal Code. That is why our RPC is still the Classical Theory.
Art. 2. Application of its provisions. Except as provided in the treaties and laws of preferential
application, the provisions of this Code shall be enforced not only within the Philippine
Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of
its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or
obligations and securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the
obligations and securities mentioned in the presiding number;
4. While being public officers or employees, should commit an offense in the exercise of
their functions; or
5. Should commit any of the crimes against national security and the law of nations, defined
in Title One of Book Two of this Code.
The phrase except as provided in treaties or laws of preferential application. These are so called
Exceptions to the General Characteristics of Criminal Law. Meaning, the RPC is binding on all who live and
sojourn in the Philippines, except people who are not covered by the RPC due to treaty stipulations,
because laws of preferential application.
Question: What does Philippine Territory cover?
Answer: The first paragraph of the RPC in Article 2 expresses the Territorial Principle: Philippine
territory comprises the Philippine Archipelago, its atmosphere, the space above it, subject to the aviation
rights of other countries.
During that time, the concept of outer space is not yet recognized. That is beyond the territory
of any country. There is only a certain limit in territorial waters. Only a portion of the sea is considered as
Philippine Territory. These are all parts of public international law.
Question: What is the accepted radius?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
Answer: It used to be three miles, then it became six. Now, it is twelve miles. It also covers the Economic
Zone, such as the Spratlys. That is not part of its economic zone. China, Vietnam, Taiwan are also claiming
it. That might become source of war. That is Philippine Territory.
As a general rule, the RPC and the other Penal Laws can only be enforced within Philippine
Territory. They cannot be enforced outside. There are five exceptions to the territorial character of Criminal
Law.
Question: When may the provisions of the RPC be enforced outside Philippine Territory? What are the
exceptions to the territorial nature of the RPC? In what instances may the provisions of the RPC be given
EXTRATERITORIAL effect?
Answer:
1. Should commit an offense while on a Philippine ship or airship
The term airship instead of airplane was used because at the time of the drafting of the
RPC, there were no commercial planes yet. The means of transportation then were the dirigibles, those that
look like ballons (the Lindenburg of American accident fame). That is what they mean by the term
airship.
So, paragraph 2 refers to a ship already outside of the Philippine territory. IF the problem says
that the ship is in the middle of Pacific Ocean, does Philippine law apply? Yes, because the crime was
committed on board a Philippine vessel. Even if it is outside of the Philippine Territory, it falls under the
exception. This is one of the instances when RPC may be given extraterritorial effect.
The same thing with airplanes. The plane is flying in the middle of the atmosphere over the
Pacific Ocean, between the united States and the Philippines. If the crime is committed aboard that plane,
the crime is traible in the Philippines. That is an exception also.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
We have no problem if the crime is committed on board a Philippine ship or airplane, while
outside of the Philippines, flying or sailing, as the case may be, in international waters or airspace. The
problem comes in if the crime is committed on board a Philippine ship outside the Philippines where it is
anchored and it is under the territory of another country.
Question: Suppose, a Japanese vessel is in the middle of the Pacific Ocean, and a Japanese crewmember
killed another Japanese crewmember. Whose law shall be applied on the prosecution of crime?
Answer: I do not know, and I do not care. It did not happen in our territory. It did not happen in our ship or
airship. Presumable, it is the Japanese law, but I do not know the Japanese law.
But if a Philippine ship was in the middle of the Pacific Ocean and a crime was committed on
board it, no country will assume any interest there.
10
Except when the crime is minor, something which affects or involves only the internal
management of the vessels, in which case, it would be tried in the country under whose flag the vessel
navigates or where it is registered.
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations
and securities issued by the Government of the Philippine Islands;
tickets.
The second exception applies also to government bonds, treasury warrants, and sweepstakes
Example: You are responsible for counterfeiting Philippine money abroad. Every week you fly to the
Philippines, and then you are caught. You say you cannot be charged under Philippine laws because you
say you counterfeited currency, but not in Philippine territory. That will not prosper! You can be arrested as
if you committed the crime here. That constitutes economic sabotage, so we can try the crime in our courts
as if the crime was committed in Philippine territory.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
11
3. Should be liable for acts connected with the introduction into these islands of the obligations
and securities mentioned in the presiding number;
The third exception is related to the second. You may not be the forger or counterfeiter, but you
are the importer into the Philippines of these forged or counterfeited currencies and securities. So, you
are liable for the introduction of the same in the Philippines.
4. While being public officers or employees, should commit an offense in the exercise of their
functions; or
This applies more particularly to those in the foreign service because the offender here is a
public officer who commits a crime in the exercise of his function. For example, officers of the Philippine
Embassy and Consulate malversed government funds of the embassy.
Question: Does it mean that every crime committed abroad by these officers can be tried here?
Answer: No, only those committed in the exercise of their function. Meaning, the acts were related to their
jobs where the element of being public officer is an essential ingredient. If you commit an offense which is
purely private and it has nothing to do with your being a public officer, it is not covered. These crimes here
are those under the Title of Crimes Against Public Office malversation, bribery or crimes committed
under the Anti-Graft Act.
5. Should commit any of the crimes against national security and the law of nations, defined in
Title One of Book Two of this Code.
Example of a crime against national security: treason, espionage. A Filipino citizen, during the
war, commits an act of treason while he is abroad. After the war, he goes back to the Philippines. He can be
arrested for that crime even if the crime was not committed here because that is against national security of
the state.
Example of crimes against the laws of nations: piracy, mutiny. A group of pirates committed
piracy in Indonesia. That is clearly outside Philippine territory. But the pirates are apprehended in
Philippine waters. They can be charged under Philippine law. They cannot say the act of piracy was
committed beyond Philippine territory, that they committed it in Indonesia. Piracy is a crime against the
laws of nations and the offenders can be apprehended and tried under the law of the country where they
are caught.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
12
Title One
FELONIES AND CIRCUMSTANCES
WHICH AFFECT CRIMINAL LIABILITY
Chapter One
FELONIES
Art. 3. Definitions. Acts and omissions punishable by law are felonies (delitos).
Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).
There is deceit when the act is performed with deliberate intent and there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.
According to this article, felonies are acts and omissions punishable by law. But that is not the
complete definition. That is only one-third of the definition. The concept of felony covers the entire Article
3. It is not limited only to the first paragraph. You have to incorporate the entire Article 3.
Question: How do you rephrase that?
Answer: Felonies are acts and omissions punishable by law which can be committed not only be means of
deceit (dolo) act is committed with deliberate intent or by means of fault (culpa) when the wrongful act
results from imprudence, negligence, lack of foresight, or lack of skill.
That is the complete definition.
Question: What are the elements of felony?
Answer:
Elements of Felony: (Atty. Angels Note)
1. Involves an act or omission.
2. Punishable by RPC.
3. Committed by either dolo or culpa.
1.
Act or omission
13
Art. 116. Misprision of treason. Every person owing allegiance to (the United States) the
Government of the Philippine Islands, without being a foreigner, and having knowledge of any
conspiracy against them, conceals or does not disclose and make known the same, as soon as possible to
the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides, as the case
may be, shall be punished as an accessory to the crime of treason.
If you find a person dying in the middle of the forest, then you just left him there, you are liable
under Article 275 for abandonment of persons in danger. Normally, you are liable for not doing. The
Chinese proverb (Too much talk, too many mistakes. Less talk, less mistake. No talk, no mistake) is the
general rule, but not in felony of omission. You have to do something.
2.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
14
So Article 3 says punishable by law, it refers to RPC only. A better way of expressing it is: Felonies
are acts and omissions punishable by the RPC. That would be the more accurate way. For example,
murder.
Question: Is there difference between crime and a felony?
Answer: The word crime is generic, because it refers to all acts or omissions punishable by any law. Even
the RPC uses the word crime to refer to felonies of Book Two in Crimes Against National Security. But the
more accurate term for acts or omissions by the RPC are felonies. Those punished by special laws are
called crimes or offenses. Felony is a technical term. Those punishable by ordinance are called
infraction of ordinance.
If you say murder is a crime that is correct because the term is used in its generic sense. But
when you say murder is a felony, you must be a law student. You are expected to know the meaning of the
word felony. On the other hand, if you say that issuing a bouncing check is a felony you do not know what
you are talking about. It cannot be felony, because it is not found in the RPC.
3.
When you say deceit it means you were fooled. For example, you run out of cash, so you
issue check which you know will bounce because there is no fund for it. There is deceit there. In estafa,
there is also deceit. But there are felonies where there is no deceit. For example, Give me your money or else
Ill kill you. There is a felony, i.e. a robbery or hold-up, but there is no deceit. There is intimidation and
intent to gain but there is no deceit.
Question: If there are many crimes where there is no deceit, how come the law says felonies are committed
by means of either deceit or fault?
Answer: Because deceit is a wrong translation of the word dolo. Deceit is a form of dolo but not every
dolo constitutes deceit. The better translation for the Spanish word dolo is intent. So, there must be
intent, instead of deceit. Culpa means fault when there is negligence or importance. There is no intent
but is substituted by lack of foresight or lack of skill.
Question: Intent is in the mind. But how do you prove intent? For example: When you kill somebody, how
do you prove that you have the intent to kill?
Answer: There is no need to prove it. There is a presumption in law that criminal intent is presumed from
the commission of a criminal act. When you kill somebody, the law presumes intent to kill. When you
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
15
divest somebody of his money in a robbery or theft, the law presumes that there is intent to gain. It is fair
enough, because how can the prosecution prove what is in the mind of person? So, what is in the mind is
judged by your actions.
Question: Why is there such a presumption?
Answer: Because of the Classical Theory of criminal law that man is a rational being, so that when he
commits a criminal act, it is presumed that he did it knowingly, and therefore, his criminal intent is
presume from his commission of a criminal act. Without such presumption, it should be very difficult for
the prosecution to be required to prove criminal intent. But the presumption could be rebutted.
Question: Distinguish motive from intent.
Answer: Both are in the mind. Motive is the moving power that impels a person to commit a crime; while
intent the purpose to use a particular means to achieve a particular result. While criminal intent is an
element of a felony, motive is completely immaterial.
Example:
A shoots B to death.
In the realm of criminal law substantive law motive is immaterial; it is not an element of the
crime. Hence, it need not be proved for purposes of conviction. Otherwise, if we were to require motive to
be an element of a crime, many criminals will not be prosecuted. When the commission of a crime is proved
and the identity of the criminal is established, motive is immaterial.
Motive is important, not in substantive law, but in procedural law the law on Evidence.
Motive may constitute circumstantial evidence. Meaning, if you have no direct evidence that A killed B, I
will gather a series of possible reasons to show why A is guilty. So motive is important to prove the
probability that A is the criminal, but it is not important to prove the existence of a crime. But if you have
hundred witnesses, it is not necessary to prove motive because in that case, the reason for committing the
crime becomes completely immaterial.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
16
No motive or reason for the killing here dealt with as reveled by the proofs. This is immaterial,
where the evidence otherwise persuasively demonstrates who is the killer and the acts by which he has
carried out nefarious intent.
This is not that what lies in the murky criminal mind is not interest, especially to penologist,
criminal psychologist, or social scientists. But it is immaterial in reaching a conclusion of guilt and
imposing an appropriate penalty on the basis of a cold dispassionate appraisal of the bare facts exposed by
the evidence.
In other words, motive would be a subject of penologist, criminal psychiatrists or social scientists.
But for purposes of getting a conviction, it is completely immaterial for as long as there is evidence to prove
that the crime was committed and it was the accused who committed it.
Question: Can a person be held criminally liable under the RPC even if he has no criminal intent?
Answer: Yes, if it is committed by means of fault or culpa which is substituted for intent.
Culpable felonies are known under Article 365 as QUASI-OFFENSES. There is no criminal
intent but is substituted by fault imprudence or negligence.
Imprudence means deficiency of action, lack of skill. Negligence refers to deficiency of perception, lack of
foresight. Meaning, the failure to foresee what a reasonable man ought to foresee.
Example:
A motorist drove his car at a speed of 100 kph in the middle of San Pedro St. Suppose he
bumps somebody. That is normal for incidents as that to happen. But there must be something wrong in
his foresight. Why is he driving at a very fast jeep in a busy street?
Question: Why does the law penalize people who commit culpable felonies, when actually there was no
criminal intent?
Answer: Because he is penalize people for his lack of skill. According to the Supreme Court, it is very
dangerous if a person can get away with a criminal act simply because he did not have the intent. Society
will be at great risk if people can be careless anytime.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
17
Another important principle: when the law says there must be criminal intent or fault, what
it means is the act must be committed voluntarily. Every felony must be committed voluntarily.
Example:
Article 12 one who acts under the compulsion of an irresistible force, one who acts under the
impulse of an uncontrollable fear of an equal or greater injury. Under these two circumstances, the offender
acts with intelligence and intent, but if there is no freedom of action, as he is only forced, threatened or
intimidated to commit the crime. So, he is exempt from criminal liability because the act ceases to be
voluntary. There is Latin maxim: actus me unvito, factus non est meus actus. As it is done against my will,
it is not my act.
If there is freedom, there is intent but no intelligence it has same effect. The act ceases to be
voluntary. For example: Article 12 an imbecile or insane person; a minor under 9 years of age.
Suppose there is freedom, there is intelligence, but there is no intent. What happens is that
person is again free from criminal liability. It is true that criminal intent is presumed, but such presumption
is not conclusive, it is rebuttable.
US vs. AH CHONG
35 PHIL 488
Facts:
Ah Chong was a cook in Fort McKinley. He was afraid of bad elements. One evening before
going to bed, he locked himself in his room by placing a chair against the door. He called out twice, Who
is there? but received no answer. Fearing that the intruder is a robber, he leaped from his bed and called
out again if you will enter my room, I will kill you! But at that precise moment, he was struck by the
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
18
chair that had been placed against the door, and believing that he was being attacked, he seized a kitchen
knife and struck and fatally wounded the intruder turned out to be his roommate.
Held:
Ah Chong is not liable for the death of his roommate because of mistake in fact.
Mistake of Fact is a misapprehension of fact on the part of the person who caused injury to another. He is not,
however, criminally liable because he did not act with criminal intent.
Requisites of Mistake of Fact
a. That the act done would have been lawful had the facts been or turned out as he believe them
to be;
b. That the intention of the accused in performing the act should be lawful;
c. That the mistake must be without fault or carelessness on the part of the accused.
Question:
What is the reason why Ah Chong killed the intruder?
Answer:
Ah Chong killed the intruder because he believed that the intruder was inside his room in the dark to kill
him and therefore, he had to kill him first.
Question:
Suppose what he believed turned out to be true; an intruder in the middle of the night enters his room to
kill him, but he kills him first. Is he liable?
Answer:
Of course not! Because of self-defense. Meaning if you believe it to be so true, you are not liable. So, the first
element is there.
Question:
What was the intention of Ah Chong in killing that man?
Answer:
The intention was lawful the act in self-defense, to protect his life and limb.
Question:
Was he careless? Did he just immediately stab the person when the latter entered the room?
Answer:
No, in fact Ah Chong asked who he was and even gave him warnings not to enter the room or else Ah
Chong would kill him. Moreover, it was dark, so how can he determine the intruder was his roommate or
not. In other words, the element of intent and culpa were all negated.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
19
That is the classic example of mistake of fact. And the Latin maxim there is Actus no facit reum
nist mens sit rae. The act is not criminal when the mind is not criminal.
Another maxim Ignorantia facti excusat (mistake of fact is an excuse) is not to be confused
with the Ignorantia legis non excusat. While ignorance of the law excuses no one from compliance
therewith, ignorance or mistake of fact relieves the accused from criminal liability.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
20
Answer: Article 365 defines reckless imprudence as voluntarily but without malice in doing or failing to do
an act. So, there, you will see that in reckless imprudence cases, there is no dolo, but still the act must be
voluntary.
Question: Can a person be held criminally liable under Philippine law even if there is no criminal intent on
his part?
Answer: Yes:
1. When the felony is classified as culpable in nature, like reckless imprudence; and
2. If the crime for which he is caused is classified as a crime malum prohibitum.
MALA PROHIBITA
Example of crimes mala in se are murder, homicide, robbery or rape. They are not only crimes
under our laws, but they go against natural law, the basis commandments of God. Even without knowing
the law, you conscience would tell you that there is something wrong with these crimes. They are wrong
per se. Even without the RPC, the human conscience will tell us that there is something wrong when a
person kills, robs or rapes somebody. With or without the RPC, society could not accept these evils.
However, these are also crimes which are NOT inherently wrong mala prohibita. They are wrong
only because they are prohibited. They are violations of mere rules of convenience enacted by the state for
the proper and orderly administration of society. Examples of these are illegal possession of firearms,
violations of traffic rules.
Question: Is there anything inherently immoral when a person brings a gun with him?
Answer: One may posses or own a firearm without license because the law says so. It is wrong because it is
prohibited, not because it is immoral.
Question: Is there anything wrong when a person drinks a bottle of beer during election day?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
21
Answer: None, it becomes a crime because the law says so. It says one drink on any other day, but not on
Election Day.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
22
By any person committing a felony (delito) although the wrongful act done be different
from that which he intended.
2.
By any person performing an act which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment or an account of the
employment of inadequate or ineffectual means.
Question: Suppose a person commits felony and the wrongful act done is precisely what he intended. For
example, B kills A. B aimed his gun towards A and shoots him, Bs intent was to kill A, and A died. Does he
incur criminal liability?
Answer: Of course! But this is not mentioned in Article 4 which says the wrongful act done be different from
which he intended. Here, it was really the intention of B to kill A.
Question: How can a person commit a felony and the wrongful act done is different from that which he
intended?
Answer: There are three situations contemplated by Article 4 (1):
1. Error in personae error in identity
2. Aberratio ictus mistake in blow
3. Praeter Intentionem the result exceeded the intention.
Error in Personae
A wants to kill B so, he decided to ambush B in the dark. One night, A waited for B, when he
thought he saw B coming, A attacked and killed B. Later on, A found out that the person he attacked was
not actually B, but X. he killed the wrong guy. Of course, A will be prosecuted for death of X, and b is very
much alive. This is As defense: he should not be liable for the death of X because he (A) did not intended to kill X .
He just misidentified the victim.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
23
Aberratio Ictus
This is not mistake in identity, but a mistake in the blow. For example, A wanted to kill B. A
drew his gun, pointed to B and fired at him. But the bullet did not hit B. Instead, the bullet hit X, killing the
latter. Prosecuted for the death of X. As defense is that X was not the intended victim.
Question:
Is A liable for the death of X, although he (A) did not even intended to kill him?
Answer:
Yes. That defense will not hold any water. A is liable for the felony although it was not the one he intended.
So in error in personae, there is a correct aim but the actual victim turned out to be a person
different from the intended victim. In aberration ictus, on the other hand, because of faulty aim, the
intended victim is not the person hit.
Praeter Intentionem
The result exceeded the intention.
PEOPLE vs. CAGOCO
58 Phil 524
Facts:
The accused had the intention to inflict physical injuries upon the person of B. Approaching B,
accused hit him with his fist, because of the first blow, B fell on the floor. Bs head hit the rock. It fractured
his skull and thus caused his death. A had no intention of killing B. His intention was merely to inflict upon
B physical injuries. But B died.
Issue:
Is A liable for homicide although his intended felony was only physical injuries?
Held:
A is liable for homicide, although his intention was merely to inflict upon B, physical injuries. It
is conceded that under Article 13, he is entitled to the mitigating circumstance that the offended did not
intend to commit so grave a wrong as that committed. But that is beside the point. The issue here is
whether the crime he committed is homicide or only slight physical injuries.
US vs. VALDEZ
41 Phil 497
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
24
Facts:
The accused chased the victim with a knife causing the victim to panic and run. The latter
jumped into the sea and eventually was drowned.
Issue:
Held:
US vs. MARASIGAN
27 Phil 504
Facts:
The victim here was stabbed. Because of his refusal to submit to medical treatment, the wound
got infected, and the injury became worse. Slight physical injuries became serious physical injuries. The
accused was charged with serious physical injuries. Accused claimed he should be liable for slight physical
injuries, because the victims serious physical injury arose from his refusal to see the doctor.
Issue:
Held:
Yes, the accused is still liable for the serious physical injuries inflicted upon the victim although
it was not intended. The victim was not obliged to submit to medical treatment to relieve the accused from
the natural and ordinary results of the crime. It was his voluntary act, which disabled the victim, and he
must abide by the consequences resulting therefrom.
A person, committing a felony, is liable for the direct, logical and natural consequences of his criminal act.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
25
In other words, the principle which the Supreme Court applied is the so called doctrine of
proximate cause, and is defined as that cause which in the natural and continuous sequence, unbroken by any
efficient intervening cause, results in a particular felony, without which the felony would not have resulted.
Question: In the case of Cagoco, the victim did not die because of the punch. The victim died because his
head hit the piece of rock. Would you say that the hitting of his head on the rock which caused his death
was something absolutely foreign, something which broke the relation between cause and effect, between
the punching and the death?
Answer: No. That is not efficient intervening cause. The immediate cause of death was the fractured skull,
but the punching was the proximate cause based on the logic that without the punching, there is no falling
down. Without the falling down, there is no head hitting a piece of rock, and if that did not happen, there
will be no death. So, everything is traceable to the original criminal act.
So, the principle laid down by the Supreme Court is: He who is the cause of the cause is the
cause of the evil caused. The cause of death is actually the cause of the evil caused.
In other words, the effect is death, immediate cause the fractured skull, proximate case
punching. So, the immediate cause of death was the fractured skull is the proximate cause of death.
Illustration:
Punch victim
(proximate cause)
victim dies
effect
Generally, infections are all considered as a continuation or the natural effects of what happened to
the victim. They are not efficient intervening cause.
The law says that one is not liable if there are efficient intervening causes. Meaning, if there is
something which happened in between which is absolutely foreign between the victims death and the
original act, there is a break in the relation of cause and effect, then one is liable only up to that point.
Beyond that, no more.
Take note that the Supreme Court says that one is liable for all the direct, logical and natural
consequences of his criminal act. The Supreme Court never said that he is liable for all possible and
probable consequences of his act.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
26
There are some cases where the factor that intervened between the criminal act and the resulting
injury was considered as an efficient intervening cause, something totally unexpected, something
absolutely foreign which broke the relation of cause and effect between the original act and the resulting
injury. So, when you are liable for a felony, you are liable up to a certain point.
Normally, jurisprudence would say that the infections are efficient intervening causes, except in
this case of De los Santos, where it was caused deliberately.
There is also another unique case decided by the Supreme Court where the infection was
considered an efficient intervening cause. There are some queer cases where the Supreme Court went
outside the normal pattern. Because we follow the general pattern, when a person injures another and the
victim suffers an infection maybe because of carelessness or poor medical attendance, but not intentional,
the accused should be held answerable for everything. That is his burden.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
27
So, the proximate cause of the victims death was not the wounding, but the tetanus, because the
wounding was but a remote cause. This is one of the few cases where the accused was not held liable for
the resulting infection. The Supreme Court here did not apply paragraph 1 of Article 4 but applied the
doctrine of remote cause, rather that proximate cause. As a matter of fact, in the Urbano case, the Supreme
Court seems to be dissenting medical wounds. That case became more of medical textbook for tetanus,
that a Supreme Court decision in Martin.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
28
Take note of the premises of paragraph 1 of Article 4. The law is very clear: a person is committing
a felony although the wrongful act done be different from that which he intended. So, this does not apply
to a felony by omission.
Like for example, in one case, the mere act of punching is already intended. In the case of
Marasigan, the act of wounding the victim is already a felony. In the case of Martin, where he straggled his
wife, that is already a felony, although the cause of her death is heart attack. That is started with felony. But
if one is not committing a felony, he is NOT liable for the direct, natural, and logical consequences of is act.
Question: A wanted to play a joke with his friend. Since, this is where he passed every night, A waited to
the friend. When he reached the place, A surprised him. The friend died due to heart attack. Is A liable for
the friends death on the theory of paragraph 1, although the wrongful act done be different from that
which he intended? Was A committing a felony when he played a joked on his friend?
Answer: No, A is not liable for the death of is friend. If there was a felony, yes he is liable. But is there a law
in the Philippines that prohibits playing a joke on somebody/ None. Since A here was not committing a
felony when he played a joke on his friend, then he is not liable for his friends death. It could be something
unexpected and tragic. But it is not enough to make a person criminally liable. There is no basis.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
29
By any person performing an act which would be an offense against persons or property, were it not for
the inherent impossibility of its accomplishment or on account of the employment of inadequate or
ineffectual means.
This is known as the concept of Impossible Crime.
Question: Why is it that in paragraph 2, the Penal Code says, performing an act, whereas paragraph 1
says, committing a felony.
Answer: Precisely because in paragraph 2 there is no known felony. Unlike in paragraph 1 where felony is
defined in the RPC, Book II; but, he performed an act which would have been an offense against persons or
property.
Meaning, the act should have been a crime against person or property but it did not turn out to be
that way because of the inherent impossibility of its accomplishment or on the account of the employment
of inadequate or ineffectual means.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
30
Normally, you commit a crime against person. But you can also commit a crime against property.
Examples are the following: robbery, theft, etc. Agaisnt persons: murder, homicide, physical injuries, etc.
Question: Are all impossible attempts to commit a crime punishable? Meaning, when you committed an
act which turned out not to be an offense of an inherent impossibility, are you liable?
Answer: No, in order to be considered an impossible crime, it would have been an offense against persons
or property. So, when you perform an act which would be an offense against chastity, against honor, or
against public interest, that is not covered by paragraph 2 of Article 4 because of the special hatred by the
RPC for crimes against persons and property.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
31
Inadequate Means
For example, I placed a small quantity of poison in the food of somebody. He took the food but he
did not die because of the dosage that I put in the food as it is insufficient to kill a person. I am liable for
committing an impossible crime.
Question: For instance, the poison that I placed in the food was adequate but I did not know that the
person was especially immune from the chemical that I used. So, he did not die despite the sufficient
amount of poison. Did I commit an impossible crime?
Answer: No, that would be more of a frustrated murder. The offender performed all the acts of execution,
which would produce a felony as a consequence, but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator. So, it is frustrated murder under Article 6, rather than an
impossible crime under Article 4 paragraph 2.
Ineffectual Means
For example, I placed something in your office believing that it was poison, but actually it was salt or sugar.
You could not have been killed because it was not poison. But because I believed that I could have killed
you were it not for the ineffectual means, I am liable for impossible crime.
A, who knew that B owned and always carried a watch, decided to rob B of said watch. When A
met B for that purpose, B did not have the watch because he forgets to carry it with him. Thinking that B
had the watch with him, A pointed his gun at him and asked for the watch. Finding that B did not have the
watch, A allowed B to go without further molestation.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
32
Question: Is he liable for an impossible crime because it was impossible for him to take something, which is
not there?
Answer: No, that is not an impossible crime that is attempted robbery. It would fit the definition of an
attempted robbery better than the definition of an impossible crime. And the mere act of placing or poking
a gun at somebody is by itself already a felony. So, it falls under a specific provision of the RPC, then, it
should not be treated as an impossible crime.
Question: What is the basis for impossible crime doctrine? Why should a person be held liable when
actually he did not commit any crime?
Answer: The principle here is objectively he is not criminal, but subjectively he is a criminal. He thought he
was committing a crime. So, he should be punished for that. In the positivist thinking, he is socially
dangerous person, he is criminally minded.
Question: Why are we talking about the person? Didnt we say that the RPC is based on the Classical
Theory of criminal law, where we are looking at the effect rather than the person? Is this not a violation of
the classical theory of criminal law?
Answer: No, Article 4 (2) of the RPC is one of the few principles, which is positivist-oriented. Our RPC is
mainly based on the Classical Theory, but there are few positivist-oriented provisions and one of them is
the impossible crime concept, under Article 4 (2) of the RPC.
Question: What is the penalty to be imposed on impossible crime? Can we penalize the offender for
murder, homicide, robbery, etc the crime that he would have committed?
Answer: Of course not! He cannot be penalized for the crime, which he would have committed precisely
because he did not commit the crime.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
33
Art. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law and in cases of excessive penalties. Whenever a court has knowledge of any
act which it may deem proper to repress and which is not punishable by law it shall render the
proper decision and shall report to the Chief Executive through the Department of Justice the
reasons which induce the court to believe that said act should be made the subject of legislation.
In the same way the court shall submit to the Chief Executive through the Department of Justice
such statement as may be deemed proper without suspending the execution of the sentence
when a strict enforcement of the provisions of this Code would result in the imposition of a
clearly excessive penalty taking into consideration the degree of malice and the injury caused by
the offense.
Question: What does the first paragraph of Article 5 mean? Suppose a person is accused in court criminally
and it turned out that the act is not a crime. Meaning, there is no law that penalizes this act. What should
the court do?
Answer: The law says that the court should render the proper decision.
Question: What is the proper decision?
Answer: Acquit. How can you convict a person when there is no existing crime? Nullum Crimen, Nulla
Peona Sine Lege. But the court should inform the executive branch that it should recommend passage of
the law. Sometimes, it happens that you commit an act which appears to be immoral and illegal, but there is
no governing law. So, you now recommend that a new law be passed. This is to cover the loophole in the
law.
But the second paragraph states the opposite situation. If a person is found guilty of a crime
there is no question about it; there is no question that he is liable and this is the proper penalty. This must
still be imposed on the convict even though it is excessive. Why excessive? It is excessive because of some
special circumstances. Normally, it is not excessive but because of some circumstances, it becomes one. But
there is nothing that the judge can do. He still must impose it but he must recommend executive clemency.
That is for the President to grant. The judge has no power to pardon. The judge has no power to commute
or to grant conditional pardon. The executive branch must take over but as a judge, he has no other choice
but to apply the law.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
34
to sentence her to perpetua. But based on the circumstances of the case, there is something exceptional
which makes the penalty excessive. In other words, the court also considers the feeling of the girl.
Held:
The trial court is ordered to sentence her to perpetual, but in the decision, recommended
executive clemency. The executive branch will take that into consideration.
This happened very recently. In the case handed by Judge Ocampo, in beautiful Cebu. He
convicted the killers of the Chiong sisters, finding them guilty beyond reasonable doubt, but he imposed
the penalty or reclusion perpetua, when there is no question that the applicable penalty is death. The judge
has applied his own norm of morality, or his own concept of death penalty. The law is the law for all its
seeming harshness. We, as court of judges, have to apple the law regardless of personal beliefs and
compassion. Dura lex sed lex.
Not punishable
2.
Punishable
b.
Acts of Executon
Attempted
Frustrated
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
35
Consummated
Normally, as outlined in some books, a crime usually starts with a person arriving at the
decision to commit a crime and then he plans it out. We call that the mental process or some authors call
them internal acts. Although the word internal acts does not seem to be accurate in criminal law, when we
say act as defined in Article 3, it is physical action, a moving of the muscle. If it is a mental process , it
cannot be an act but we will just use the word act loosely.
At this stage, this is still beyond the scope of criminal law. No one can charge you for thinking
of committing a crime. That is a problem, which should be solved by the person with his spiritual director.
But it is not the concern of the law. So if you want to murder your enemies, you just imagine. If you want to
rape beautiful girls, you just imagine. That is beyond the scope of criminal law.
However, usually after the decision and the planning, that is followed by external acts, the
physical activity. So, the mental process will now be followed by external or physical acts. But external acts
should be divided into two. First, are the Preparatory Acts.
Like for example, you want to poison your enemy, you will buy poison. If you want to stab him,
you buy a knife and sharpen it. If you want to shoot him, you get a gun and practice shooting. Those are
preparations.
Preparatory external acts of preparation for the commission of a felony are not punishable, except when
the law specifically provides penalty for such preparatory acts.
The best example is Article 304 of the RPC, which penalizes the crime known as possession of
picklocks and similar tools. Picklocks and similar tools are usually objects of gadgets, which are owned by
robbers. They use it to open doors, windows, etc.
But actually, the possession of a false key or a picklock is not the actual act of robbery. It is only in
preparation of robbery. Normally, it should not be punishable but the trouble is Article 304 says mere
possession of these objects, which are preparatory to the crime of robbery with force upon things, is also
possible.
After the preparatory acts comes the ACTS OF EXECUTION. Where a person now proceeds to
implement his plan. He now executes the commission of the act and there are three possibilities, which
RPC calls as the attempted, frustrated and consummated or mere frustrated or attempted is already
punishable. So, we are concern here because these are all punishable already.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
36
Attempted Stage:
There is an attempt when the offender commences the commission of felony directly by overt
acts. Since the law says by overt acts, the conclusion is: In felony by omission, there is no attempted stage.
So, there is no such thing as attempted stage in a felony by omission because attempted stage applies only
to felony by act.
The Supreme Court laid down the rule in order to convict a person for an attempted felony; the
overt act must have a direct relation to the felony for which he is charged. There must be a direct relation
between the overt act and the elements of the felony for which he is charged.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
37
However, one thing is clear. He was in the act of entering a house in the middle of the night,
while all the occupants were all asleep. And when one enters a house against the will of the occupants, he
commits the crime of trespass to dwelling. So, the crime he has committed is attempted trespass to
dwelling, not attempted robbery.
In attempted felony, the offender here had started to commit a felony. But the trouble is, he did
not finish. He was halfway though or less than halfway through, but he did not continue because he failed
to perform all the acts of execution which would produce the felony. Why? Because of a cause or because of
an accident other than his own spontaneous desistance.
Cause
Theft, pick pocket. He was trying to pick pocket of the victim. He was trying to lift the wallet inside
the pocket or the bag. The owner of the wallet detected it, and held the hands of the thief. So, he failed to
take the wallet. There was the act of taking but he failed to complete the possession of the wallet. The
reason here why he failed to perform all the acts of execution was because the owner prevented him. That
is a cause other than is own spontaneous desistance. So, attempted theft.
Accident
I want to kill A. I aim the gun. I fired, but the gun jammed. It did not explode. So, with that I failed
to kill the victim. Well, when I pointed my gun to the victim, I have already commenced the act of trying to
kill. But the trouble is it did not explode. The jamming of the gun was not consummated, not because the
offender stopped from proceeding, but because of something else.
Question: Suppose, A would like to kill Z. As a matter of fact, he already commenced the commission of
the felony but he realized that there were many eyewitnesses. So, he desisted. Can he be liable?
Answer: Viada says, never mind what is the motive for not continuing. What is important is that he did not
continue with the crime; he desisted voluntarily. Viada does not care whether his desistance was based on a
noble reason, remorse, or out of fear of being caught. What is important is his desistance. When he tries
again that is another story. But for the moment, since he desisted, he would not be liable.
But take note that the desistance must come before the consummation of the crime. You cannot
desist when all the acts of execution are already accomplished.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
38
Frustrated Stage
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
39
Question: Suppose, I shot K but the gun jammed. Is that attempted or frustrated?
Answer: Attempted. How can K die when I did not even hit him. The jamming of the gun is an accident
other than my own spontaneous desistance.
Question: Suppose, I shot K, but because of my poor aim, he was not hit. What is that?
Answer: That is still attempted. How can he die unless I hit him. So, my poor aim is the cause other than
my own spontaneous desistance.
Question: Suppose, I hit him but the wound is not really fatal. So, he did not die. Is it attempted or
frustrated?
Answer: It is still attempted because I have not performed all the acts of execution. How can K die without
a fatal wound? So, until the offender inflicts a fatal wound which could normally kill, it can be rightfully
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
40
claimed that the offender has not performed all the acts of execution which would produce felony as a
consequence.
But, supposed, the offender, with the use of .45 caliber pistol, shot the victim in the head blowing
off his brain, hit him in his chest blasting his heart and still another shot blasting his liver. Then, the victim
was rushed to a hospital. Because of modern apparatus, he was able to survive. This modern science is the
cause independent of the will of the perpetrator. I did everything to kill him. Definitely, Ive performed all
the acts of execution. He is supposed to be dead by now. That is frustrated.
Question: A doctor wanted to poison his wife. So, he placed poison in her food. His wife ate the food with
poison. When the wife had already swallowed the food, the doctor was bothered by his conscience. He was
remorseful; so he administered first aid and forced her to vomit. The wife survived. Was the crime
attempted or frustrated parricide?
Answer: (Analysis)
In attempted parricide, the offender has not performed all the acts of execution. In other words, it
would be attempted if the wife, who has already taken the poison, vomited by herself. When she
spit out the poison that constitutes an accident other than the husbands desistance. But if the
husband had his conscience stricken before the wife had swallowed the poison, then, there is not
even attempted parricide because of his own spontaneous desistance.
But if the wife has already swallowed the poison, and it was already in her stomach, desistance is
immaterial. You cannot order the poison to go out the body. He has in fact passed the frustrated
stage because he has already performed all the acts of execution. But to convict a person of
frustrated parricide, the law requires that the felony did not materialize because of causes
independent of the will of the perpetrator. Like you shot somebody but because of timely
intervention by a doctor, he survived. But, here, the offender himself saved the wife. In other
words, it would not also fit the definition of a frustrated felony.
Question: How do we distinguish the attempted or frustrated stage of a felony from an impossible crime?
Answer: In an impossible crime, the crime to be committed was inherently impossible of commission;
whereas in attempted or frustrated felony, the crime is possible of accomplishment, but it was not produced
because of a cause or an accident other than the offenders desistance, or because of causes independent of
the will of the perpetrator.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
41
Facts: Intod and his companions, with intent to kill, fired at the bedroom where they thought the victim
was sleeping. It turned out, however, that the victim was in another city and no one was in the room when
the accused fired the shots. No one was hit by the gunfire.
The accused contends that the crime is an impossible crime under Article 4(2). They performed an
act, which would be an offense against persons murder, were it not for the inherent impossibility of its
accomplishment. How can they accomplish when the victim was not there, when he turned out in other
places.
On the other hand, the prosecution believes that it was attempted murder. They failed to kill him
because they failed to perform all the acts of execution, because of a cause other than his own spontaneous
desistance. And that cause is the fact that the victim turned out no to be there.
Issue: What was the crime committed?
Held: The factual situation of the case at bar presents a physical impossibility which render the intended
crime impossible of accomplishment, and under Article 4(2), such is sufficient to make the act an
impossible crime. To uphold the contention of the prosecution that the offense was attempted murder
because the absence of the victim was the supervening cause independent of the actors will render useless
the provision of the RPC. In that case, all circumstances, which prevented the consummation of the offense,
will be treated as an accident independent of the actors will.
So, the Supreme Court agreed with the accused. It is a case of impossible crime because every time
a crime is not committed, because of a cause or accident other than the desistance of the accused, or causes
independent of his will, it would be attempted or frustrated. There is no more application of Article 4(2), if
we follow the logic of the prosecution.
Consummated
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
42
Question: But supposed some elements are present and some elements are absent. Suppose a crime is
composed of several elements, then the prosecution has established only some of the elements but the
others are not, what will happen?
Answer There are Three Possibilities:
1.
Example:
A, with intent to kill, shoots B. But B did not die because the doctor saved his life.
2.
The accused cannot be convicted of the felony charged in its consummated stage but he can be
found guilty of another felony in its consummated stage.
Example:
A person is charged with robbery. Robbery is committed when, with intent to gain, one takes
personal property belonging to another with violence or intimidation of persons or force upon things. The
offender is proved to have taken, with intent to gain , property of another but there was no force upon
things, or violence or intimidation against persons.
43
That is the 2nd possibility. When the prosecution proves less than the elements of the crime charged,
the accused can be convicted of another crime also in its consummated stage. In the law on criminal
procedure, that means the accused of a crime is convicted of a crime necessarily included in the crime
charged.
3.
When a person is charged with a crime consists of two or more elements, some elements are
proven but the others are not, the accused should be acquitted because no crime was established.
Example:
A accused B of estafa under the Penal code. Generally, the elements of estafa are:
a. Misappropriation;
b. Deceit or abuse of confidence; and
c. Pecuniary damage suffered by the plaintiff.
During the trial, the prosecutor proved that the accused was able to get money from the victim and
he did not return the money. So there was pecuniary damage. But there was no deceit, no abuse of
confidence.
1.
You have to take note also that in some special crime the attempted stage and the consummated
stage are identical. Meaning, when you do it, consummated. When you attempt to do it, it is also
consummated. So, there is no distinction between the attempted and the consummated because they carry
the same penalty.
Art. 121. Flight to enemys country. The penalty of arresto mayor shall be inflicted upon any
person who, owing allegiance to the Government, attempts to flee or go to an enemy country
when prohibited by competent authority.
PROBLEM:
Philippines is at war with another country. So, all citizens of the Philippines are banned
from going to that country. Suppose, in violation of that, you decide to go to that country. When you come
back, the government will file a case against you because you visit a country with which we are at war and
there is prohibition.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
44
You really wanted to go. You are on the act of going; you are about to board a plane. You are
caught! So, you are not able to go. You attempt to go, consummated. You go and you are caught,
consummated also. The attempted and consummated stages are identical, that is why a mere attempt is
already considered consummated.
2.
Consummated or Nothing
There are some crimes where there is no attempted or frustrated. Its either consummated or
nothing.
Examples:
1. Felony by omission You failed to do an act which the law commands you to do as a duty. So,
if you dont commit any crime. But if you do not do it, there is a crime. Either you do or you do
not do.
2. False Testimony in Court
3. Slander When you orally defame somebody in public presence; kawatan ka, rapist pa
gyud!. What did you commit? You have orally defamed the person to put him dishonor.
Suppose, you said; kaw, you did not finish. Is that attempted slander? No! Either you say
the whole thing or you dont
Some authors call that Formal Crimes where there is only one stage as distinguished from crimes
composed of stages, which are called Material Crimes, like homicide. But even in material crimes,
it is also hard to distinguish one from another.
Question: If that is so, how can you commit frustrated or attempted arson? Is there such a thing as
attempted or consummated arson?
Answer: Yes, that is answered by jurisprudence.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
45
The same thing with rape. According to the Supreme Court, there is no such thing as half measure
or quarter measure in a rape. Mere penetration of the labia no matter how slight or momentary, even if
there is no emission, consummates rape.
If there is sexual intercourse between the rapist and the victim, even how fleeting it is, or how
shallow the penetration, that is already consummated. If it is in the act of entering but it is discontinued,
that is attempted.
Question:So, based on Article 6, what are the classifications of felonies according to stages of execution?
Answer: They are the following:
1. Attempted
2. Frustrated
3. Consummated
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
46
Art. 7. When light felonies are punishable. Light felonies are punishable only when they have been
consummated, with the exception of those committed against person or property.
GENERAL RULE: Light Felonies under Art. 9 are only punishable if they are consummated.
EXCEPTION:
In other words, light felonies must be consummated to be punishable. So, if the felon is light and it
is only attempted or frustrated, there is no liability. It is not possible. In effect, there is no crime and you are
not liable.
The reason for the rule is that a light felony is merely an infraction of the law. As a matter of fact,
even if the light felony is consummated, the penalty is only arresto menor or a fine not exceeding P200.
Damage or injury to society or to the public order is negligible. If it is negligible, what possible damage to
society is there if the light felony is only attempted or frustrated? It is so microscopic in size that the law
would rather not punish it anymore.
However, Art. 7 has also an exception: xxx with the exception of those committed against person or
property. If the light felony is classified as an offense against persons or property, it will be punishable even
if it is only attempted or frustrated. Meaning, those who commit crimes against persons are more perverse
than those who violate the other Titles of the Book.
Art. 8. Conspiracy and proposal to commit felony. Conspiracy and proposal to commit felony are
punishable only in the cases in which the law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony proposes its execution
to some other person or persons.
Article 8 gives us the concept of proposal to commit a felony and conspiracy. Of course, article 8
presupposes that there are at least two persons involved. You cannot give a proposal to yourself and agree
with yourself. So, minimum of two. The person proposing the felony, and the person to whom the proposal
is made.
Note: There is proposal when the person who has decided to commit a felony presupposes its execution to
some other person or persons.
In other words, a person who has decided to commit felony proposes its execution to some other
person or persons. He is not joking. He has decided.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
47
Example:
I approach A and say, I will pay you P 1,000, you assassinate X. From that time, there is already a
crime of proposal to commit homicide of murder, because I decided to commit a crime and proposed it to
somebody.
Question: Suppose, the gunman did not agree to the proposal and said; No, I do not accept. Is there still
a proposal?
Answer: Of course, because proposal is unilateral. Once a proposal is made, it is there whether the person
to whim the proposal is made accepts it or not. As a matter of fact, the person should not accept because
once he does so, there is now an agreement and the proposal becomes a conspiracy.
As defined in the RPC, a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. I propose, you agree. We decide to commit
felony. There is now conspiracy.
Once the proposal is accepted, it now reaches the stage of conspiracy, and the parties are now
covered by the definition of conspiracy. Suppose, at that moment, they are caught and arrested.
Question: If you are the lawyer of the accused, what will you do?
Answer: I will move to quash the information because according to Article 8 mere proposal to commit a
felony, mere conspiracy to commit a felony is not punishable. There is no commencement yet; the act is only
preparatory. The conspiracy or proposal is only a preparatory act to the crime.
Question: So, what is the legal principle involved in proposals or conspiracies to commit felony?
Answer: The rule is they are not punishable.
Question: If we agree to rob a bank and before we have started the robbery we are caught. You cannot say
there is robbery because we have not even commenced the overt act of robbery. It is just an agreement. Are
we guilty of conspiracy to commit robbery?
Answer: No. There is no article in the RPC which penalizes the crime of conspiracy to commit robbery. So,
in reality, according to article 8, mere conspiracy to commit felony is not punishable. They are only
preparatory acts. When I propose the commission of a crime, we agree, we are not yet in the fact of
executing the crime. We are still preparing for it and we have learned that preparatory external acts as a
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
48
rule are not punishable, except when the law provides a penalty for mere preparatory. So, we have to apply
the exception here.
Article 8 says, Unless the law specially provides a penalty therefore. Meaning, conspiracy or proposal
is not punishable unless the law makes conspiracy or proposal punishable for certain offenses.
Question: Are there instances when mere conspiracy or mere proposal becomes a felony?
Answer: Yes. That is when the law provides penalty therefore. And there are many crimes in the RPC
which can be consummated by mere proposal or mere conspiracy, such as the following:
1.
2.
3.
But the most famous conspiracies that constitute crimes are those, which are directed against the
internal or external security of the State, such as the following:
1.
2.
3.
4.
Question: How about proposals? Enumerate some important crimes in RPC, which are punishable even if
they have only reached the proposal stage.
Answer: More or less the same. They are the following:
1. Conspiracy to commit treason (Art. 115)
2. Conspiracy to commit rebellion or insurrection (Art 136)
3. Conspiracy to commit coup detat (Art.136, as amended by RA 6968)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
49
Art. 9. Grave felonies, less grave felonies and light felonies. Grave felonies are those to which the law
attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance
with Art. 25 of this Code.
Less grave felonies are those which the law punishes with penalties which in their maximum
period are correctional, in accordance with the above-mentioned Art..
Light felonies are those infractions of law for the commission of which a penalty of arrest
menor or a fine not exceeding 200 pesos or both; is provided.
Grave Felonies:
Question: How do you determine whether a felony is grave, less grave or light?
Answer: It depends in the penalty attached by law to the crime committed. This is a manifestation of the
classical theory of criminal law. There must be a proportion between the seriousness of the crime and the
penalty.
Question: How do I know that a felony is grave?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
50
Answer: According to Article 9, if it is punishable by death or any penalty which the Code classifies as
afflictive, it must a grave felony.
Question: What are the afflictive penalties?
Answer: Under Article 25, you have the following:
1. Reclusion perpetua
2. Reclusion temporal
3. Perpetual or temporary absolute disqualifications
4. Perpetual or temporary special disqualifications
5. Prision mayor
So, any crime in the RPC which carries any one of those penalties is automatically a grave felony.
Light Felonies
Question: What are light felonies?
Answer: They are infractions or violations of the RPC where the prescribed penalty is imprisonment of
arresto menor or a fine not exceeding P200 or both.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
51
Art. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future
may be punishable under special laws are not subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the latter should specially provide the contrary.
A special penal law is a law, which punishes acts or omission not defined and penalized by the
RPC.
Example:
Violations of the Dangerous Drugs Act like pushing that is not found in the RPC but in another law, that
is, RA 6425, as amended. Another is illegal possession of firearms is penalized by PD 1866.
2.
It is a statute enacted by the legislative branch, penal in character, which is not an amendment to
the RPC.
Congress can pass a law anytime amending the RPC. It is incorporated in the RPC. Congress may
also pass a law adding another crime in the RPC.
That is not a special law because a special law is intended to stand separately from the RPC; it is no
intended to form part of the RPC.
Example:
Law on coup detat.
Article 10 is a statement of whether the RPC should or should not apply to crimes punished by
special laws. Crimes in the jurisdiction may be penalized by the RPC or special laws mala in se or mala
prohibita.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
52
So, the RPC can still apply to crimes punishable by special laws in a supplementary capacity to
provide what is lacking in the special law. But if the special law is complete or sufficient, RPC does not
apply.
Illustration:
A special law is passed penalizing a certain crime. Somebody attempts to commit the crime
but does not succeed.
Question: Should the offender be liable for attempted violation?
Answer: No. If the special law does not penalize the attempted or frustrated stage of the crime, then, the
conclusion is that it is not punishable the provisions of Article 6 of the RPC do not apply to special laws.
A case has been decided by the Supreme Court, where the accused was prosecuted for an
attempted violation of the Anti-Graft Act. There are many crimes punishable by the Anti-Graft Act, one
that is when you cause injury to the government. There was an attempt to case injury to the government
the cheating of taxes. Bu they were merely attempts because it was discovered by the Bureau of Customs.
They were charged with Attempted Violation of the Anti-Graft Act.
Question: Why is it that the attempted and frustrated felonies do not apply to crimes penalized by special
laws?
Answer: The reason is because of the penalties. Under the RPC, penalties have their own specific
nomenclatures, like death, reclusion perpetua, prision maor, etc. and there is a scale of penalties. The
general rule is that the penalty for the attempted or the frustrated stage is one or two degrees lower than
the penalty prescribed for the consummated felony.
But in special laws, penalties are not denominated as prision mayor, etc if found guilty, you are
sentenced to imprisonment for say, 1 to 5 years or 9 years. Thats the penalty. There is no more one or two
degrees lower or higher because there will be no basis for the penalty. If the special law says that the act of
doing that is a crime, then, the attempt or frustration to commit it cannot be a crime.
In other words, you cannot apply by analogy the attempted or frustrated stage. In the first place,
you have no basis for the penalty. The basis for attempted or frustrated is the penalty for the consummated
crime prision correctional, reclusion temporal, etc. one or two degrees lower, as the case maybe.
The same principle will control with respect to the liability of the accomplices and accessories
under Articles 17 to 20. If the special law does not penalize the accomplice or the accessory, then, only the
principal is held liable because, again, there is no basis for fixing the penalty for these people, in the
absence of rules on graduation of penalties.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
53
Moreover, the Supreme Court said as a general rule the provisions of mitigating and aggravating
circumstances do not apply to special laws because they only apply to penalties prescribed by the RPC.
Penalties under special laws do not have minimum, medium or maximum period.
Exception
The exception is if the special law is insufficient and there is no conflict anyway, then, the
provisions of the RPC may be applied in supplementary manner.
Question: A special law borrows the penalties under the RPC, can there be a penalty for the attempted or
frustrated crime?
Answer: Yes, because there are now attempt to borrow the principles in the RPC, you can now apply the
RPC in a suppletory manner.
The perfect example would be RA 7659, the Heinous Crime Law, which amended the Dangerous
Drugs Act, adopting the penalties of the RPC. The penalties in the RPC are now adopted in RA 7959. With
that, the intention is to make the RPC supplementary.
Question: Suppose a person is convicted of possession of illegal drugs. After he is convicted , what will
happen to the exhibits? Will it be returned to him?
Answer: Of course not. It should be forfeited be the State.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty imposed
for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the
instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government,
unless they be property of a third person not liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.
You can apply it suppletorily because such is not there. There is no conflict between them.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
54
Chapter Two
JUSTIFYING CIRCUMSTANCES
AND CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY
Question: What are the five circumstances affecting criminal liability of a person under the RPC? Describe
each and cite two examples:
Answer: The following are the circumstances affecting criminal liability:
RECALL: JEMAA (Memory aid; from the notes of Atty. Angel)
1.
Justifying Circumstances
- Those where the act of person is said to be in accordance with law, so that such person is
deemed not to have transgressed the law and is free from criminal and civil liability, except
in paragraph 4 (state of necessity/ emergency rule) where the civil liability is borne by the
person benefited be the act.
- Examples are: self-defense, fulfillment of duty or lawful exercise of a right or office.
2.
Exempting Circumstances
- Those grounds for exception from punishment because there is wanting in the agent of the
crime any of the conditions which make the act voluntary, or negligent, such as
intelligence, freedom of action, intent or negligence.
- Examples are: imbecility and minority
3.
Mitigating Circumstances
- Those, which, if present in the commission of a crime, do not entirely, free the actor from
criminal liability, but serve only to reduce the penalty.
- Examples are: incomplete self-defense, the offender had no intention to commit a wrong as
that committed.
4.
Aggravating Circumstances
- Those, which, if attendant in the commission of a crime, serve to increase the penalty
without, however, exceeding the maximum penalty provided by law for the offense.
- Examples are: treachery and recidivism.
5.
Alternative Circumstances
- Those, which must be taken into consideration as aggravating or mitigating according to
the nature and effects of the crime and the other conditions attending to the commission.
- Examples are: relationship and intoxication.
Synopsis:
Number
Circumstance
Article
Justifying
Article 11
Exempting
Article 12
10
Mitigating
Article 13
21
Aggravating
Article 14
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
55
Alternative
Article 15
Art. 11. Justifying circumstances. The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following
circumstances
concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants,
or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same
degrees and those consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present, and the further
requisite, in case the provocation was given by the person attacked, that the one making
defense had no part therein.
3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and
second requisites mentioned in the first circumstance of this Art. are present and that the
person defending be not induced by revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury, does an act which causes damage to
another, provided that the following requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.
6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
56
1. Anyone who acts in defense of his person or Rights, provided that the following circumstances
concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Any one who acts in defense of the person or rights of his Relatives such as spouse, ascendants,
descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the
same degrees and those consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are present, and the further
requisite, in case the revocation was given by the person attacked, that the one making defense had
no part therein.
3. Anyone who acts in defense of the person or rights of a Stranger, provided that the first and
second requisites mentioned in the first circumstance of this Art. are present and that the person
defending be not induced by revenge, resentment, or other evil motive.
4. Any person who, in order to Avoid an evil or injury, does not act which causes damage to
another, provided that the following requisites are present; xxx
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a Right or office.
6. Any person who Acts in obedience to an order issued by a superior for some lawful purpose.
(Recall DR SARA)
Unlawful aggression.
Reasonable necessity of the means employed to prevent or repel it.
Lack of sufficient provocation on the part of the person defending himself.
(Recall URL)
Elements of defense of relative
1.
2.
3.
Unlawful aggression.
Reasonable necessity of the means employed to prevent or repel it.
In case of Provocation was given by person attacked, one defending had no part therein.
(Recall URP)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
57
Unlawful aggression.
Reasonable necessity of the means employed to prevent or repel it.
Person defending is Not induced by revenge, resentment or other evil motive.
(Recall URN)
(Recall EGO)
(Recall PerDue)
(Recall OPM)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
58
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.
Self-defense only applies to crimes against persons, as when you are accused of homicide, murder,
or physical injuries. Meaning, it applies to crimes against persons when you are accused of the death of or
injuring somebody, and you claim that you had to do it because you had no choice. I had to act in defense
of my person.
Question: Who bears the burden of proof?
Answer: Generally, it is the prosecutions job to prove the guilt of the accused who is presumed innocent.
However, as these are manners of defense, the burden is shifted to the accused. It is for him to prove these
circumstances; it is not for the prosecution to prove them.
Question: Why?
Answer: Because when you invoke self-defense, you automatically admit that you killed the other, that you
are the author of his death (in case of homicide or murder). So, you better justify the death of the victim.
Give a good explanation as to why you should not go to jail for killing a human being. That is why the
Supreme Court said that defense of self-defense should be proved by clear and convincing evidence which
is approximately proof beyond reasonable doubt.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
59
b.
not liable because you are only doing what the State should be doing for you. So, the State
cannot take that against you. You only have assumed the obligations of the State.
It is recognition of the natural law of self-preservation.
Every living being, whether animal or plant, has the instinct for self-preservation. So, the
concept of self-defense only acknowledges the natural instincts of man. It is absorb to expect a
person not to defend himself when he is under attack because there is a natural instinct for selfpreservation.
Example: A started to insult B, uttering derogatory remarks against B. B hit back and injured A. For the
injury sustained by A, B pleads self-defense.
Question: Can B invoke self-defense?
Answer: No, B cannot claim that he acted in self-defense because B was the aggressor. There can be no selfdefense here because the aggression is verbal. What the law contemplates is physical attack. Insulting
words, no matter how slanderous, cannot cause death or physical injuries. It is directed against your name
or honor, but not your body. So, that does not constitute aggression within the meaning of Article 11(1).
When one claims self-defense, the law assumes that there is no mutual agreement between both
parties to fight, when there is mutual agreement to fight, no one can claim self-defense and each
one is susceptible for each ones injury.
Example: The people agree to fight and in the course of the fist fight; A inflicted injury on B. B inflicted
injury on A. Each one of them files a case against the other for the injuries. They ended up suing each other
for physical injuries. And ob course, the defense of both is self-defense.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
60
A person does not have to be concerned against the wall before he can lawfully defend himself
from an unlawful aggression.
The old concept if self-defense is retreat to the wall. One can only act in self-defense if he is
concerned. Meaning, if somebody is going to kill you, try to avoid him. But if you are already concerned,
you have no more means of escaping that is the only time you can defend yourself. But that concept has
already been DISCARDED.
The rule now is maintaining your ground when in the right. Meaning, if you are walking
peacefully and here comes somebody who wants to stab you, there is no obligation to run. There is no rule,
which requires you to run away, and then when you are already concerned, that is the only time you can
act.
If somebody is going to kill you with a knife, if you are brave, do not run away. Wait for him and
then defend yourself. If you kill him, you still invoke self-defense. It cannot be taken against you. The rule is
stand ground when you are right. You have the right to act where you are because you are not the
aggressor.
Lawful Aggression
Unlawful Aggression
Lawful Aggression
Example: Aggression by a public officer who is acting in the fulfillment of a duty to effect an arrest.
Question: How does he arrest the person?
Answer: According to the Rules of Court, the arresting officer can use such force as may be reasonably
necessary to affect the arrest. And because he can force in the process of effecting the arrest, the policeman
may become an aggressor.
Suppose, here is a thief running with his stolen items. The police are after him. The thief hits back
at the policeman. Now, suppose the police sues him for direct assault. The thief invokes self-defense. His
defense is that the policeman is an aggressor. If the policeman did not try to arrest him, he would not hurt
the policeman. The latter should have left the policeman alone. That cannot be! There is aggression, but it is
LAWFUL aggression. That is the duty of the policeman, so his aggression is lawful in nature.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
61
Unlawful Aggression
Example: If you are walking on the street peacefully and here comes somebody with a knife. He tries to
stab you with it. That is unlawful aggression. Unless he can point to a law which authorizes him to
approach anybody and stab you.
By unlawful aggression, it means that there is danger to your life and limb. Aggression can
either be an actual or threatened aggression. Aggression need not be actual; it could also be a threatened.
Note: There is no problem if the aggression is actual. If it is actual, it is on going.
Question: But does the law expect the aggression to commence before you can act in self-defense?
Answer: No, the law does not really require a person to wait before defending himself because it might be
too late. The law would be demanding too much if it requires that the person defending must first wait for
the aggressor to pull out his gun from his waist before the former can defend himself. When the law says
unlawful aggression, it contemplates of actual aggression or threatened, imminent aggression. A
threatened aggression amounts to actual aggression.
Question: When does a threatened aggression amount to actual aggression? What is the TEST given by the
Supreme Court?
Answer: The criterion reached by the Supreme Court is a threatened aggression amounts to actual
aggression, if the threatened harm is imminent or on the point of happening. Meaning, maybe in less than
one second, you are dead. Your enemy beat you first. So, that is the criterion imminent or at the point of
happening. Therefore, if it does not meet that standard, it is not unlawful aggression.
People vs Cabungcal
51 Phil 803
Facts: The accused is a boatman. His occupation is to transport people across a channel. Just like the
means of transportation when you go to Samal Island. Once, after the fiesta in the island, some passengers
went on board including a drunken man. In the middle of the sea, this drunk passenger started to rock the
banca. The accused warned him. Dont do that, we might capsize. But the drunken passenger continued to
rock the banca.
So, the accused hit this drunken man and the latter fell. But he surfaced and threatened that he
would capsize the banca. In so saying, he again started to rock it, to the point that the women and children
passengers panicked. So, the accused hit his back with the paddle. This made the drunk to drown and died.
Issue: Was there unlawful aggression?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
62
Held: Yes, the accused does not have to wait to find out if the drink passenger was serious or joking. If he
was able to turn it around, they will all die. People will start drowning.
Due to the condition of the river at the point where the deceased started to rock the boat, if it had
capsize, the passengers would run the risk of losing their lives, the majority of whom were women
especially the nursing child. The conduct of the deceased in rocking the boat until the point of it having
taken in water and his insistence on this action despite of the accused warning, gave rise to the belief on the
part of the accused that it would capsize if he did not separate the deceased from the boat in such a manner
as to give him no time to accomplish the purpose. It was necessary to disable him momentarily.
If you will say that the accused will have to wait to see if the drunk will be able to capsize the
banca, you are running the risk of all possibilities that the banca will sink in the middle of the sea. To tarry
for a while might be too late. That is already an actual aggression. There will be more dead if the accused
waited. So, the alleged offender there did not act in defense of his person, but also of strangers.
Example: Suppose, you are inside your house in the second floor, then, somebody from below shouts at
you challenging you to fight, wait there and I will kill you! Hes going to kill you to beat him to it. You
killed him first. You are now prosecuted for his death. You claim self-defense, because there was a threat.
Question: Is the threatened harm imminent? (Take note that he is still has to go up)
Answer: No, the threatened harm is not at the point of realization. A threatening attitude assaults amounts
to actual aggression. That is not self-defense. The most you can invoke there is the mitigating circumstance
of sufficient provocation or threat on the part of the offended party immediately preceding the act, under
Article 13(4).
So, it is a question of evidence. Is there harm now or on the point of happening? Is there death now
or on the point of happening? If the answer is no, then the threatened harm does not amount to unlawful
aggression. It is a future aggression. You have no right to act now simply because there is a threat.
Another important principle in unlawful aggression is the rule lay down by the Supreme Court
that you can only act in self-defense when the aggression is ongoing or about to begin. But once the
aggression has ended and because you wanted to get even, you hit back, that is no longer self-defense. That
is retaliation, getting even. The rule to remember is when the aggression has ceased; there is no more
room for aggression because the danger to life and limb has ended.
Example: Suppose A attacked B, and B landed on the ground, sustaining many blows. Then A left. When
A left, B stood up, chased A and attacked him. B killed A. B claimed that the killing of A is self-defense
because it was A who attacked him first.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
63
People vs Alconga
79 PHIL 366
Facts: The victim here was playing cards blackjack. He was the dealer until he noticed that he was
losing. He suspected Alconga as the one giving the signal to the winning party. So, he started to attack
Alconga by hitting him with a cane. Alconga had to run to the bench but the dealer continued hitting him.
This made Alconga think that the victim was serious. He had to draw his gun, fired at the dealer
and inflicting a wound. When the dealer realized that this time he was wounded, he ran away. Alconga
started to chase him, overtook and fired the second shot, killing the victim. Alconga was accused of
homicide, and his defense was self-defense.
Held: There was no self-defense. When the dealer started to hit Alconga, that constitutes unlawful
aggression. So, that when Alconga shot the victim, he was justified in doing so as he was only acting in selfdefense. But from the moment the victim ran away, the danger to Alcongas life and limb ceased. The
unlawful aggression has ended and therefore, there was no more reason for Alconga to fire the second shot.
But when Alconga gave chase and overtook the victim, he was no longer acting in self-defense. As a matter
of fact, at that stage of the fight, Alconga became the unlawful aggressor.
In other words, there seems to be two stages of fight: the first stage where victim was the unlawful
aggressor, and the second stage where Alconga became the unlawful aggressor because after the first stage
was over, by reason of the running away of the unlawful aggressor, there was no more room for selfdefense because the danger to Alcongas life and limb has ceased. That is already retaliation. That is not the
concept of self-defense.
Another point that you will notice in the law of self-defense is that the law says that self-defense
applies to anyone whoa acts in defense of his person or rights. There is no question about person. When
somebody is trying to hurt or kill me, I can act in defense of my person. But the problem is the rights.
Question: What are the rights, which can be defended under Article 11(1)?
Answer: The right to chastity of a woman. For example, a guy is about to rape a woman and the woman
killed the would-be rapist. She is accused of homicide. She can claim that she acted in self-defense.
Although rape is not considered as a crime against person, but against chastity, a womans right to defend
her honor from sexual attack is considered as a right similar to defending ones person under Article 11(1).
Note: Rape now is a crime against person.
What is controversial here is whether the right to protect ones property can give rise to selfdefense under Article 11(1). If, for example, a thief or robber tries to run with your wallet or jewelry, and in
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
64
order to stop him from running away, you shoot him to death. Can you now claim self-defense? There was
unlawful aggression on your property right because there was an aggression on my property right? Is that
a valid defense?
Answer: No, defense of property can give rise to self-defense under Article 11(1) only if the attack on ones
property is coupled with an attack on his person.
Like for example, a robber tried to get your money and when you tried to resist, he drew out his
knife. So, you have to give him your money. Suppose a robber entered your house and in getting your
property, he tried to kill you killed him first.
Question: But suppose, when that same robber saw you, he started to run away, but when he was about to
jump the window, you shot him. Are you acting in self-defense?
Answer: No, because there is no assault on your person. What justified killing is not the assault on the
property right, but the assault or attack on ones person. So, it must be coupled with an attack on ones
person. The reason is simple: the value of property can never be equated to human life, which is
supposed to be priceless.
People vs Narvaez
121 SCRA 389
Facts: There was a land conflict between a big corporation and some persons, one of whom was
Narveaez. He had a house and a rice mill, which the corporation wants to get from him.
One day, after sleeping inside the house, he woke up and saw men hammering away. They were
putting up a fence around the property. So, Narvaez got his riffle and fired at them, hitting one of the
victims. The others started to run towards the jeep to get their arms. Narvaez also shot and killed all of
them.
He was charged with homicide and his defense is that there was unlawful aggression against his
property. But there was no danger to his life. The aggression against is property was not coupled with an
attack against his person.
Held: Strangely, he was acquitted. This was self-defense. The act of the victims in ordering the fencing of
the home and rice mill of Narvaez constitutes unlawful aggression against his property.
Note: This is a stray decision. It cannot be reconciled with the general rule. This should not be considered
as the controlling rule because it is in fact an aberration.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
65
Question: How do you determine the reasonableness of ones reaction to the aggression?
Answer: It depends on the factors. It depends on the circumstances of the person, time and place.
Question: If somebody is walking in a very dark street which is a very dangerous area, and all of the
sudden somebody in the dark held him tightly at the back, and he responded by hitting his attacker, could
you say that the reaction of the person is reasonable?
Answer: Yes, based on the circumstances of time and place.
But, for example, you are inside the classroom, and then you feel somebody behind you. He
touched you, then you turned around and threw a punch on his face because he might attack you. That is a
different story. That is not reasonable.
Example: Somebody attacks you with sticks; does it authorize you to use your gun? It is unreasonable for a
person, while being attacked by somebody with a Chaco, to use an M206 submachine gun to defend
himself. That is too much! Obviously, there is no proportion between the weapon used by the aggressor
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
66
and the one used by the person defending himself. The weapon used by the aggressor is not sufficient to
kill. Why will you use a weapon that can kill?
However, reasonableness of the weapon is not only measured by using a knife as against a fist,
using a club as against a Chaco. You also consider the following :
The size or power of the weapon
The character of the parties
Their relative standing.
Size
So, if somebody attacks you with a knife, and then you defend yourself also with a knife, you
cannot say that the means is reasonable because his knife is larger, and yours is shorter.
Power
The law says the means is reasonable if a gun is used to defend yourself from somebody who
attacks you with a knife. You say that is reasonable because a gun is more powerful against a knife. Not all
things are being equal. A knife can also kill especially if the assailant succeeds.
Question: When we say reasonable means, are we referring to weapons? Is this the only factor?
Answer: No, there are other factors. You, too, will have to consider the number of aggressors.
Example: You were attacked by fist blows and you used a knife or club to defend yourself. IT might be
unreasonable because you should also use your fist, that is true. But all things being equal, suppose the
aggressor who attacks with a fist is Manny Pacquiao, you are not required to use fist. It is reasonable for
you to use a club because considering the relative strength, you might have the chance with a club. Or you
are attacked by seven men. There are seven who maul you, and you are alone. Here, you may use a club.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
67
If you are a victim of unlawful aggression, even if you defend yourself reasonably, still you cannot
claim self-defense if you were the cause of the aggression, because you gave sufficient provocation. You are
also at fault. You are partly to blame for the other partys reaction. So, I provoked you and because of that
provocation you attack me and I have to defend myself with reasonable means, I cannot claim self-defense
because I am also at fault.
Question: What are the principles to be remembered under the 3rd element?
Answer:
First, there was no provocation at all on the part of the person defending himself. Without doing
anything, somebody attacks you. There was total absence of any provocation.
Second, the person defending himself might have given some provocation but it is not sufficient. In the
sense, the law allows him to plead self-defense because, even if he gave provocation, it is not commensurate
with the reaction on the attacker.
Third, the person defending himself might have given sufficient provocation, but his provocation was
not immediate to the act of aggression, he can still invoke self-defense.
Example: I provoked Mr. A today, but he did not react. Then, after six months, when we met at San
Pedro St., he started to attack me. So, I have to defend myself.
Question: Can I claim self-defense?
Answer: Yes, because the provocation was not proximate or immediate to the act of aggression. IT is
different if I provoke you now, you react immediately.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
68
Meaning, I gave a provocation now, sufficient provocation. You attack me and I kill you, there is no
self-defense because of the absence of the 3 rd element. But id I gave a provocation now, and then you
attack me one year from now, and I kill you, I can claim self-defense. You cannot invoke the provocation
I gave last year to defeat my claim for self-defense.
Note: Three is a close co-relation between the first and the third elements unlawful aggression and lack of
sufficient provocation.
An aggression may also be a provocation. When I attack you that could be a provocation on my
part for you to be also aggressor against me. My aggression, which should work against me, could be a
provocation on my part in order for you to also become an aggressor. It is convertible.
That is very illustrated in the case of Alconga. The deceased attacked Alconga with a club. So, the
deceased is the unlawful aggressor. Then, when Alconga fought back and the deceased realized that he was
wounded, the deceased run away. So, there is no more aggression but Alconga pursed him and killed him.
Alconga was accused for the death of the victim.
2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those
consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the
next preceding circumstance are present, and the further requisite, in case the revocation was given by the
person attacked, that the one making defense had no part therein.
That is called the justifying circumstance on DEFENSE OF RELATIVES. If you act for the defense of
yourself, there is no reason why you cannot act for the defense of your relatives. That is based on two
reasons: humanitarian and blood ties.
69
Spouse
Ascendants
Descendants
Brothers and sisters, whether legitimate, illegitimate, natural or adopted
Relatives by affinity, within same degrees, like:
o Parents-in-law
o Son-in-law
o Daughter-in-law
o Brother-in-law
Relatives of consanguinity within fourth civil degree
3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second
requisites mentioned in the first circumstance of this Art. are present and that the person defending be not
induced by revenge, resentment, or other evil motive.
Briefly: Defense of Strangers
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
70
The elements are the same with the two first elements of self-defense.
1. Unlawful aggression
2. Reasonable necessity of the means employed to prevent or repel the aggression
3. That the person defending be not induced by revenge, resentment or other evil motive.
So, what differs this is third element. It means that you were motivated by humanitarian sentiment.
You really did it to defend the stranger. You were not induced by revenge, resentment, or other evil motives.
Example: I am looking for my enemy because I want to kill him and then when I saw him, he was
attacking somebody, so I entered the scene and killed him. Let us assume these things are established
because these are matters of evidence.
Question: Am I entitled to complete defense of stranger?
Answer: No, actually it was just coincidence that my enemy was attacking a stranger and since the
aggressor was my long time enemy, it was apparent that I was induced by revenge, resentment, or other
evil motive.
4. Any person who, in order to avoid an evil or injury, does not act which causes damage to another,
provided that the following requisites are present;
Briefly, this is justifying circumstance of State of Necessity or the Emergency Rule. You are
confronted with a situation where you are left with no choice because either way you do it; you also cause
him harm, injury, or damage to the property of another. In order to avoid evil or injury to yourself, you
commit acts which would also injure others, provided that the three requisites are present.
Examples:
1.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
71
But suppose, I am also over speeding and even if I apply brakes, I will still collide with the truck.
Then I cannot avail of this rule in case I injure or kill somebody because the emergency rule cannot invoke
by the person who caused the state of emergency.
2.
To save more properties from fire, a property will be sacrificed destroy three or more houses to
save fifty houses.
3.
Note: No one can invoke emergency rule if he brought out the emergency himself. One who causes the
emergency rule has no right to invoke the emergency rule.
Like a person who is over speeding and saves his life by killing somebody. He wanted to avoid
collision. He is not entitled to the rule because he is the one who brought out emergency himself.
As we shall see later, and even as expressed in Article 101 of the RPC, this is the only justifying
circumstance where there is no criminal liability, but there is civil liability. Normally, the person who
successfully invokes and proves any of the justifying circumstances under Article 11 does not incur any
criminal liability. This paragraph is where there is no criminal liability to be borne by the persons benefited
by the act.
5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.
This provision is short, but actually, it talks of three separate and distinct justifying circumstances:
One who acts in the fulfillment of duty
One who acts in the exercise of a right
One who acts in the exercise of an office
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
72
The use of force may be improper if the person to be arrested is peacefully surrendering. So, for
example, if the guy is surrendering, there is no need to use force. Moreover, if the person who surrendered
sues you for using force against him, then you cannot claim that it is a fulfillment of a duty because your act
is improper. The Rules of Court requires that the use of force must be reasonable.
People vs Delima
Facts: Policeman Delima is tasked to arrest a dangerous escapee-convict. When he tried to apprehend the
convict, the latter fought back with a sharpened bamboo pole. But the policeman was able to evade the
attack and the convict turned around and ran away. So, Delima had to shoot him. He was accused of
homicide.
Issue: WoN Delima is liable for homicide.
Held: He is not liable because he acted in the fulfillment of duty to arrest the convict. There was no other
way of apprehending the victim and the latter showed that he was resisting the arrest. As a matter of fact,
he attacked Delima earlier and he was running away, he was taking with him the bamboo pole. That
showed his determination not to surrender. There is no other way of catching him alive and the only way is
to kill him.
This Delima case is often confused with the Alconga case. In the case of Alconga, the victim was
already running away, he was chased and killed by Alconga. The court ruled there that Alconga was liable.
How come here in this case the ruling is different when the facts are identical because here the victim was
also running away, and so, there is no more unlawful aggression?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
73
the two rulings because the philosophy behind self-defense is not the same as the philosophy behind the
fulfillment of a duty.
For example, the policeman is going to arrest you and then you tried to kill him, instead of
surrendering. So, the policeman killed you. What is the difference? As a matter of choice, I can invoke selfdefense, but he could also claim fulfillment of duty. But when you turn your back and run away, you dont
give up to the policeman has no choice, so he killed you. Self-defense is not anymore there. But he can still
rely on paragraph 5 fulfillment of duty.
Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion or
usurpation of his property. (n)
A lawful owner of a property has the right to defend his possession of the property and for this
purpose he may use such force as may be reasonably necessary in order to prevent or repel an actual or
threatened invasion of his property.
Question: If, for example, a group of people is going to forcibly occupy your land, do you have the right to
drive them out?
Answer: Of course!
Question: If you are sued by these people for driving them out, what is your defense?
Answer: The right to defend your property. But do not invoke Article 11(1), instead you invoke paragraph 5
because you are acting in the exercise of a right.
But take note, under Civil Code, the use of force to defend your possession of property must be
reasonable. For example, a pickpocket grabbed your expensive watch. You chased him. In order to prevent
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
74
him from escaping, you drew your gun and shot him in the leg. As a result of which he could no longer
run. You are able to recover your watch. He sues you for physical injuries for the wound you inflicted in his
leg.
Question: Can he invoke paragraph 5 that he acted in the exercise of his right?
Answer: No, because while under paragraph 5, in relation to Article 429 of the Civil Code, the owner or
possessor of a property has the right to exclude any person from enjoyment or disposal of his property, the
law requires that in doing so, he may use such reasonable force to prevent or repel an actual or threatened
unlawful physical invasion or usurpation of his property. It was not reasonable for the owner of the watch
to kill the thief to recover the watch. That is based on the principle that no one is justified to take life
simply because of property.
Question: Suppose you are the official executioner. You are the one assigned to condemn the convict to
death by electrocution or lethal injection. The convict died. So, now you are sued. What is you defense?
Answer: That you acted in the lawful exercise of an office. You are an executioner. That is your job.
But, take note paragraph 5 says in lawful exercise xxx office. So, the exercise of an office must be
proper. For example, the execution is at 3:00 pm. Do not execute him at any other time, say 12:00 noon. That
is improper because the President might grant him pardon or commutation of the sentence. But if you
execute him on time, and you are charged with homicide, you can invoke paragraph 5 as a defense.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
75
Another example: As a surgeon, you have to amputate the leg of a patient because of gangrene. You
have to save his life by amputating his leg and after that the patient sued for the crime with Mutilation of
second type, which is punishable by the RPC.
6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.
Requisites:
1. That an order has been issued by a superior;
2. That such order must be for some lawful purpose; and
3. That the means used by the subordinate to carry out said order is lawful.
The best examples are people in the military or police. They are normally following orders. The
Supreme Court said that the order must be lawful or at least prima facie lawful, and the means to carry out
the order must be lawful.
If you are a subordinate, you were just ordered by a superior, you followed the order it turned out
to be illegal. Now, you are being sued. Your defense is that you are just following the order of a superior
officer. That is not a valid defense. The condition is that the order must be lawful.
Question: So, going back to the whole Article 11, what is the basis for not being criminally liable?
Answer: That the act is justified. The act is in accordance with law. If that is so, the accused does not incur
criminal liability and obviously, it follows that is the act is in accordance with law, he is not also incur any
criminal or civil liability, except in paragraph 4 (state of necessity) where there is civil liability.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
76
Exempting Circumstances
Question: What is the essence of an exempting circumstance?
Answer: An exempting circumstance is a circumstance which, if present in the commission of a crime,
makes the offender exempt from criminal liability. He is not criminally liable for the crime committed
because when he committed the felony, he acted without intelligence, or without freedom, or without
intent or negligence. And therefore, since there is the absence of any of these, the felony was not committed
with voluntariness.
Art. 12. Circumstances which exempt from criminal liability. The following are exempt from
criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid interval.
When the imbecile or an insane person has committed an act which the law defines as a
felony (delito), the court 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.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
77
Answer: It has a medical definition, but the legal concept of insanity is the inability to distinguish what is
right from what is wrong.
People vs Dungo
199 SCRA 660
Under foreign jurisdictions, there are three major criteria in determining the existence of insanity:
1.
Delusion Test insane delusion is manifested by a false belief for which there is a number of
reasonable basis and which would be incredible under the given circumstances to the same person
if he is of compos mentis (of sound mind). An insane person believes in a state of things, the
existence of which no rational person would believe.
2.
Irresistible Impulse Test A person acts under an irresistible impulse when by reason of duress or
mental disease, he has lost the power to choose between right and wrong, to avoid the act in
question, his free agency being at the time destroyed. In other words, he can distinguish between
right and wrong, but he has lost the power to choose. He cannot resist the urge to commit a crime
because he has no power to choose, although he recognizes the different between right and wrong.
3.
Right and Wrong Test A person is insane when he suffers from such perverted condition of the
mental and moral faculties as to render him incapable of distinguishing between right and wrong.
In the Philippines, there is no definite criterion for insanity. But the Supreme Court
adopted a definition from the Revised Administrative Code, Section 1039, which states that
insanity is a manifestation in language or conduct, of disease or defect of the brain or a more or less
permanently diseased or dishonored condition of the mentality, functional or organic, and
characterized by perversion, inhibition, or dishonored function of the sensory or of the intellective
faculties, or by impaired or dishonored violation. Insanity, as defined above, is evidenced by a
deranged and perverted condition of the mental faculties, which is manifested in language or
conduct. An insane person has no full and clear understanding of the nature and consequences of
his act.
People vs Mancao
49 PHIL 887
Facts: This is a case involving an epileptic. During the influence of an epileptic fit, he attacked the victim.
He committed a crime. He pleaded insanity as a defense.
Issue: WON he is liable or not.
Held: Epilepsy is not insanity from medical point of view. But from the point of view of the law, that is
precisely the concept of insanity. He cannot distinguish what is right from wrong, because the condition of
the mind is not the same.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
78
It is important to note, however, that the epileptic, to be exempt form liability, must have committed
the crime at the very moment that he was under the influence of an epileptic fit. Otherwise, even is he is an
epileptic; he is not exempt from liability if he did not commit the crime during an epileptic attack.
People vs Tanco
58 PHIL 255
Facts: A somnambulist or sleepwalker, while sleeping, got up. Got a bolo and upon meeting is wife tried
to stop him, wounded her and also attack other persons.
Held: He is not criminally liable, it appearing that the act was committed while in a dream. He is covered
by the term insanity because at the time he committed the crime, he lack intelligence.
Under the law, even if you are medically insane, if you commit a crime during lucid interval, you
are liable. There are types of insanity where the doctor will say that he is insane for a certain time and for
another time, he is normal. The lucid interval is the period of sanity. There are also types of insanity where
there are no lucid interval. If they are in their lucid interval, they are liable because during that period they
are sane and therefore they can distinguish what is right from what is wrong.
There are persons who are not normal during full moon lunatics. At the last quarter, they become
normal. The mind is affected by the movements of the moon, like the waves, high tide if full moon. There
must be scientific explanation in that. How come some persons during those periods manifest some kind of
lunacy?
3. A person over nine years of age and under fifteen, unless he has acted with discernment, in
which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of
this Code.
When such minor is adjudged to be criminally irresponsible, the court, in conformably with the
provisions of this and the preceding paragraph, shall commit him to the care and custody of his family
who shall be charged with his surveillance and education otherwise, he shall be committed to the care
of some institution or person mentioned in said Art. 80. (note: obsolete)
Paragraph 2 and 3 are identical. This is called the exempting circumstance of MINORITY.
-paragraph 2 - a person under nine years of age;
-paragraph 3 a person over nine years of age and under fifteen
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
79
Question: When a minor is exactly nine years old. Where will he fit-the 2nd or 3rd paragraph?
Answer: The Supreme Court said he falls under paragraph 2, because, as interpreted by the SC, under
nine means nine years old or below. Otherwise, there will be a vacuum. So, if he is exactly 9, he is under
the 2nd paragraph.
Suppose, the child is a wonder boy, whose mental development is advanced and so can distinguish
between a minor who is mentally advance and one who is not. Insofar as the 2 nd paragraph is concerned,
there is a conclusive presumption of law that when a minor is nine or below, he has no intelligence. He
cannot distinguish right from wrong. That is conclusive and cannot be overcome.
But the prosecution would insist that it has proven that the boy knows what is right and what is
wrong. At the age of eight, he already wrote a book on ethics, or he is a chess grandmaster. Question: Is
that allowed? Answer: NO, the exemption is binding. If the child is 9 or below, he is exempt. That is
conclusive and cannot be changed anymorecomplete exemption.
80
Issue: Is the term discernment synonymous with intent? (Such that if there is no intent, there is no
discernment)
Held: The word intent has been defined as a determination to do a certain thing, an aim, the purpose of
the mind including such knowledge as is essential to such intent; or the design, resolve with which a
person acts. It is this intent which comprises the third element of dolo as a means of committing a felony,
freedom, and intelligence being the other two.
On the other hand, discernment conveys thoughts. While both are products of the mental
processes within a person, the former (intent) refers to the desired effect of ones act; while the latter
(discernment) relates to the moral significance that a person ascribes to the said act. Hence, a person may
not intend to shoot another but may be aware of the consequences of his negligent act which may cause
injury to the same person in negligently handling an air rifle.
It is not correct, therefore, to argue as accused-petitioner Guevarra does, that since a minor over 9
but under 15 acted with discernment, then he intended such act to be done. He may negligently shoot his
friend, thus did not intend to shoot him, and at the same time recognize the undesirable result of his
negligence.
Intelligence embraces the concept of discernment. Discernment is not equivalent to intent.
Intelligence which includes discernment is a distinct element of dolo as a means of committing an offense.
Therefore, discernment is part of intelligence. And there are three things there to make the act voluntary
freedom, intelligence and intent. Intent is in the mind, intelligence is in the mind, and discernment is
embraced in intelligence.
In felonies committed by means of culpa, three elements are indispensable- intelligence, freedom of
action and negligence. Intent is wanting in such felonies. However, intelligence remains as an essential
element. Therefore, it is necessary that the minor between 9 to15 be possessed with intelligence in
committing a negligent act. To be liable, he must discern the rightness or wrongness of the act. (ART. 80 is
repealed by PD 603)
Meaning, I did not shoot you intentionally, but Im aware that what happened is wrong. That is
what is meant by discernment-you know what is wrong. But you did not intend it to happen.
4. Any person who, while performing a lawful act with due care, causes an injury by mere
accident without fault or intention of causing it.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
81
Elements:
(i)
that the compulsion is by means of physical force;
(ii)
that the physical force must be irresistible;
(iii)
that the physical force must come from a third person.
6. Any person who acts under the impulse of an uncontrollable fear of an equal or
greater injury.
Elements
(i)
that the threat which cause the fear is of an evil greater than, or at least equal to that which he is
required to commit;
(ii)
that it promises an evil of such gravity and imminence than the ordinary man would have
succumbed to it.
The basis of paragraph 5 and 6 is the absence of freedom of action. There is intelligence, there is intent, but
there is no freedom. You were literally compelled against your will to commit the felony. Actus invito factus
non est meus actus. An act done against my will is not my act.
When you allege that there is an irresistible inner force which makes me commit a crime. I was
possessed by a demon. That is NOT covered. It may be insanity, but definitely you cannot invoke
irresistible force there.
US vs. CABALLEROS
4 PHIL 350
Facts: This is a case where some American school teachers were murdered by a band. Accused Baculi was
then in a plantation gathering bananas. Upon hearing the shooting, the poor farmer ran towards the scene
of the crime. However, he was seen by the leader of the band. They struck him with the barrel of their
rifles and compelled him to bury the corpses. He was caught by the authorities and was charged as
accessory in the murder of the Americans for concealing the body of the crime.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
82
Held: Baculi was not criminally liable as accessory for concealing the body of the crime of murder
committed by the band because he acted under the compulsion of an irresistible force.
The second one (uncontrollable fear) is more common. The offender is compelled to commit a crime
against his will by means of threats. In order to avail of this, there must be a demonstration that:
(i) There is no possibility of defending yourself from the threat. Meaning if you threaten me with a
gun, I have no obligation to fight back just to avoid committing the crime.
(ii) There is no possibility of escaping from the threat. If there is a chance of escaping so that you will
commit the crime, then you are not covered.
(iii) The threat must be of equal or greater injury. It must be clear, concrete, not speculative.
7. Any person who fails to perform an act required by law, when prevented by some lawful
insuperable cause.
ELEMENTS:
(i)
(ii)
(iii)
This exempting circumstance applies exclusively to people who are charged with felony by
omission. Here, the offender is not prosecuted for doing an act, but for failing to do an act.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
83
Question: What is your defense when you failed to do an act as required by law?
Answer: I was prevented by a lawful cause or an insuperable cause. That is the defense.
Example: The accused is a Filipino citizen who is a priest. Somebody in the confessional confessed to him
as being a co-conspirator in the crime of treason. So, the priest learned about it. If he does not
report the matter to the authorities, he violates the law, as criminally liable for misprision of treason
under Article 116 of the RPC. If he reports the matter to comply with the Penal Code, he violates
the seal of confession. Then later, the conspirator was arrested, investigated and he admitted that
the person to know about it was the priest. So, the priest is now charged with Misprision of
Treason. Question: What is the defense of the priest? Answer: He was prevented by a lawful
cause (secrecy of confession) from revealing the matter.
Question: What do you mean by prevented by an insuperable cause?
Answer: A cause beyond the control of the peace officer.
Example is an officer who is prosecuted under Article 125 for the crime of Delay in the Delivery of
Detained Persons to Proper Judicial Authorities.
Example: The accused is a Filipino citizen who is a priest. Somebody in the confessional confessed to him
as being a co-conspirator in the crime of treason. So, the priest learned about it. If he does not report the
matter to the authorities, he violates the law, as criminally liable for misprision of treason under Article 116
of the RPC. If he reports the matter to comply with the Penal Code, he violates the seal of confession. Then
later, the conspirator was arrested, investigated and he admitted that the person to know about it was the
priest. So, the priest is now charged with Misprision of Treason. Question: What is the defense of the
priest? Answer: He was prevented by a lawful cause (secrecy of confession) from revealing the matter.
Example is an officer who is prosecuted under Article 125 for the crime of Delay in the Delivery of
Detained Persons to Proper Judicial Authorities. In case of lawful warrantless arrests, a peace officer or a
private person may arrest another even without a warrant and detain him. But there is a limit as to
maximum number of hours within which the detaining officer is allowed to detain the person arrested. If
the arresting officer wants to detain him further, hed better file the necessary criminal information in court.
If the person arrested is detained beyond that period without being lawfully charged in court, the detaining
officer is liable.
ARTICLE 125, RPC. Delay in the delivery of detained persons to the proper judicial authorities
The penalties provided in the next preceding article shall be imposed upon the public officer or employee
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
84
who shall detain any person for some legal ground and shall fail to deliver such person to the proper
judicial authorities within the period of:
twelve (12) hours for crimes or offenses punishable by light penalties, or their
equivalent;
eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their
equivalent: and
Thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties,
or their equivalent.
In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon
request, to communicate and confer at any time with his attorney or counsel.
Suppose a policeman caught somebody without warrant because he was actually committing
murder or homicide in the hinterlands a certain very far away barangay. He was to bring him to town and
to formally charge him in court. But it takes 3 to 4 days to reach the town proper from the said barangay. So,
how can he comply with his duty within 36 hours (because murder or homicide is a grave felony) to charge
the person arrested. He should keep him within 36 hours only, otherwise he should be liable.
So, necessarily, he detained him for more than 36 hours. By the time he reached the town, it is more
than 36 hours. So, the policeman is charged of Delay in the delivery of detained person.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
85
2.
Article 7 light felonies are punishable only when they are consummated, except those committed
against persons or property. So, the rule is: attempted or frustrated light felonies are not
punishable if they are not committed against persons or property. This is an exemption from
liability for reason of public policy. But if the light felony is committed against persons or property,
they are punishable even if attempted or frustrated.
3.
4.
Article 20 where the accessory who is related to the principal is exempt from criminal liability
5.
Instigation
In entrapment, a person has planned, or is about to commit, a crime, and ways and means are
resorted to by a public officer to trap and catch the criminal. Entrapment is not a defense. In entrapment,
the person has decided to commit a crime and the police officer went along with him, pretending to be
agreeing to its commission. Then when the criminal is in the act of committing the crime, the peace officer
who pretended to do along with him will now be instrumental in arresting him. Now, that is not a defense
when you entrapped. It is not an exempting circumstance.
For example, a buy-bust operation against drug pusher. A peace officer will pretend to be a user or
drug addict and he will buy from the pusher. Upon giving the signal to his companions, the pusher is
arrested. That is entrapment.
Take note that in entrapment, the idea of crime did not come from the policeman but from the
person arrested. The policeman only resorted to ways and means to catch the criminal in the act of selling
prohibited drugs. But in instigation, the idea of committing a crime came from the policeman himself. It
was he who induces an innocent person to commit a crime.
Question: Suspecting that Juan was a drug pusher, SPO2 Mercado, leader of a NARCOM Team, gave Juan a
P100-bill and asked him to buy some marijuana cigarettes. Desirous of pleasing SPO2 Mercado, Juan went
inside a shopping mall, while the officer waited in one corner of the mall. After 15 minutes, Juan returned
with 10 sticks of marijuana cigarettes which he gave to SPO2 Mercado, who thereupon placed Juan under
arrest and charged him with violation of the Dangerous Drugs Act for selling marijuana cigarettes. Is Juan
guilty of any offense punishable under the Dangerous Drugs Act?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
86
Answer: There is instigation here. This is not an entrapment. Juan was not a pusher. In fact, it was SPO2
Mercado who asked Juan to buy marijuana cigarettes for him. It was only because Juan wanted to please
Mercado that the latter bought the said marijuana cigarettes. Therefore, Juan is not guilty of any violation
of the Dangerous Drugs Act.
The exempting circumstances under Article 12 are based in the philosophy that there was lack of
voluntariness because of the absence of freedom, intelligence or intent. The other exempting circumstances,
which are not found under Article 12, exempt the offender from criminal liability not because there was no
voluntariness but because of public policy.
EXEMPTING CIRCUMSTANCE
The offender committed a crime, but when he
committed it, there was no voluntariness on his
part because he acted without freedom,
intelligence or intent.
There is civil liability, except in paragraph 4
(accident) and paragraph 7 (lawful or insuperable
cause).
Acc
For
Fear
Fail
1. An Imbecile or an insane person, unless the latter has acted during a lucid interval. xxx
2. A person Under nine years of age.
3. A person over nine years of age and under fifteen, unless he has acted with Discernment, in
which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of
this Code. xxx
4. Any person who, while performing a lawful act with due care, causes an injury by mere
Accident without fault or intention of causing it.
5. Any person who act under the compulsion of irresistible Force.
6. Any person who acts under the impulse of an uncontrollable Fear of an equal or greater injury.
7. Any person who Fails to perform an act required by law, when prevented by some lawful
insuperable cause.
(Recall IUDAccForFearFail)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
87
C
I
N
(Recall ACIN)
(Recall PIT)
Elements of Uncontrollable Fear
Gr
Im
1) Threat causes fear of equal or Greater evil than that required to commit it.
2) Evil so Imminent and grave that ordinary man would succumb to it.
(Recall GrIm)
(Recall FaReIn)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
88
MITIGATING CIRCUMSTANCES
Question: Define mitigating circumstances in general.
Answer: In general, mitigating circumstances refers to those circumstances which, if present in the
commission of a felony, makes the offender liable but it would reduce or mitigate the imposable penalty
because when he committed the felony, he committed it with reduction or diminution of freedom, intent or
intelligence.
Therefore, there was less degree of voluntariness in committing the crime. Or because the offender
has shown in the commission of the crime or afterwards a lesser degree of moral depravity or perversity.
circumstances:
(1) Those mentioned in the preceding chapter, when all the requisites necessary to justify the act or to
exempt from criminal liability in the respective cases are not attendant.
(2) That the offender is under eighteen years of age or over seventy years. In the case of the minor, he
shall be proceeded against in accordance with the provisions of Article 80. (Note: Article 80 is amended
by sec 192, PD 603)
This is also known as mitigating circumstance of MINORITY and SENILITY because the offender
is below 18 or over 70 years old.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
89
You will note that the age of a person plays a big role in determining his mental liability, or the
proper imposable penalty under the Penal Code.
AGE
9 years & below
Over 9 under 15
16 to 17 years old
18 to 70 years old
Over 70 years old
DESCRIPTION
Age
of
complete
irresponsibility
Age of conditional criminal
responsibility
Age of mitigated
responsibility
Age of complete
responsibility
Age of mitigated
responsibility
EFFECTS
Exempting (Article 12(2)
criminal
criminal
None
criminal
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
90
Question: Is there a need for corroborative evidence? (i.e. aside from the accuseds testimony, you will
present his birth certificate or the testimony of his father or mother or anybody older than the accused). To
establish the mitigating circumstance of minority, will the testimony of the accused be sufficient, or must he
present corroborative evidence to prove his age considering the fact that his statement might be considered
as self-serving on his part?
Answer: In the case of People vs. Lugto (190 SCRA 754), the Supreme Court said that the accused has the
burden of proof to show that he was a minor at the time of the commission of the crime. So, if you have the
burden of proof, your testimony alone does not seem sufficient. You have to present corroborative evidence
to make it convincing.
However, the Supreme Court re-examined the Lugto ruling:
(3) That the offender had no intention to commit so grave a wrong as that committed.
Obviously, this only applies to intentional felonies. This will not apply to culpable felonies. This is
related to Article 4 (1) on praeter intentionem.
PROBLEM: A, with the intent of inflicting physical injuries on B, hit B with his fist. The latter fell down and
his head hit a concrete pavement, thereby fracturing his skull. And he subsequently dies. Question: Is A
liable for the crime of slight physical injuries which he intended, or is he liable for homicide that resulted?
Answer: He is liable for homicide, the crime that resulted, applying Article 4 (1), that one is liable for the
felony actually committed although it is different from the one which he intended.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
91
Question: Is A entitled to any circumstance in his favor, assuming that he is liable for the crime that
resulted?
Answer: YES, he is entitled to the mitigating circumstance under Article 13 (3) that the offender had no
intention to commit so grave a wrong as that committed.
(4) That sufficient provocation or threat on the part of the offended party immediately preceded the act.
Sufficient Provocation
It seems to be closely linked to the 3 rd element oh self-defense lack of sufficient provocation on the
part of the person defending himself. So, we will connect this with self-defense.
The best illustration is the case of Alconga. The deceased attacked Alconga with a piece of wood.
Alconga defended himself by shooting the deceased. When the deceased realized he was slightly wounded,
he turned his back and ran away. Alconga chased him, overtook him and killed him on the spot. Question:
Is Alconga entitled to the justifying circumstance of self-defense for the death of the victim? Answer: NO,
because there was no unlawful aggression. While it is true that there was unlawful aggression on the part
of the victim earlier, it has already ceased when the victim ran away. There is no more danger to the life and
limb of Alconga, and therefore, there was no more reason for him to defend himself. As a matter of fact, in
the second stage of the fight, Alconga became the unlawful aggressor.
Question: If Alconga is liable for homicide for the killing of the victim, is he entitled to any circumstance in
his favor?
Answer: YES, he is entitled to the mitigating circumstance under Article 13 (4) that sufficient provocation
on the part of the offended party immediately preceded the act.
Question: Can Alconga not claim the benefit of incomplete self-defense under Article 13 (1)?
Answer: NO, because there is lacking the requisites. Where there is no unlawful aggression, nothing exists.
Therefore, there is no self-defense, complete or incomplete.
Question: Suppose, when Alconga was chasing the victim, the victim was forced to fight back and in the
process he killed Alconga, can he claim self-defense under Article 11 (1)?
Answer: NO, because of the absence of the third element lack of sufficient provocation on the part of the
person defending himself. The reason why Alconga attacked is because earlier he attacked Alconga. So, he
gave sufficient provocation. Because of the absence of the third element, he is not entitled to complete selfdefense.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
92
(5) That the act was committed in immediate vindication of a grave offense to the one committing the
felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or
relatives by affinity within the same degree.
The essence of this circumstance is REVENGE. Somebody commits a wrong, a grave offense to you
or a member of your family, a relative, and you seek revenge. Like for example, somebody kills your
brother, so you look for the killer to kill him. Now, that revenge can never be justified under the law. It does
not exempt you from liability if you kill somebody because he killed a member of your family. That can
never be justified. Revenge is mine, says the law.
However, the law understands the feeling of the accused. He did it because a grave offense was
committed against him, or a member of his family. So, the law recognizes the diminution of ones penalty
if he acts in retaliation.
The relatives mentioned in this paragraph 5 are identical with the relatives mentioned in Article 11 (2) defense of
relatives. All of them are the same except one, relatives by affinity within the fourth civil degree. They are not
mentioned in this Article.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
93
Question: What do you mean by grave offense? Does this mean to say you are a victim of a grave felony,
as defined in Article 9?
Answer: NO, the word grave here is not identical with the technical definition of grave felony. What it
means is somebody offended you seriously. If it is serious, it is not necessarily a grave felony.
Question: And how do you determine if the wrong committed upon you or your relative is serious?
Answer: It depends on many factors. You consider the nature of the act committed by the victim, the age of
the offender, the social standing. What is serious to one may not be serious to another.
US vs. AMPAR
37 PHIL 201
Facts: There was party during a fiesta where the accused who is an old man went to the victim who was
serving lechon. Ampar asked for lechon. The victim played a joke on Ampar. In the presence of many
guests, the deceased insulted the old man, saying: There is no more. Come here and I will make roast pig
out of you. It was a joke, and all the guests laughed. But the deceased made a mistake. Maybe the joke
would not have bothered if it was a young man, but to the old man, it was something else. So, the old man
left, got an ax. A little later, while the deceased was squatting down, the old man came up behind him and
struck him on the head with the ax.
Held: He acted in vindication of a grave offense committed against him. It was just a joke, but considering
his age and the occasion, it was something serious. You should not play jokes on or ridicule in the presence
of others.
Take note that the law says that you x x x committed the act in the immediate vindication x x x you
committed the act in immediate vindication. Just like in the previous mitigating circumstance, that
sufficient provocation or threat on the part of the offended party immediately preceded the act.
However, there is a difference between the word immediate in paragraph 4 and the word
immediate in paragraph 5. In the previous mitigating circumstance, sufficient provocation or threat on
the part of the offended party immediately preceded the act. In paragraph 4, the interpretation of the word
immediate there is literal. There must be no gap between the threat or provocation and the crime. You
commit a crime immediately after the provocation or threat. In paragraph 5, the use of the word
immediate is not really literal.
Question: For example, a man is killed and after the funeral of the deceased, the son looks for the killer and
kills him. And he finds the killer after one month. So, he kills the killer for killing his own father. Would
you say that the killing was immediate after the grave offense was committed against the father?
Answer: It is not. It is not immediate. There was a gap of one month. But there is a relation of cause and
effect between the crime committed by the killer and the crime which the son now commits against the
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
94
killer. So, the word immediate there is misnomer because the word immediate is an incorrect
translation of the original Spanish word proxima. The appropriate translation would be proximate. That
the act was committed in the PROXIMATE vindication of a grave offense.
Question: What is the difference between proximate and immediate?
Answer: In proximate, the act is not immediate in point of time of the grave offense, but what is also
important is that there is still the relation of cause and effect between them.
(6) That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.
Sometimes, we experienced that. When you become very angry, sometimes you think or utter
words which you will later regret. When you have cooled down, you realize that you should have not
uttered such words. But why is that when you are angry or when you are not thinking, you do things
which you actually do not mean?
Why? Because your mind is obfuscated. That in the mind, the decision was prompted by emotion
rather than by reason. That is why there is this nice saying: When you are angry, do not make any decision.
When you are happy, do not make any promises. That is fair enough.
There are some principles on this:
(1) The passion or obfuscation must arise from lawful sentiments.
US vs. HICKS
14 PHIL 217
Facts: A married man was maintaining an illicit relationship with a woman, a concubine. After a while, the
concubine told him. I think I have to stop this relationship. I have no future with you. In the first place, you
are married. I want to have my own life. Of course, the man became emotional and killed the woman
because he could not bear the thought of this woman separating from him, when they have been together
for 7 years.
In his defense, he pleaded the circumstance of passion and obfuscation, that he was obfuscated
when the girl said that she wanted to part ways with him.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
95
Question: Now, suppose a person became of an act a terrible act committed by the victim against him,
retaliated by killing the victim. So, he says I killed him because of sufficient provocation or threat on the part of the
offended party immediately preceding the act, so I am entitled to the mitigating circumstance #5 because I committed
the act in the immediate vindication of a grave offense committed against me, and also I am entitled to #6 because I
acted on an impulse so powerful as would naturally produce passion. So, I am entitled to three mitigating
circumstances. Is that correct?
Answer: No, he is entitled to only one because numbers 4, 5 and 6 have the same source. They have a
common denominator that the mind is actually overwhelmed by anger or emotion. So, he cannot claim
three mitigating circumstances. Assuming that all of them will apply, the application of one is sufficient.
You cannot claim three separate mitigating circumstances.
7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that
he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the
prosecution;
These (voluntary surrender and voluntary confession) are the most common mitigating circumstances
invoked in court. If the two are present, definitely the accused is entitled to two mitigating circumstances.
Voluntary Surrender
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
96
After the killing, the accused went to the police and gave up. The reason behind this is that he has
shown a lesser degree of perversity that he is willing to answer for the crime he committed. He is better
that the one who has remained at large.
Question: To whom shall the accused surrender?
Answer: The accused should surrender to the right person, to a person in authority or his agent.
Question: Who is a person in authority or his agent?
Answer: The guide is in Book II
ARTICLE 152, RPC. Person in authority and agents of person in authority Who shall be deemed as
such In applying the provisions of the preceding and other articles of this Code, any person directly
vested with jurisdiction, whether as an individual or as a member of some court or government
corporation, board or commission, shall be deemed a person in authority. A barrio captain and barangay
chairman shall also be deemed a person in authority.
A person who by direct provision of law or by election or by appointment by competent authority,
is charged with the maintenance of public order and the protection or security of life and property, such as
barrio captain, barrio councilman, barrio policeman and barangay leader and any person who comes to the
aid of persons in authority, shall be deemed an agent of a person in authority.
In applying the provisions of Article 148 and 151 of this Code, teachers, professors and persons
charged with the supervision of public or duty recognized private schools, colleges and universities, shall
be deemed persons in authority.
So, if you surrender to a clerk of the City Hall, you will not fall under this because an ordinary clerk
of the government is not a person in authority. He is not also an agent of a person in authority. He must fit
the definition in Article 152. Also, you must surrender yourself. Like in one case, the accused killed
somebody. And then, he sent his weapon to the police, the murder weapon. Is that necessary? The Supreme
Court said that is not surrender, because you should surrender your body, not the weapon.
97
o
o
In the absence of these two reasons, and in the event the only reason where the accused is supposed to
surrender is to ensure his safety his arrest being inevitable, the surrender is NOT spontaneous, and hence
not voluntary.
This is similar to an old case where a wanted criminal was tracked down by the authorities. They
found hid hideout, and then they surrounded his hideout early one morning. They shouted, Come out
peacefully because there is no way for you to escape. You are surrounded! The criminal looked at all the
directions, and found out that they were all sealed. So, knowing that there is no more escape, he came out.
Now, he is asking for the mitigating circumstance of voluntary surrender. That cannot be. He did not
surrender; he was caught. In other words, that was not really surrender in the sense that the criminal gave
up spontaneously. He had no choice.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
98
The ruling of Morato seems to go against the ruling of the Supreme Court in 1990 decision, which
has the very same fact. A man committed a crime. He was convinced by his superior to surrender, so he
surrendered to the NBI.
The foregoing requisites are not present in the case at bar. The evidence of record shows us that the
accused went to the NBI upon the instruction of his superior, not upon his own accord.
Question: Can I withdraw? Can a person who entered a plea of not guilty later on change his mind and
withdraw that plea and change it to guilty? Is he still entitled to this mitigating circumstance?
Answer: Yes, because what is important is that he has confessed his guilt before the prosecution has laid its
evidence. In order to prevent speculation on the part of the accused: If the evidence is strong, I will surrender.
If the evidence is weak, trial goes on!
In other words, you should not speculate. Even before seeing and knowing the evidence of the
prosecution, you admit your guilt that shows that you have less perversity.
So, you can change your plea of not guilty to guilty. What is important is that you must confess
your guilt prior to the presentation of the evidence for the prosecution.
Question: Can you change your plea of not guilty in the middle of the trial? Can that be done?
Answer: Of course, you can change your mind and enter plea of guilty anytime, even before trial, during
trial, and even before the trial ends. But if you do it much later, it will no longer be considered as a
mitigating circumstance. Thats the difference.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
99
(8) That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus
restricts his means of action, defense, or communications with his fellow beings.
Any physical defect by the accused is automatically mitigating even if it does not have something to
do with the crime. Like, you are deaf and dumb, or blind or you are cripple. The mere fact that the person
is not physically normal, that is considered automatically as a mitigating circumstance in his favor because
that is a diminution of his freedom freedom of action.
(9) Such illness of the offender as would diminish the exercise of the will-power of the offender without
however depriving him of the consciousness of his acts.
This is the mitigating circumstance which should correlate with Article 12 (1) on insanity, because
medically this will be a form of insanity. An illness of the offender which diminishes the exercise of the
will-power of the offender. If you follow the guideline in the case of Dungo, some countries may recognize
this as a type of insanity, by applying what is known as the irresistible impulse test.
He cannot resist the impulse to commit a crime. Now, is that recognized in the Philippines? NO. As
a matter of fact, another case where the Supreme Court thoroughly discussed this type of mental illness is
in the 1991 case of People vs. Rafanan (204 SCRA 65). The discussion in the Rafanan case is related to the test
in People vs. Dugno.
In the case of Rafanan, the Supreme Court adhered to the guidelines it laid down in the earlier case
of People vs. Golez, a 1915 decision. And the Supreme Court in the case of Rafanan says: The required
standards of legal insanity were elaborated in the 1950 case of People vs. Golez. And the Supreme Court
said: A linguistic or dramatical analysis of this standard suggest that Golez established two distinguishable
tests.
Of course, this is another viewpoint. There are supposed to be three tests according to Dungo. That
is correct, but based on another point of view, based on Rafanan, there are actually two tests: the test of
cognition and the test of volition, according to the Supreme Court.
100
In the Dungo case, that is called the irresistible impulse test. And the test of cognition complete
deprivation of intelligence in the Dungo case, was called the Right or Wrong Test.
But in the case of Rafanan, quoting the case of Golez, it is the test of cognition versus the test of
volition. Now, which of the two is considered as covered by insanity, under the mitigating circumstances?
The Supreme Court continued: We have gone over all decided cases before this Court. We will still
have to see one where we acquitted somebody simply because there was no freedom on the will. We have
not done it, where the accused failed to show complete impairment or loss of intelligence, the Court has
recognized it a most as a mitigating circumstance, not an exempting circumstance, in accord with Article 13
(9) of the RPC.
So the test of volition is the recognized test in the mitigating circumstances under Article 13 (9). For
insanity, the test of cognition.
(10) And, finally, any other circumstances of a similar nature and analogous to those above mentioned.
So, any circumstance that is similar to any paragraph 1 to 9. And the Supreme Court applied this in
so many cases. There was this case of an old man. He was around 65, but he could hardly walk, he could
hardly see: The Supreme Court gave to his benefit the circumstance analogous to above 70. Although he
was not really above 70, considering his physical condition, that is analogous.
And there was the case of the creditor who could not collect from the debtor. Each time he would
go to the debtor to collect the account, the debtor would always tell him to come back the next day. One
day, the creditor got so sick and tired of the debtors alibis, that he mauled the latter. Is he liable for physical
injuries? According to the Supreme Court, the feeling of the creditor is analogous to one of passion or
obfuscation. So, in this case, the creditor was given the benefit of mitigating circumstance.
Or in the case of a thief who stole the property of the victim. After one or two days, he was filled
with remorse that he returned the stolen property. Is he liable for attempted theft? No more. That is already
consummated. From the moment he took the property which then came to his possession and control, the
theft was already consummated. Desistance was too late. Returning the property cannot be desistance. You
cannot desist when all the elements have already been completed. But definitely, what he did as a point in
his favor. He is to be given the mitigating circumstance, analogous to voluntary surrender. This analogous
to somebody who commits a crime and voluntarily surrenders himself to the authorities or their agents.
101
Question: So, if there is privilege mitigating circumstance, you are entitled to a penalty that is one degree
lower. But will the aggravating circumstance bring it back to one degree higher?
Answer: No, that cannot be done because a privilege mitigating circumstance cannot be offset by an
aggravating circumstance.
PRIVILEGED
- If the mitigating circumstance is privileged, it is
better because, according to the law, the penalty
should be lowered by one or two degrees. Now, if
penalty is punishable by prision correcional, the
privilege mitigating circumstance will even lower the
penalty not only to the minimum of prision
correcional, but to the penalty next lower in degree,
which under the scheme of penalties is arresto mayor.
- A privilege mitigating circumstance cannot be
cancelled or offset by an aggravating circumstance.
1. Those mentioned in the preceding chapter, when all the requisites necessary to justify or to
exempt from criminal liability in the respective cases are Not attendant.
2. That the offender is Under eighteen year of age or over seventy years. In the case of the minor, he
shall be proceeded against in accordance with the provisions of Art. 80.
3. That the offender had no Intention to commit so grave a wrong as that committed.
4. That Sufficient provocation or threat on the part of the offended party immediately preceded the
act.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
102
5. That the Act was committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same
degrees.
N
6. That of having acted upon an impulse so powerful as Naturally to have produced passion or
obfuscation.
S
7. That the offender had voluntarily Surrendered himself to a person in authority or his agents, or
that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence
for the prosecution;
S
8. That the offender is deaf and dumb, blind or otherwise Suffering some physical defect which
thus restricts his means of action, defense, or communications with his fellow beings.
I
9. Such Illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts.
N
10. And, finally, any other circumstances of a similar Nature and analogous to those above
mentioned.
A
(Recall NUISANSSIN)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
103
Chapter Four
CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY
You will notice that there are only 10 mitigating circumstances under Article 13, there are 21
aggravating circumstance under Article 14. More than double. It simply proves true the statement that
there are more ways to do evil that to do good, and the road to hell is wider that the road to heaven.
FIRST This will not apply to private individuals. The offender here must be a public officer.
SECOND That not every public officer who commits the crime will automatically be affected. The law
says that he must take advantage. If he did not take advantage of his public position, his liability should not
be aggravated.
US vs. TORRIDA
23 Phil. 189
Facts: The accused, shortly after entering upon his duties as councilor of the town of Aparri, ordered that
deaths of all large animals must be reported to him as councilman. As a result of this instruction, the
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
104
owners of several such animals were induced to pay the accused supposed fines on the belief that such
were required by a municipal ordinance. He spent the money paid to and received by him as fines.
Held: The fact that the accused was councilor at the time placed him in a position to commit these crimes.
If he were not a councilor he could have not induced the injured parties to pay there alleged fines. It was on
account of his being councilor that the parties believed that he had the right to collect fines and it was for
this reason that they made the payment. It is true that he had no right to either impose or collect any fine
whatsoever and it is likewise true that a municipal councilor is not an official designated by law to collect
public fines, but these facts do not destroy or disprove the important fact that the accused did by taking
advantage of his public position deceive and defraud the injured parties out of the money they paid him.
ARTICLE 62, PARAGRAPH 1-a, RPC. When in the commission of the crime, advantage was taken by the offender
of his public office; the penalty to be imposed shall be in its maximum regardless of mitigating circumstance
Article 14 (1) talks of an ordinary aggravating circumstance which can be offset also by a mitigating
circumstance. But Article 62 (1) is a special aggravating circumstance which cannot be offset by a mitigating
circumstance because the latter says regardless of any mitigating circumstance.
Question: Does this mean Article 14 is now useless because of that amendment?
Answer: To apply Article 62 (1-a), it must be alleged in the complaint. If it is not alleged in the complaint
but is proved during the trial, apply Article 14 (1). If it was alleged in the complaint and proved during
trial, then you apply Article 62.
2. That the crime be committed in contempt or with insult to the public authorities.
The best example of this is when the mayor is conducting an official inspection, or when he is
outside of his office, talking to the people, or he is inaugurating something, and they you, the accused
commit a crime in his presence meaning, his presence did not prevent you from committing the crime,
and you know he is there. That would be an insult to him! Then the crime is considered aggravated because
of the place and time. But be sure that the public officer or authority is not the victim, that he is just a
spectator. You commit a crime in his presence.
Question: Suppose I will commit a crime within the presence of the PNP Superintendent. His presence did
not prevent me from committing the crime. Is this covered by paragraph 2?
Answer: No, paragraph 2 will not apply in the above case. The aggravating circumstance does not apply to
crimes committed within the presence of constabulary soldiers or PNP men.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
105
Question: Why?
Answer: Because in order to apply, the crime must be committed in contempt of or with insult to the public
authorities.
3. That the act be committed with insult or in disregard of the respect due the offended party on
account of his rank, age, or sex, or that is be committed in the dwelling of the offended party, if the
latter has not given provocation.
An analysis of this paragraph would show that there are four circumstances there. That the crime
be committed in disregard of respect due to the offended party on account of his:
(i)
Rank;
(ii)
Age;
(iii)
Sex; or
(iv)
That the crime be committed in the dwelling of the offended party, if the latter has not
given provocation.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
106
Question: Suppose the four are present in one case, would you say that there are four separate aggravating
circumstances.
Answer: Numbers (i) and (iii) should be treated as one. But if it is also committed in the dwelling of the
offended party, then that should be regarded as separate aggravating circumstance. The basis for this is that
rank, age and sex have a common characteristic they are part of the personal background of the victim.
You are perverse considering the personal circumstances of the offended party, as compared to yours.
But dwelling, on the other hand, is based not on personal qualification, but on place.
Rank
It means that there is a difference in social standing between you (the offender) and the victim.
Social standing could mean many things. The best example is in the military. If a private assaults a captain,
then the crime should be aggravated. In an office, if the rank-and-file employee assaults the manager of the
company, that should be considered as an aggravating circumstance.
Or in a community, if a well-known civic leader, a well-known person in the community whose
stature is high is assaulted by somebody in the community who is not so well-known, or by an istambay,
that is aggravated.
Age
The law does not contemplate that the offender is simply younger than the victim. What the law
refers to is somebody, whose difference in age (with respect to the victim) should be one or such that one
qualifies to be the parent of the other. The age difference should be substantially farther. The wider is the
gap between the offended and the offender, the circumstance, becomes clearer.
For example, the age gap is 20 years. This can now apply. The older the victim, the better. You are
20 years old, and then you assault somebody who is 70 years old, who is old enough to be your
grandfather. Then that becomes aggravating.
Question: Suppose, its the other way around. Suppose a 70-year old man physically assaulted a 20-year
old, will the aggravating circumstance apply?
Answer: Yes, because the law does not distinguish who is older and who should be younger.
Sex
The offender and the offended should belong to the opposite sexes. Now, this is one way. The
offender here is male: the offended party is female. It cannot be the other way around. It is absurd that if a
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
107
woman will maul a man, then the man will accuse a woman of physical injuries with the aggravating
circumstance of disregard for his sex. In other words, there is something wrong there.
However, this will not apply if the difference id INHERENT in the crime, like rape or seduction. By
nature, the offender is male and the offended party is female. So, you do not say that a man is guilty of
raping a woman with the aggravating circumstance of disregard of respect due to the victim because of her
sex. But you are not to rape except a woman!
Also, when a crime is committed with passion or obfuscation, this paragraph is automatically out.
Because you cannot deliberately disregard respect to the victim when you are already acting with passion
or obfuscation, because the two are inconsistent positions.
Dwelling
Question: What was the reason behind this?
Answer: A mans home is supposed to be his castle. One who goes to his house to commit a crime against
him is more perverse than somebody who offends him somewhere else. If the offender waits for you to go
out of your house before he commits a crime, at least he knows to respect the rules of man. It is worse when
somebody goes to your house, then goes to your bedroom and attacks you inside. This guy is more
perverse. And the perversity is shown by the place of the commission of the crime.
Dependencies of one includes the jamb of the house. The staircases part of the dwelling.
Question: Is it necessary for the offender to go inside the house to commit a crime?
Answer: No. In the case of People vs. Ambo, where the accused shot the victim from the street meaning he
shot him through the window and killed the occupant inside the house the Supreme Court applied the
aggravating circumstance of dwelling.
Also, it is NOT necessary that the crime is finally consummated inside the house of the victim. Like
what happened in one where the offender went to the house of the victim to kill him. In this case, is
dwelling aggravating? Yes, because the initial attack started in the residence of the victim. Dwelling in
Spanish is known as the aggravating circumstance of morada.
Question: When is dwelling not aggravating? When does dwelling not apply as an aggravating
circumstance?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
108
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
109
Abuse of Confidence
One of the ways of aggravating a crime is through the ways and means employed in its
commission.
This will not apply again if the abuse of confidence is already a part of the elements of the crime. A
good example is estafa through abuse of confidence. When you misappropriate goods entrusted to you,
that is estafa. That is not aggravating because that type of estafa is coupled with abuse of confidence. That
is already considered a part of the crime.
Or qualified theft by an employee who committed it with abuse of confidence. No more. The abuse
of confidence there is already an integral part of the crime, so it is no longer considered aggravating.
This was applied in the case where a yaya killed the child entrusted to her care and custody. So,
the killing of the child was considered as aggravated by abuse of confidence on the part of the offender.
5. That the crime be committed in the palace of the Chief Executive or in his presence, or where
public authorities are engaged in the discharge of their duties, or in a place dedicated to religious
worship.
What makes the crime aggravated is the place where it was committed. There are actually four
separate circumstances here:
(i)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
110
Malacaang Palace. Now, the Chief Executive need not be there. What is important
is the place.
(ii)
(iii)
(iv)
Question: How do you compare (iii) with paragraph 2 that the crime be committed in contempt of or
with insult to the public authorities?
Answer: The distinction is: If the public authority is in the discharge of his duties inside his office and you
commit a crime in his presence, you fall under paragraph 5. If he is engaged in the discharge of his duties
outside his office and you committed a crime in his presence, you are covered by paragraph 2. That is the
difference.
Moreover, in paragraph 2, a public authority, like a mayor, should not be the victim of the crime. It
was simply committed in his presence. In paragraph 5, he may or may not be the victim of the crime. If you
committed a crime in his presence inside his office, you are covered. If you assault the mayor inside his
office, while he is engaged in the discharge of his duties, you are covered by paragraph 5.
6. That the crime be committed in the night time, or in an uninhabited place, or by a band,
whenever such circumstances may facilitate the commission of the offense.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
111
Whenever more than three armed malefactors shall have acted together in the commission of an
offense, it shall be deemed to have been committed by a band.
There are three circumstances here:
(i)
(ii)
(iii)
Question: What happens if the felony is committed at night time, in an uninhabited place and committed
by a band? So, all the three present, how many aggravating circumstance are there?
Answer: There seems to be a conflict here:
The authors of many books cite the Supreme Court of Spain based on the identical provisions of
the Spanish Penal Code. In one decision, the Spanish Supreme Court said that the three should be
treated only as one.
But in another decision, the same Supreme Court said that there should be three because they do
not have any common denominator. Night time is aggravating because of the time, an uninhabited
place because of the place, band because of the ways and means employed. So, one who commits a
crime when all three are present is more perverse than one who committed it only with one of
them present.
Nocturnidad
Question: What do you mean by nighttime?
Answer: Well, we have in the Civil Code, for instance, sunset to sunrise. So, if the crime is committed
during daytime, it will not be aggravating. In the first place, does daytime facilitates the commission of the
crime? On the contrary, in the dark, the possibility of detection, the possibility of being recognized is low.
However, not every crime committed at nighttime becomes aggravating. There are two tests to
determine whether or not the crime is aggravating - the objective test and the subjective test. In order that
nighttime may be considered as aggravating, at least one test should apply.
112
PROBLEM: Suppose a crime is committed by the accused against you inside a movie house? You go to
movie house during daytime when you have just entered, chances are, and you cannot see anything
because your eyes have not yet adjusted to the darkness. But after a few minutes, after you have adjusted to
the dark, you can now see. So, at that very moment, the accused assaulted you. Obviously, the darkness of
the movie house has facilitated the commission of the crime. Question: Is that aggravating? Answer: No.
Even if it will pass the test, still it is not nighttime. Nighttime speaks of sunset to sunrise. If you enter the
movie house at 12:00 noon, it cannot be nighttime, no matter how you look at it. That when you go outside,
it is daytime, and when you enter again, it is nighttime again.
Despoblado
Uninhabited place is also known as the aggravating circumstance of SOLITUDE.
Question: There was a case in which the crime was committed in the middle of the forest. Because the
offender found it best to commit the crime in a place where no one could help. But accidentally, there were
hunters who were around at that time. Was the crime aggravated by despoblado?
Answer: Yes. It is not sufficient that at that very moment, there were many people around. That is not the
test. The test is by its very nature. Are there people there? Meaning, by accident, it turns out that there were
people.
In the same manner that even if nobody helps you, if the place is NOT uninhabited place, it will not
also be aggravating.
Question: A person was attacked at night in the middle of the subdivision. He was shouting for help, nut
nobody came out to help him. Does the aggravating circumstance of solitude apply?
Answer: No, because he was attacked in the middle of the subdivision.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
113
Question: The victim was killed in the middle of Manila Bay. He was there fishing. So, the offender
followed him in a motorboat and killed him. What are the aggravating circumstances present?
Answer: There is one uninhabited place. Nobody lives in the middle of Manila Bay.
Quadrilla
The law gives us the definition of a band: wherever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have been committed by a band.
Take note that the law says MORE THAN THREE, so there are at least four.
Question: Suppose 100 people attacked you. Three of them are armed, the 97 are unarmed. Is the crime
aggravated?
Answer: NO, because the law says that more than three armed men. Hence, more than three should have
been armed.
Question: Suppose 100 people attacked you. Three of them are armed, the 97 are unarmed. Is band an
aggravating applicable?
Answer: Still the answer is NO, because the law says more than three armed men.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
114
Take note that on occasion like these, people should help one another. But in your case, you took
advantage of the confusion to commit the crime. The best example is during fire or conflagration. People go
out there not to help but to steal. Looters. That is precisely what is contemplated in this aggravating
circumstance. As a matter of fact, based on the amendment of Article 310 of the RPC (qualified theft by a
special law), when the crime of theft is committed during fire, the crime is no longer simple theft but is
considered as qualified theft, raising it to the category of a higher offense.
However, if it is not properly alleged in the information, the crime is simple theft, aggravated by
paragraph 7. But if it is properly alleged, paragraph 7 is converted from an ordinary aggravating to a
qualifying circumstance.
A good example is the Mt. Mayon eruption. While the people are fleeing for their lives, you are
committing a crime during the height of a volcanic eruption or during the height of a typhoon.
There was a case before decided by the former CFI of Davao City where a motor launch runs out
somewhere between Davao and Davao del Sur. Some of the passengers decided to rob their fellow
passengers and escaped. They left the motor launch after robbing their co-passengers and killing some of
the passengers. They were convicted here in Davao and the judge here said that the crime was aggravating
by paragraph 7 because it was committed on the occasion of misfortune. What is misfortune? That the
motor launch was left just floating out there in the sea?
When the case reached the Supreme Court, the court rejected the application of the aggravating
circumstance because the misfortune contemplated by the law is not that which will affect only a small
number of people in the motor launch. It should be big in magnitude. When we say shipwreck, earthquake,
it involves a lot of people in a water area rather than the people who were stuck in the motor launch.
8. That the crime be committed with the aid of armed men or persons who insure or afford impunity.
Question: How do you distinguish this from a crime committed bay a band?
Answer: In here, there are also some armed men. In band, there should be four or more armed men.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
115
Moreover, to constitute a band, the four armed men should act together in the commission of the
felony. Meaning, their participation was direct and they should have acted together. But here, it is not
necessary that the armed men acted directly in the commission of the felony. It is enough that the crime be
committed with the aid of armed men. Meaning that they acted indirectly is sufficient.
Like for example, one commits the crime and then he relies on the armed men behind him to help
if necessary. So, meaning, you are emboldened to commit a crime because you have a back-up. But they
did not act directly. They are accomplices. In this case, the liability of the principal is aggravated by
paragraph 8.
Question: What happens if the crime is committed by a band when 4 or 5 persons acted together? What
happens to paragraph 8?
Answer: That is already absorbed by a band.
10. That the offender has been previously punished by an offense to which the law attaches an
equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
116
Question: What are the four types of criminal repetition in the Penal Code? Meaning, the offender is not
committing the crime for the first time.
Answer: In the RPC, there are four types of criminal repetition:
(i)
(ii)
(iii)
(iv)
recidivism
habituality or (reiteration)
habitual delinquency (multi-recidivism)
quasi-recidivism
Recidivism and habituality are ordinary aggravating circumstances which are found in Article 14.
The third one, habitual delinquency, is what called extraordinary aggravating circumstances. And the last one,
quasi-recidivism, is a special aggravating circumstance.
Reindicia
Question: Who is a recidivist?
Answer: A recidivist is a person, who, while on trial for one offense, has been previously convicted by final
judgment of another crime embraced within the same title if the Penal Code. So obviously, he is at least a
second offender, and he must be found guilty for the second offense.
He has a previous criminal record; he has a previous conviction for another felony. So, the previous
conviction is not of a special law, but for the same felony. And what is important is that the felony which he
previously committed, for which he was convicted, and the present felony for which he is now found
guilty, are embraced within the same title of the Revised Penal Code.
So, if the two felonies are not embraced in the same title of the Code, there is no recidivism. The
best example is, you were convicted before for physical injuries, and you are found guilty of homicide.
Physical injuries and homicide are both Crimes against Persons. Or you were convicted before of the crime
of theft, and you are found guilty of robbery or estafa which fall under Crimes against Property.
Question: Suppose a person was convicted before for the crime of homicide, and the case is not now on
appeal with the Court of Appeals. And now, he is found guilty of the crime of physical injuries, a Crime
against Person. Can his liability of physical injuries be aggravated by recidivism?
Answer: Yes. The law does not require service of sentence. The law just states x x x has been previously
convicted by final judgment. Meaning, even if he was pardoned, the pardon may erase the penalty, but it will
not erase the fact of conviction. The important thing is the conviction, not the service of sentence.
Reiteracion
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
117
Take note that in paragraph 10, habituality need not embrace similarity of the previous offense and
present offense. Should not be, because if they are embraced in the same title, then it becomes recidivism.
For example, a person commits or was convicted before and punished for a Crime against Property
for which he was sentenced to the penalty of reclusion temporal. Now, he is found guilty of a Crime against
Persons. So, it is not embraced in the same title of the Penal Code for which he is sentenced by the trial
court prision mayor. Reiteracion applies because he has been previously punished for another offense for
which the law attaches a higher penalty.
Question: Suppose the penalty for the first felony is a prision mayor, and the penalty for the new felony is
also a prision mayor?
Answer: Then reiteracion applies because the law says he has been punished for a crime to which the law
attaches an equal penalty, either higher or same.
PROBLEM: Suppose a man, several years ago, was found guilty of slight physical injuries light felony
and he was sentenced to one day of arresto menor. And then after a year, he was found guilty of slight oral
defamation. He was sentenced a penalty of one day imprisonment of arresto menor. And now, he is found
guilty of rape, and he is punished with the penalty of reclusion perpetua. If you look at his record, no two
crimes are embraced in the same title of the Penal Code. The first one is slight physical injuries (Crimes
against Persons); slander (Crimes against Honor); and rape (Crimes against Chastity). So, he is not a
recidivist.
Question: The first offense is a light felony; the second offense is also a light felony. As a matter of fact, he
was only sentenced to one day of arresto mayor. This time the felony (rape) is punishable with reclusion
perpetua. Is there reiteracion?
Answer: Yes, because he has been previously punished for two offenses to which the law attaches a lesser
penalty.
PROBLEM: Suppose a person was found guilty of the crime of homicide and was sentenced to a penalty of
reclusion temporal, but was pardoned by the President. So, he did not serve any single day in jail. Later on,
he was found guilty of robbery, another felony? And the penalty for homicide before was higher.
Question: Is there reiteracion?
Answer: NO. What is important in reiteracion is he was previously punished, not convicted.
In recidivism, all that the law requires is a PREVIOUS FINAL JUDGMENT of conviction.
In reiteracion, the law requires that he has PREVIOUSLY BEEN PUNISHED, not merely convicted.
118
What makes the crime aggravating is the motivating power. The best example would be the hired
assassin. You hire somebody to kill for you. That guy has no grudge against the victim; he does not even
know the victim. But because he is willing to commit a felony that shows perversity on the part of the
offender. Hired guns, hired killers, guns for hire, mercenaries are best examples. The crime was committed
in consideration of price, reward or promise.
What is contemplated by the law here is that there was a previous proposal and a previous
conspiracy. Because, how can you hire somebody if he will not agree if there is no agreement? So, they did
not stop the conspiracy. In other words, the crime was fully executed by one. We call the one hired him as
principal by inducement, and one that commits the crime is called principal by direct participation under Article
17 of the RPC.
Question: If I hire someone to kill my enemy, whose liability under paragraph 11 will be aggravated? The
liability of the killer only, or should price, reward or promise be aggravating for both of us?
Answer: It is not only the one who receives the price, but it also includes the giver.
Now, in the book of Reyes, he cited some old decisions which appear to be conflicting. The case of
People vs. Parro (36 Phil. 923) and US vs. Maharaja (38 Phil. 1), where the Supreme Court said that the
aggravating circumstance applies both to the one giving the price or reward AND the person who receives
the price or reward. But in another case also cited in his book, the case of People vs. Talledo (85 Phil. 539), the
implication was that it is only aggravating for the person who receives the reward or price. It will not affect
the giver because the law says xxx that the crime be committed in consideration xxx. And the implication is that
committed refers to the one committing it. Meaning, the principal by direct participation, not the
mastermind.
However, the case of Talledo, has been misinterpreted because the Supreme Court has already
corrected that in 1971. Whatever statements that appears in the book of Reyes about the doubt, there is no
more doubt as that has been settled. Paragraph 11 is already settled as applied to both the participants and
the inducer.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
119
However, the rule does not seem to apply to recidivism because, based on some decisions of the
Supreme Court, recidivism should be alleged in the information. To appreciate recidivism, it is necessary to
allege it in the information. Absence of this allegation bars the trial court from allowing of evidence
regarding the matter. So, it should be properly alleged.
12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a
vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice
involving great waste and ruin.
Now, what qualifies it as aggravating is the manner, ways and means of the crime. Do not confuse
this with paragraph 7. In paragraph 7, the crime was committed on the occasion of a conflagration, or fire,
etc. So, the timing x x x ON THE OCCASION x x x. Here, the crime was committed BY USE OF x x x.
However, this would not apply if the use of fire is included in the definition of the crime. Like arson, since
the means is fire, fire can no longer be aggravating, being already considered as part of the elements of the
crime.
Another example would be that the crime was committed by means of poison. When you kill
somebody by poisoning him under Article 248, the crime is murder. This is one of the qualifying
circumstances of murder. If properly alleged in the information, in which case, the use of poison is no
longer aggravating. It is already part of the elements of the crime.
However, if a person is charged only with homicide, and in the course of the trial, it was
established that he killed the victim by poisoning him. What crime did he commit? It is still homicide
under the Rules of Criminal Procedure because you cannot convict a person for an offense higher than the
one being charged. So, the crime is homicide, aggravated by the fact that he committed it by means of
poison. But if it is alleged in the information, it is called murder, qualified by the use of poison under
Article 248, not under Article 14.
Question: Suppose the husband killed his wife by poisoning her. The use of poison was alleged in the
information. Is the use of poison aggravating under paragraph 12?.
Answer: Yes, because if the husband kills the wife, the crime is not murder, but PARRICIDE. And the
qualifying circumstance in parricide is not poison, but relationship. So, since the qualifying circumstance is
relationship, the use of poison becomes an aggravating circumstance under Article 14 (12). So, thats how
you apply the circumstances in relation to Book II.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
120
In Spanish, it is called premeditacion. Now, this is the exact opposite of the mitigating
circumstances that the crime was committed with passion or obfuscation. In passion or obfuscation, the
offender did not have sufficient time to reflect the commission of the crime, so it was more of emotion than
reason. It is the other way around here. He has all the time to reflect; he has all the time to reconsider, but
still he proceeded. Despite the careful deliberation, thinking still proceeded to commit the crime.
This is one of the hardest aggravating circumstances to prove because it is not enough that you
prove that the accused committed the crime, you must also prove that the accused already planned or was
determined to commit the crime, even before the date it was actually committed. You must have previous
history of the party.
And the last requisite is a matter of computation. There must be sufficient time between the
determination to commit the crime and the day the crime was committed to show that he has the time to
reflect. Now, what is sufficient time is relative. Suppose, he planned to commit the crime one or two days
before it can be, how about 15 minutes? The number of hours is sufficient. The longer the time gap, the
better, the application of this circumstance becomes clearer. The longer the time he has to reflect, the
premeditation becomes more evident.
Evident premeditation WILL NOT APPLY in error in personam.
PROBLEM: A planned to kill X and he has planned to kill X for so long. He planned and he made
preparations to kill X. One day, he started to implement it. He killed X but it turned out to be Y. He did not
kill X because of error in personam. Of course, based on Article 4, he will not be prosecuted for the death of
X because he did not kill X. He will now be prosecuted for the death of Y and it was established that he has
been planning to kill X for so long. Question: Is the killing of Y by evident premeditation? Answer: No,
there is none because he did not premeditate the death of Y. The evidence would show that he
premeditated the death of X. So, Y was not a part of that premeditation.
However, that should not be confused with the ruling that it is not necessary to premeditate for a
specific victim. So, for example, where the accused planned to be amok. He will kill every person he meets.
Is my liability aggravated by evident premeditation? Yes. But I did not ponder. You did not ponder, but
there is no error in personam. Why? Because when I premeditate, I will kill the people I will meet. Whoever
I meet is part of my premeditation. There is no error. That is the phrase to whom that my concern.
Therefore, it is a meditated act.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
121
Now, actually, craft and fraud are identical. There is an employment of tricks. The offender resorted
to tricks to commit the crime. The only difference is the manner the trickery was committed. If the trickery
is more of scheme or action, rather than the use of words intellectual trickery or action, it is more of craft.
Whereas, fraud refers more to the trickery or to the use of words by the offender. Insidious machination by
the offender.
For example, somebody rides a taxi, tells the driver to bring him to this place, and then when they
reach the place, the passenger now announces a hold-up and divests the driver of his income at that time,
or even kills the driver. The robbery there is definitely aggravated by the use of craft. And what is the trick?
The offender who is actually a robber pretended to be a paying passenger. He tricked the driver to bring
him to a designated spot. If the driver knows your intention, he will not get you as a passenger. Why will he
allow himself to be robbed or even killed? Just for that distinction, craft and fraud are almost identical.
There is the use of trick or scheme by the offender.
Where are accused pretended to be constabulary soldiers and by that ploy, gained entry
into the residence of their prey, to rob them thereafter;
They pretended to be needful of medical treatment, and due to this, they were able to
enter the house of the victim and there robbed and killed him;
When they pretended to be customers wanting to buy a bottle of wine;
When they pretended to be the co-passengers of the victim in a public utility vehicle;
They posed as customers to buy cigarettes, or as being thirsty asking to drink a glass of
water, etc.
In all those instances, the crime was aggravated with craft and fraud.
Disguise
When the offender tries to conceal his identity.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
122
Facts: The offender covered his face with a handkerchief in order to prevent his being identified. But
despite that, the victim recognized him.
Held: Disguise is not aggravating because he was not successful. Actually, he was still recognized even if he
disguised.
15. That advantage be taken of superior strength, or means be employed to weaken the defense.
This generally applies to Crime against Persons. Now, in order for the aggravating circumstance of
superior strength to apply, there must be evidence that the offender is of superior strength than the other. It
cannot be presumed. It has to be clearly established. And when we say superior strength, shall it mean to
say you have more assets than that of the other?
Like for example, when the two or more people committed the crime, superiority in number would
definitely give the offender superior strength. Or when one is armed with the weapon and the other is not
armed with a weapon, and then superior strength is really apparent. And not only that. He clearly took
advantage of it because if the crime is the product of anger or emotion, then we cannot say that he
deliberately took advantage. There is no showing that the offender really relied on superior strength.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
123
The other one is a little bit different. Maybe, the parties are of equal strength, no one is superior to
the other. But the accused saw it that the victim will be at the disadvantage. So, if you are now in a
disadvantage, in effect, my strength becomes superior.
It has been applied to cases:
Where the accused threw sand into the eyes of the victim. If your eyes are filled with
sand, you cannot see. You have to close your eyes. So how can you defend yourself?
Where the offender deliberately intoxicated his victim and the victim was already drunk
he could hardly stand. That is the time he is assaulted.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
124
U
S
A
R
P
P
I
E
E
A
T
I
U
D
A
A
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
125
(Recall: TALa)
Requisites for Superior Strength (Three Test)
1.
2.
3.
(Recall: INK)
Requisites of Treachery:
1.
2.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
126
TITLE TWO
PERSONS CRIMINALLY LIABLE FOR FELONIES
In every felony, there are generally two parties involved:
1.
2.
Now, the person who commits the felony must be a natural person. Therefore, only human beings
are contemplated by law. That is obvious because in every felony, there is an act or omission.
Act means a physical action, a physical movement. A corporation has no physical existence. It is
only a person under the law. Also, for a person to be liable for a felony, he must have the;
1.
2.
3.
Freedom;
Intelligence; and
Intent
Principals;
Accomplices; and
Accessories
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
127
There is an analogy about the movies, the principal or main actor is the lead, and the story revolves
around them. Now, what about the accomplices? They are the supporting cast and minor characters. How
about the accessories? These are the extras; they are seen only in a scene or two.
Art. 16. Who are criminally liable. The following are criminally liable for grave and less grave
felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals
2. Accomplices.
Article 16 immediately gives us the principle. For grave and less grave felonies, all of them are
liable. But for light felonies, only the principals and accomplices are liable. So, conclusion: Accessories are
exempt from criminal liability in light felonies.
In effect, Article 16 is an exempting circumstance based on public policy. The reason behind this is
similar to that in Article 7 where the general rule also is: Light felonies are only punishable when they are
consummated.
Question: Why?
Answer: The role of an accessory is very minor. Even in grave or less grave felonies, the penalty given to an
accessory is very light, very much lower than the principal. How much more if the felony is light? If the
felony is light, even the penalty for principal is also light. So, what would be the penalty for the accessory?
Very Negligible. So, there is no more liability. It creates an exempting circumstance under Article 16.
With this, you will notice that there are certain principles to remember about light felonies. Light
felonies defined in Article 9. There are 2 principles which create exempting circumstances: One is found in
Article 7 and the other is in Article 16.
Article 16 says: Only accessories are exempt from criminal liability in light felonies regardless of
whatever crime that is a light felony, whether it is against persons or property.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
128
3. Those who cooperate in the commission of the offense by another act without which it
would not have been accomplished.
While the law divides persons criminally liable into 3 classes, Article 17, further provides or
classifies principals into 3 types:
1.
2.
3.
When the felony is committed by only one person and you are asked what you think his role. Then
without thinking you say that he is a principal by direct participation. He cannot be an accomplice. If he is
an accomplice, who is the principal? There is no accomplice if there is no principal. So, necessarily, if he is
only one, he must be the principal, and necessarily, he must be a principal by direct participation.
Now, there would be no principal by inducement if there is no principal by direct participation.
There could be no principal by indispensable cooperation, without a principal by direct participation. That
is why when you say that there is a crime committed by one person without looking you can say that he is
a principal by direct participation. There could be no other role.
The problem will arise if there are two or more people involved in the commission of the felony
because it is possible that one is the principal, another is an accomplice and the third one is an accessory; or
principal and accessory only without accomplice.
It is also possible that all of them are principals. What type of principal? One of them by direct
participation, another one by inducement and the other one by indispensable cooperation. It could also be
principal by direct participation and inducement without the third or principals hhby direct participation
and indispensable cooperation without the second or it is still possible that all of them are co-principals by
direct participation.
So, it is possible for a felony to be committed by 10 people? Yes, they are classifies as principals by
direct participation. Therefore, that is now our problem.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
129
Answer: 2 or more persons committing a felony are classified as co-principals by direct participation when
two requisites are present.
1.
2.
Example: 3 or more people (A, B, C, D and E) simultaneously enter a bank and armed. A will disarm the
security guard. B will herd all the people in the bank. C and D will start scooping the money from the
tellers booth and vault. Then all of them will simultaneously withdraw from the bank. Then the vehicle
outside was driven by E; they ride the vehicle.
Based on what you have witnessed, do you think there is a conspiracy among these 5 people? Is
there an agreement among them to commit robbery? Or can we say that, No, that could have been merely
a coincidence, they entered the bank together.
And the by instinct A, disarmed the guard and B also, by instinct, herded everybody into a corner.
C and D without knowing each other got all the money and then without any agreement, they all withdrew
form the bank. And accidentally, there was somebody waiting, and then they took a ride. Then he said to
each other, Who are you? this is impossible scenario.
The human mind will be taxed to its limits. That is the essence of criminal resolution because direct
proof of conspiracy is very hard and the best proof of it is by action.
Question: What is the importance of this element of conspiracy?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
130
Answer: The importance is, if there is conspiracy, the act of one is the act of all. Then all of them are equally
liable for the crime. All of them will get the sane penalty for robbery. So, they have collective criminal
liability.
Therefore in that particular sense, A and B cannot say, we are not guilty of robbery because in
robbery, you commit the crime by taking the property. We did not take anything. A will say, What I did
was to disarm the security guard. B says, Me too, all I did was to herd off the people. It was C and D who
took the money. Then they shall be liable for robbery because I did not take anything. Then E will say,
Neither will I be liable, because I did not even enter the bank. In conspiracy, the act of one is the act of all.
In one case, 4 or 5 people conspired to kill the victim. So, they cornered him inside the restaurant.
They started to assault the victim and one of them held the victim. The 4 th person stabbed him. According
to the third member, I am not liable; it was the 4 th guy who stabbed the victim. My job was only to hold
the victims hands. Then the other one says, Neither will I be liable, I was just at the door. My role is to
prevent the victim form running away. No, it is as if all of you stabbed him. The act of one is the act of all.
That is the importance of the conspiracy.
I noticed last 2002, there was a problem in the BAR and that principle was applied. Actually, I
already mention this problem earlier. This is the case of MAMBOLO. At about around 9:30 P.M., while Dino
and Raffy were walking along Padre Faura St. in Manila, Johnny hit them with a rock, injuring Dino, and
then Bobby stabbed Dino. But suddenly Jerry, Vic, Vaness and Ken surrounded Dino, and then Jerry
stabbed Dino. Vic, Vaness and Ken kept on hitting Dino and Raffy with rocks. As a result, dino died.
Johnny, Jerry, Vic, Vaness and Ken were charged with Homicide.
Question: Is there conspiracy in this case? It is clear that they acted in unison extending towards the
culmination of the same criminal resolution. So, what is the conclusion?
Answer: There is conspiracy because their action betrays their agreement.
PROBLEM: Ben, a widower, driven by bestial desire, poked a gun at his daughter, forcibly undressed her
and tied her legs to bed. He also burned her face with a lighted cigarette and like a madman, laughed while
he was raping her.
Question: What aggravating circumstances are present?
Answer: 1.) Ignominy and;
2.) Alternative circumstances of Relationship.
Question: It is possible that 2 or more persons commit a crime and appear to be acting in a conspiracy but
in reality; they are acting independently of each other? Meaning, just a coincidence that the incident
happened. Is that possible?
Answer: Yes, because when we say that when 2 or more persons act together towards the commission of
the crime, there is a presumption of conspiracy because it is very hard to say that there is none.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
131
PROBLEM: A has an enemy, X. B, another person is also the enemy of X. One day, a decided to maul X. B,
on the other hand has already looked for X to kill him. And both of them acting independently started
looking for X. A saw X, immediately approached him and started to hit him. At the precise moment, B
arrived. During the fray, B stabbed X. X died.
Question: Is there conspiracy?
Answer: Based on the facts, there is no conspiracy.
Since As intention is to inflict physical injuries and he merely inflicted fist blows upon the victim
is only liable as a principal by direct participation for physical injuries against the victim. On the other
hand, the one who stabbed the victim is liable as principal by direct participation for the crime of homicide.
So, in effect, there were 2 separate crimes, 2 criminals acting independently. That is called individual
liability, as distinguished from collective liability.
Question: Now, what happen if 2 or more persons conspire to commit a crime, but while committing the
crime, one of them went beyond the agreement and committed another crime not contemplated in the
conspiracy? Are his companions also liable for the crime? Are all co-conspirators liable for the crime
committed by their companion who was not within the scene of their conspiracy?
Example: Robbery committed by a band paragraph 2 under Article 296 provides any member of a band
who is present at the commission of a robbery by the band shall be punished as a principal of any of the
assaults committed by the band unless it is shown that he attempted to prevent the same. So, at least 4
persons conspired to commit the robbery. So, they entered the house of A, one of them point a gun and
they divested A of his belongings and then, one of them attacked the victim and killed him. This is robbery
with homicide.
Question: Who is liable for the robbery with homicide? Others would say that, only one who attacked and
killed A is liable.
Answer: All of them is liable because according to Article 296 in Robbery by a band, all of them are liable
fir any assault committed by their companions unless you can show that you tried to prevent it. So if you do
not try to prevent it, you are liable. In conspiracy, the act of one is the act of all.
But Article 296 applies to Robbery with Homicide and committed by a band. So, if there are only
three persons, this will not apply.
Question: Suppose there are only 2 or 3 robbers and they conspired to commit robbery only and then one
of them killed the victim. Will all of them be liable for the assault or only him?
Answer: this time we can apply another principle: That the conspirators are only liable for the crime
contemplated in the conspiracy if there is no direct provision on that.
Example X and Y conspired to kill A then, X killed B. now, who is liable for the death of B? The
conspirators conspired to kill A, they never conspired to kill B. X is the only one liable.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
132
Question: In another case, the offenders conspired to injure A. So, all of them mauled A. but one of the
conspirators pulled out the knife and killed A. who is liable for the homicide?
Answer: All of them are liable because in a conspiracy the act of one is the act of all.
Two principles here that you have to balance:
1.) In a conspiracy the act of one is the act of all.
2.) The co-conspirators are not liable for any act of another conspirator not contemplated in the
conspiracy.
Question: Now, when do you apply one and when do you apply the other? How come that in that case
where 5 people conspired to injure the victim, the SC said all of them are implicated. But in another case,
the conspirators conspired to kill A but one of them killed B, the SC said only the of B is liable.
Answer: When you try to examine, there is really a difference. In the first example, the contemplated victim
is A, and the one who was killed was A. so, the same victim. Moreover, in crimes against persons, when the
victim is killed, the physical injuries are absorbed. The conspirators are not separately liable. The physical
injuries are absorbed I the killing, in result there is only one crime.
But in the second example, there were really 2 crimes, because there were 2 victims. The killing of
A is a separate crime from the killing of B so you do not say that the killing of B is absorbed in the killing of
A. unlike in the first instance, the victim is A and the person killed is A. and the physical injuries are
absorbed in the killing of A.
But in the other case, the intended victim is killed, another person is also killed. So, there are 2
crimes. So you cannot say that the death of B is absorbed in the killing of A because there is an entirely
different victim. So, based on that, in the first case, all of them are liable for the death of A. in a conspiracy,
the act of one is the act of all. But in the second case, all of them are liable for the death of A but only one
them is liable for the death of B. that is entirely separate crime to be charged separately. That seems to be
distinct.
Second Requisite: That the offenders, co-principals carried out the resolution by performing acts
which tend to accomplish the objective
In effect, they should be present in the commission. So, we plan and we implement the plan. That is
the second element.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
133
did not show up. So, only 3 brothers were there at the meeting place, and they agreed to proceed with the
crime. So, they went with the plan, minus the other brother.
Held: SC said that one who did not show up is not liable. The second element is missing. He did not appear
at the scene of the crime.
PRINCIPAL BY INDUCEMENT
Those who directly force and induce others to commit a crime.
Force or Induce
How do you force? By the use of irresistible force or by forcing under uncontrollable fear. However,
if you do that, the principal by direct participation has a very good defense Article 12. That there was no
voluntariness. That there was no freedom. That leaves you alone liable.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
134
But the normal way of falling under this classification is when you are induced. When you
persuade the other party to commit the crime and he agreed to do it, what is now the effect? There is
conspiracy again. So a principal by direct participator is also in conspiracy with principal by inducement.
So what binds them together will be conspiracy.
Question: How do you persuade? How do you induce another or convince him to commit the crime?
Answer: There are many ways; by words of inducement, by promise of price or reward.
To be classified as principal by inducement 2 requisites must be present:
1.) That the principal by inducement made the inducement with the intention of procuring the
commission of the crime; and
2.) That the inducement was the determining cause of the commission of the crime without which the
crime could not have been committed.
First: That the inducement was made with the intention of procuring meaning the inducer is serious.
He was really interested in committing the crime. He was not joking because the concept of
inducement has the same definition as proposal under Article 8.
Second: Without such inducement, the crime would not have been committed. The inducement was the only
reason for the commission of the crime. Without it the principal by direct participation would not have
been committed the crime.
Example: Guns-for-Hire. You are told to kill the victim. He said; Give me a picture in order to identify
him. He gave you because are being paid. Without the payment, he will no ask you. Nothing personal,
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
135
everything is business and that is how assassins worked. The assassin would say; I will kill people for
money but you, you are my friend. I kill you for nothing. Normally, I do not kill people if it not for money.
But since you are my friend, I will kill you for nothing. Just to show that it is for free.
Note: The words of inducement must be offered PRIOR to the commission of the crime. How can you say
that the inducement was the determining cause when it is made after the crime? For example, somebody
approaches you and says; I would like to tell you something, I killed so and so. You killed? Well,
congratulations! That is a good thing. I am not a principal by inducement. The crime has already been
committed. I only praised you but you do not say that my word is the determining factor.
And another principle is; the principal by direct participation had no reason to commit crime on
his own. That is why your inducement is the only determining factor.
People vs. Omine
61 Phil. 611
Facts: There was a quarrel between A and B. A is the principal by direct participation. B is the victim. A was
approaching B one night. A was holding a knife and he was approaching B. at that moment, X arrived. X
shouted to A; yes kill him, stab him!, A killed B with the knife. X who uttered the shouts before the
stabbing was impleaded as a principal by inducement. But the SC acquitted him.
Held: Do not tell me that without the shouting of X, A would not have stabbed B. A was really going to stab
B. there as a personal reason on the part of A. so, do not say that if it were not for the shouting of X, A
would not stab B. it is just an additional. In other words, just firewood to keep the fire burning but actual,
although without the shout there was already a reason for the principal to do that.
Question: Principal by inducement is closely related to a person making a proposal to commit a felony
under Article 8. What are the distinctions?
Answer: Principal by inducement, there must be a principal by direct participation. Even if keep on
inducing you, but you will not commit a crime, there is still no principal by inducement. But in certain
crimes, like treason, rebellion, coup detat, the mere proposal to commit a felony is punishable. It is not
necessary that the other party will actually commit it. And you do not call a person making the proposal a
principal by inducement. He is classifies as principal by direct participation. This is he distinction between
the two.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
136
Example: I will agree that you kill somebody. I hold him so he will not escape. Whats that? What is my
cooperation? In the execution of the crime of Homicide, or by another act? Just like in rape. A wants to rape
the girl. So, he sought the help of B and C to subdue the girl, to prevent the girl from disturbing him while
he rapes her. B & C complied.
They held the girl, the victim was subdued. And A raped her. There is no question; B & C are also liable.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
137
Question: How many are the principals? Principal by direct participation in the crime of rape or principal
by indispensable cooperation? By direct participation or by indispensable cooperation?
How do you commit rape? No question about conspiracy. All of them are conspirators. What type
of principal are they? Are B and C principals by direct participation or indispensable cooperation?
Who believe that they are principals by direct participation also, that they took direct participation
in the commission of rape? How is it that in the crime of homicide, the one who held the victim and
prevented him from running was considered as principal by direct participation when he was not the one
stabbed the victim?
There are cases where the SC said: Well, they prevented the girl from struggling or resisting, so
they are also principals by direct participation. That is taking part directly in the crime of rape. So all of
them are principals by direct participation.
But there are also some cases where the Sc said that they are also principals by indispensable
cooperation. Because the issue here is this: How do you commit rape? By having sexual intercourse. They
did not have sexual intercourse with the girl. It was only A, but their help was indispensable to the
commission of the crime of rape by virtue of the conspiracy. So there are 2 sets.
But, this question is moot and academic because whether you are a principal by direct participation
or by indispensable cooperation, they are similar. The act of one is the act of all. It does not make one any
better than the other. You will say: Im not a principal by direct participation; Im a principal by
indispensable cooperation. Okay, but the penalty is still the same. The act of one is the act of all because of
conspiracy. As a matter of fact if you look at the information filed by the fiscal- it will say that they are coprincipals. Then, if you look at the decisions, the court will say that they are co-principals.
Art. 18. Accomplices. Accomplices are those persons who, not being included in Art. 17, cooperate in
the execution of the offense by previous or simultaneous acts.
So if you are a principal, you cannot be an accomplice at the same time. So if you are falling under
Article 17, Article 18 will not apply to you.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
138
no
Question: How to cooperate? How can I cooperate without being in conspiracy? How will that happen?
How can you cooperate without an agreement?
Answer: The concept of cooperation by an accomplice is that a person is an accomplice who, not being in
conspiracy with the principal, but knowing about the criminal intent of the offender, concurs with it and
cooperated either in a previous or simultaneous act. Not being in conspiracy but knowing of the criminal
intent concurs. Meaning, I agree. So I will just cooperate.
Example: You are a taxicab driver. Then one night 2 or 3 passengers hailed you to take a ride. While
driving, you overheard their conversation. You listened. Base on their conversation, they were going to
commit robbery. You learned about it. When they reached that place, they asked you to wait. "Wait for 30
minutes, okay" We are just going to that house and rob somebody in it." Okay, you agree. So you knew that
they are going to rob somebody then after 30 minutes they returned, then drove them off. So in effect, you
are the driver of the getaway vehicle,
Did they ask you to join them? No. There was no agreement. But knowing about their intent to rob,
you stayed all along, you cooperated. You will get a bigger payment. What is the liability of the driver?
Accomplice.
But suppose the passenger will say, "Pare, we are going to rob a house, you will be our driver, wait
for us outside. Will you agree or not? "Agree". What's that? Principal? There is already a conspiracy. So, in
case of doubt, the doubt is resolved in favor of less cooperation. That is the role of an accomplice. How do
you cooperate? By previous or simultaneous act. That is simultaneous. Simultaneous act of robbery.
Somebody approaches me: Sir, do you have a gun? Yes, I have, why may I borrow it Why? Im
going to kill somebody. So I lent him the weapon and killed the person. What is my role? I am an
accomplice. Knowing his criminal intent to kill, he borrowed my gun and I cooperatedby a previous or
simultaneous act.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
139
ACCOMPLICE
The cooperation of an accomplice may be
necessary but no indispensable. Meaning, the
crime may still be committed.
Example: Without the cooperation of the signature-verifier, I would not succeed. But: "may I borrow your
gun?" Sure.
Question: Is my lending the gun indispensable or necessary - do you mean to tell me without my gun you
cannot kill him? You can kill him with another gun or with a knife. You can kill him with a bolo.
Answer: So, my lending the gun is necessary, but not indispensable. That's the distinction given by some.
This distinction is correct.
Take note, that you are also liable nor the same crime committed by the principal.
Although the penalty is a little bit lower. That's why we have discussed collective liability. You are a coprincipal in a conspiracy. The act of one is the act of all. Collective,
Let us change the Facts: A and B do not know each other. There is no conspiracy. A wanted to
injure X. A will pull X. B, on the other hand wanted to kill X. So they were acting separately. A saw X, he
started to throw punches at X. Then afterwards, B suddenly entered and stabbed X. X died. Take note that
A had not intent to kill X. He only wanted to injure him. He is principal by direct participation for the crime
of physical injury serious or less serious.
Then B said: "Well, in that case, I am the accomplice of A. Because when A attacked X, 1 learned of
the criminal intent of A, and therefore when 1 came in and entered the fray and stabbed X, I concurred with
the criminal intent of A and therefore I am an accomplice." So, A is the principal for the crime of slight
physical injury B, who stabbed X, is liable as an accomplice. Now, who will be liable for the death of X?
Zero? The one who stabbed the victim is only the accomplice. Something is wrong there. That kind of
reasoning is wrong.
How can you concur with A when A had no intention to kill? The intent to kill came from B. You
cannot say that A concurred with B because he was the first to commit the crime, B only entered the scene.
So there are 2 kinds. A is liable for physical injury as a principal by direct participation. B is liable for
homicide.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
140
We will again reverse the facts. The same: A wanted to harm X. B wanted to kill X, this time, the
first one who came was B. B saw X. He approached and started stabbing X. A arrived, approached X, Ill
join you". He entered the scene and started to attack X with his first, even preventing X from running. So, X
died.
B is liable for homicide as a principal by direct participation. So A? Physical injuries only, I only
punched him. No, when you saw B stabbing X you joined the fray and starting also hitting X, you
concurred without any conspiracy. You concurred with the criminal intent of B to kill, and you cooperated
with him with the simultaneous act of assaulting the victim. So there is only one crime. You are the
principal. A is the accomplice. That is what you call quasi-collective. That is the illustration:
Liability:
Collective
Quasi-collective
Individual
=
=
=
Conspiracy
Accomplice
2 Crimes, each to his own
Art. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime,
and without having participated therein, either as principals or accomplices, take part subsequent to its
commission in any of the following manners:
1. By profiting themselves or assisting the offender to profit by the effects of the crime.
2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order
to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the
accessory acts with abuse of his public functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.
Accessories are the last set of those persons criminally liable. To be liable as an accessory, the felony
committed by the principal should be a LESS GRAVE or GRAVE FELONY. Even if you perform any of these
acts under the definition of Art. 19, if it is a light felony you are not liable because of Art. 16. Only
principals and accomplices are liable for a light felony. The premise is that the felony is not a light felony.
You have to correlate this with Art. 16.
The distinction between principals or accomplices, and accessories is that the principal or the
accomplice participates prior to or at the latest simultaneously with the commission of the crime; whereas
the accessory comes only after the crime has been committed. That is why he is known as the accessory
after the fact,
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
141
PROBLEM: A saw X and started to stab the latter. When B arrived, he saw A stabbing X, he joined the fray
holding X in order to prevent him from going away. After X died, A and B dug up a grave in order to
prevent the body of the victim from being discovered.
Question: Can we consider either A or B as accessories for having concealed the body of the victim under
paragraph of Article 19?
Answer: No, because to be an accessory you should not have participated either as a principal or
accomplice. Now if A is the one who killed X, then he is already a principal. B there is already an
accomplice. Hence, they' are not accessories. That is the meaning of the phrase "without having
participated therein."
But after A and B ask C to bury the cadaver, then C can be considered an accessory because he
neither participated as principal nor accomplice.
However, the accessory must have knowledge of the commission of the offense. Otherwise, if he
did not know of the commission of the crime, he is not liable.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
142
Question: Can I be liable as-an accessory for the crime of robbery or theft, and be liable for the violation of
the anti-fencing law - because there are 2 separate crimes but relying on the same facts and circumstances,
so double jeopardy may be invoked. What is act of fencing?
Answer: With intent to gain for yourself or for another. So, profiting or assisting the thief or robber to
profit, receive, possess, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner
deal in any article, item, object, or anything of value which he knows, or should be known to him, to have
been derived from the proceeds of the crime of robbery or theft. There is no loophole. You can be arrested.
But if you are an accessory, if you do not know that the thing is stolen, you are not liable. The law requires
that you must know that the property is stolen. But in Anti-Fencing, not only what you know is included,
but also, what should be known to you.
For example, you buy property form someone who is not the usual dealer of that item. If you that
expensive property from a department store and it turned out to be stolen - and you claimed that you did
not know that it is stolen... Several years ago, there was a group of minors who "specialized" in removing
tires. They would sell the tires to a dealer of stolen tires. Who are the persons to be charged with fencing?
The dealer. But the dealer will say: "t did not know. I thought those kids' were dealers of Firestone tires." Or
somebody is offering a watch valued at PI0,000, but which is sold to you at P3,000. That is already a sign
that it is probably stolen and it should have been known to you.
Another important section here is that the penalty is higher than that imposed upon an accessory.
SECTION 5, PD 1612. Mere possession of any goods, Article, item, or anything of value which km
been the subject of robbery or thievery shall be prima facie evidence of fencing.
Of course, this presumption could be rebutted - that you did not know or that it could not have
known. The presumption here is that you are liable for fencing in that you have in your possession the
stolen property.
Question: Is this provision constitutional considering that the Constitution presumes innocence of the
accused?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
143
Does the Saw have the right to create that presumption? Section 5 of PD 1612 provides that "mere
possession of any goods, article, item, object, or anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing."
The presumption is reasonable for no other natural and logical inference can arise from an established fact of possession of the crime of robbery or theft. This presumption does not offend the
presumption of innocence of the accused enshrined in our fundamental law.
In cases of statutory crimes, no constitutional provisions is violated by statute that proof by the
state of some material state of fact or facts shall constitute prima facie evidence of guilt and that the burden
is shifted to the accused for the purpose of showing that such act or acts are innocent and are committed
without lawful intention.
The second way of committing, as an accessory is by concealing or destroying the body of the
crime. In Latin, corpus delicti. In the crime of homicide, how do you conceal it? By burying the corpse.
Why? The reason is simple: murder or homicide, to be established to have been committed by-the
accused, the prosecution must prove that the victim died. How can you prove the death of the victim if you
hide the body? The evidence would, probably be that you have been seen with the victim the last time. But
it docs not prove that the victim died.
With that, what happens? The victim is declared a missing person because there is no evidence
that he is dead. So, the most that can be done is to declare him civilly dead, but not criminally dead. The
prosecution cannot file a murder or homicide case- if the proof of death is absent. You can conceal the body
by burying it. Or you can destroy the corpse.
Or you can conceal or destroy the effects of the crime... like the murder weapons throw it away.
You are not he killer but you assisted. Or you hide a stolen car. Here, I can be held liable as an accessory
and under the anti-fencing law. So, one who conceals the effects of the crime under paragraph 2 are also
liable under the Anti-Fencing law, because that is also one way of concealing stolen property under PD
1612.
The third is by harboring, concealing, or assisting in the escape of the principal of the crime,
provided that the accessory acts with abuse of public functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime, The one concealed is not the body^-the effects of the crime, but the
criminal himself. You harbor a criminal.
Suppose, while I am walking in an uninhabited place, 1 saw A kill B, since there is no witness,
nobody knows who is the killer. So, the wanted criminal-is unknown. But I did not report it I remained
silent In effect, 1 have harbored I have assisted the criminal from escaping. That is the net effect. Am I
liable as an accessory under Paragraph 3? NO, the act referred to here by the law is an active act, not a
passive act. Because a passive act is an omission not covered under Article 19. You may be accused of lack
of civil spirit, but you are not criminally liable as an accessory.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
144
145
Issue: can the trial of an accessory proceed without awaiting the result of the separate charge of the
principal?
Held: YES. The corresponding responsibilities of a principal, accomplice and accessory are distinct from
each other. As long as the commission of the offense can be duly established-in evidence, the determination
of the liabilities of accomplices and accessories may proceed independently of that of the principal.
In connection with paragraph 3, there is a law where the language is similar to paragraph 3 but
broader. That is PD1829 also known as Law Penalizing Obstruction of Justice
SECTION 1, PARAGRAPH c x x x harboring or concealing, or facilitating the escape of
any person he knows, or has reasonable ground to believe that-the suspect has committed any
offense under existing penal laws in order to prevent his arrest, prosecution and conviction.
For example, A committed rape and asks his friend to help him escape. Is the friend an accessory
under the Penal Code? The answer is NO, because there is no mention of rape, Can the friend be liable
under PD 1829? YES, because the law says; "xxx any offense under existing penal laws", Similar to AntiFencing Act, you are not an accessory but a principal for obstruction of justice.
Question: Suppose, the crime is drug pushing, are you an accessory under the RPC?
Answer: No. but, under PD 1829, you can still be liable.
This is the interesting Question: you commit a felony... a slight physical injury. I am a policeman
and I concealed you. So, the public officer exceeded his function. Question: Is the policeman liable as an
accessory under RPC? Answer: NO, because it is only a light felony. But is liable under PD 1829? YES,
because it docs "not distinguish. It states "any offense". What is worse is the penalty for the principal is
arresto menor but under PD 1829, prison correctional... So, 6 years. Am I saying that is the answer? I do not
say that is the answer, but that seems to be the answer.
Art. 20. Accessories who are exempt from criminal liability. The penalties prescribed for
accessories shall not be imposed upon those who are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the
same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of
the next preceding article.
What is contemplated by the law is that the principal and the accessory are relate? It is natural that
relatives protect each other. Hence, the law understands that. So, the relative who conceals the body or
effects of the crime or conceals the criminal who is a relative is exempted form criminal liability by reason
of public policy.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
146
Note: This is an exempting circumstance. Exception is an accessory under paragraph 1 who profits or
assists the offender to profit by the effects of the crime." In that situation, you have not desired to make the
family clean, you have also tainted the family's name.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
147
TITLE THREE
PENALTIES
Chapter One
PENALTIES IN GENERAL
Art. 21. Penalties that may be imposed. No felony shall be punishable by any penalty not prescribed
by law prior to its commission.
Whether you like it or not, the study of penalties is part of the RFC, liven in the definition of the
course, it is a branch or division of law which defines crimes, treats of their nature and provides for their
punishment. So, what is the use of defining crime without any penalty?
For example, under the Penal Code, if you kill somebody with treachery, you commit murder. So,
what happens to you? With intent to kill, you stabbed somebody, then he died. When you attacked him,
you did not give him a chance to defend himselfadmitted. That the mode of attack was blunt-, again,
admitted. So, you are guilty of murderstill admitted. What about it? There is no penalty, anyway. That is
why the law on penalties is .unavoidable.
Question: How do you define penalty?
Answer: Penalty is the suffering that is inflicted by the State for the violation or transgression of a law.
Penalty signifies pain. It is something that you do not relish because if penalty is something enjoyable, then
everybody would be encouraged to commit a crime.
Question: What are the juridical conditions of penalty under the Classical Theory of Criminal Law?
Answer: These are not part of the article, but these are the philosophical background behind the penalty.
The different juridical conditions of penalty are the following:
1.
Must be productive of suffering, without however affecting the integrity of the human
personality. (Suffering: if you suffer, your dignity as human being should also not be impaired. That's
why the constitution prohibits unusual punishment, because they are degrading.)
2.
Must be commensurate with the offense-different crimes must be punished with different
penalties. {Commensurate: That is one of the characteristics of the Classical theory. A grave
felony deserves a higher penalty. A less grave felony or light felony deserves a lesser penalty.
There must he a proportion. It is absurd when the penalty for murder and the penalty Jar slight
physical injuries are the same. There is something wrong. It is inequitable; it is unfair.)
3.
4.
(The criminal liability (personal penalty), once the convict dies, is totally, extinguished. You do
not say, he has a son, he will continue the penalty under the law on Succession.)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
148
5.
Must be legal. No one should be punished for the crime of another. (Nullum crimen, sine lege.
If there is no law, there is no penalty.)
6.
Must be certain. No one may escape its effects,( That is a theory. No one may escape its effects,
theoretically. That is being required by the law. The law should be fair, whether you are rich or
poor. Only, men have, prostituted the law. Bui the law itself is supposed to be certain and
equal.)
7.
8.
Must be correctional. (That purpose is correctionalto correct you so that you will not repeat
it.)
Prevention - The State must permit the criminal to prevent or suppress the danger of the State
rising from the criminal acts of the offender.
Self-defenseThe State has a right to punish the criminal as a measure of self-defense so as to
protect a society from the threat and wrong inflicted by the criminal.
Reformation- the object of punishment in criminal cases is to correct and reform the offender.
Exemplarity-- The crime must be punished to serve as an example to deter others from
committing crimes.
Justice- The criminal is punished to serve by the State as an act of retributive justice, a vindication
of absolute right and moral law violated by the criminal.
Social defense and exemplarity justify the penalty of death. When a person has proved himself to be a
dangerous enemy of society, the latter must protect it from such enemy by taking his life in retribution for
his offense and as an example and warning to
others.
Retribution or expiation - The penalty is commensurate with the gravity of the offense,
Correction or reformation
As shown by the rules which regulate the execution of the
penalties consisting in deprivation of liberty.
Social defense - As shown by its inflexible severity to recidivists and habitual delinquents.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
149
Art. 22. Retroactive effect of penal laws. Penal Laws shall have a retroactive effect insofar as they favor
the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article
62 of this Code, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.
Question: We will give a penal law retroactive effect if it is favorable to the accused. Even if the accused is
already serving sentence?
Answer: Yes, it will benefit him in whatever stage he is found, whether before the trial or during the trial.
Question: What is the reason why a favorable statute may be given retroactive effect?
Answer: The reason: to be consistent with public policy, if Congress changes the law, let us say, by lowering
the penalty or eliminating the crime, the crime has already been eliminated because the act, criminal before
is no longer a crime now, then it could be inconsistent for the State to still insist on the continued
punishment or prosecution of a person. There might have been already a supervening case of policy.
So, to maintain consistency why do we insist that these people be still prosecuted when there is
already a change in the policy of the State. That is the reason behind that.
That's why even if he is in jail, the question is: 1 low do you have a person released from jail when
there is already a final judgment? The remedy is habeas corpus, because the moment the new law repealed
the old law or the new Ian imposed a lower penalty and you have already -gone beyond it, the excess, the
penalty, or the confinement automatically becomesillegal.
That has teen applied recently by the SC in the case of Ordonez vs. Vinarao, a1994 decision. People,
who were convicted before the drug pushing, under the law- under the aid law, the penalty for drug
pushing was life imprisonment, liven if you arc caught pushing one stick of marijuana, life imprisonment.
You sell one truckload of marijuana, life imprisonment. If you are caught selling one or two sticks, life
imprisonment
But RA 7659 has changed the policy, now it's by gram. For marijuana, it is 750 grams or more,
possession or pushing, the penalty is reclusion perpetua to death. From 1 gram to 749 grams, by stages. So,
in effect, if you are a small time pusher the penalty under the new law is lower. Now, this is the new law, so
it benefits those who were convicted under the old law, those sentenced to life imprisonment.
There was a pusher convicted in 1986, life imprisonment. In 1994, he has already been in jail for 8
years and still has a Song time to go because of life imprisonment. 1 le said: **lfj were prosecuted under the
new law, 6 years should have been the maximum, prision correctional. I have been in jail for 8 years now.
What should I do? The OR through its Chairman Sedfery Ordonez filed a petition for habeas corpus for
him, because the law should be given retroactive effect
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
150
The SC said: Yes, applying Article 22 of the RFC. They have been in jail for eight years; release
them. They should be ordered released. The habeas corpus proceeding decided on December 1994. As a
matter of fact, the SC ordered in that case of Ordonez vs. Vinarao, the Director of Prisons to submit to this
Court a list of all prisoners there who were convicted under the old law.
The SC ordered their release because it was beyond the maximum term under the law. It is a
perfect example of retroactivity of a new law.
Art. 23. Effect of pardon by the offended party. A pardon of the offended party does not extinguish
criminal action except as provided in Article 344 of this Code; but civil liability with regard to the
interest of the injured party is extinguished by his express waiver.
The offended party cannot pardon, because the offense is not against you It is against the People of
the Philippines and technically you are only a witness for the society. So, you cannot " talk" of society. That
is the reason behind that: If you ask: How come, in practice, there are may cases dismissed because of the
Affidavit of Desistance, where the witness does not want to testify? That is what is happening in practice.
Well, actually there, the fiscal may file a motion - not because of pardon. Because if the fiscal will state in his
motion: We move to dismiss because the accused has already been pardoned by the offended party. If I will
be the judge, I will deny your motion because you are violating Article 23.
Pardon by the offended party is a mere agreement. Usually the fiscal will state in his motion: With
the hostility of the principal witness, I can no longer prove this case beyond reasonable, doubt.
How can I prove this case if no one will testify? The prosecution's witness turned hostile, who is
the offended party. So, the judge will dismiss the case for insufficiency of evidence. Well, in reality in the
motion it is not a ground Under the Rules on Criminal Procedure, if the prosecution witness is hostile; the
fiscal can move for his arrest and place him in jail until he cooperates.
The reason is you are not a witness for yourself; you are a witness for the People. How come this is
happening everyday? Because nobody is complaining. If you are the accused will you complain? You are
happy because there is no more case. If you are the offended party or victim, will you be satisfied? Of
course, because the civil liability has been paid. It is too much hassle to go to and fro in court. If you are the
defense lawyer, you are happy because the case is over. You are given your attorney's fees. The fiscal is
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
151
happy because that in one work less. The judge is happy because that is minus one case. Because
everybody is happy, nobody will complain.
But actually, they escape Article 23. They cannot cite pardon. What is extinguished is the civil
liability. That is within your controlcondonation or remission of the debt, one of the modes of
extinguishing civil obligation. The only instance under the Penal Code, where pardon by the offended
party produces certain effects.
ARTICLE 344(3), RFC, - The offenses of .seduction, rape, acts of lasciviousness, shall not be
prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian,
nor in any case, if the offender has been expressly pardoned by the above-named persons, as the case may
be.
These are private crimes, which cannot be prosecuted de oficio. If the victim refuses to testify, yon
have to honor the spirit because of the ruling Unit; If you are a victim of rape, etc, that is something
personal you may prefer to suffer in silence rather than go through the scandal of n public trial. Pardon
here is a bar to criminal liability. Meaning, it is an obstacle to the case proceeding in court.
So, it must be made before the institution of the action. So, what happened when the case of rape
was already filed in court and, in the middle of the trial, the victim will say: I don't want to do this
anymore! Can her pardon be given effect?
No more, because the criminal action has already been instituted and it is no longer within her
control. Because when you say pardon is a bar, it means it is an obstacle to the tiling of the criminal case.
Once the ease is tiled, pardon is useless.
What extinguishes criminal liability where the case is instituted is marriage between the offender
and the offended party. That is one of the modes of extinguishing criminal inability trader Art.89 (7). By
marriage of the offended woman, as provided in Article 344 of this Code. Notice, under Article 89, what are
the modes of extinguishing criminal liability? There is no mention of pardon. What is mentioned there is
marriage between the offender and the offended party, The only pardon mentioned there is absolute
pardon by the President under Art.89(4) and not pardon by the offended party.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
152
Art. 24. Measures of prevention or safety which are nor considered penalties. The following shall not
be considered as penalties:
1. The arrest and temporary detention of accused persons, as well as their detention by reason of
insanity or imbecility, or illness requiring their confinement in a hospital.
2. The commitment of a minor to any of the institutions mentioned in Article 80 and for the
purposes specified therein.
3. Suspension from the employment of public office during the trial or in order to institute
proceedings.
4. Fines and other corrective measures which, in the exercise of their administrative disciplinary
powers, superior officials may impose upon their subordinates.
5. Deprivation of rights and the reparations which the civil laws may establish in penal form.
Question: what are the conditions of penalty under the classical theory in criminal law?
Answer: To commensurate the offense, rational. One of the characteristics is that it should be legal.
Penalties should be legal. Meaning, it is a penalty provided for by law and imposed by the court.
Article 24 enumerates certain acts where there appears to be a penalty because penalty could mean
pecuniary penalty like a fine. Incarceration, your liberty is taken from you like imprisonment. And if you
look at Article 24, it seems to fit a penalty but the trouble is that there is no judgment of conviction. The
court has never ordered you to pay a fine or has never ordered your incarceration.
So, it appears to be a penalty in the eyes of the penal code. Why? It is only a measure of prevention
or safety. You are not being penalized. It is a measure of prevention or safety for you. So, if you undergo
any of these, you come out, we cannot say you are an ex-convict because you have never been penalized.
Unlike a person who is sentenced to jail, he served the sentence. When he goes out from the jail, ex-convict.
But if you go to article 24, you are not a convict because it is not a penalty.
If the person is insane, he is killing people, what shall we do? Well, he could be ordered arrested
and confined at a mental hospital. Put him in the isolation ward. He is like being in prison. He is placed
there like a sentenced criminal. How can he be liable? He is even exempt from criminal liability for being
insane. What is the confinement for? That is only a measure of prevention or safety. Because if he will be
allowed to walk around, he might kill more people. So, he is not really being penalized. [Article 24 (2)]
Article 80 has already been taken over by PD 603. This refers to suspended sentence of minors. He
asks for suspended sentence. He is committed to a rehabilitation center. So, it is as if he is imprisoned. No,
that is not the measure of prevention or safety. How can he be penalized when practically there is a
suspension of the sentence? So, it is not considered as penalty.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
153
Article 24 (3)
Actually suspension form employment or public office is a type of penalty under the RPC for
certain crimes. Once you are found guilty, you are suspended from holding public office. That is
the penalty but the suspension referred here is not a penalty because you have not been convicted.
Like for Example How come that under the Anti Graft Act, if you are a public officer facing a crime,
under the law, the Sandiganbayan will order you suspended for 90 days even a policeman facing a criminal
case'' He will be suspended. Arc thev already adjudged as guilty? Are they being penalized? No. They are
still presumed innocent. What is that suspension? that is a measure of prevention or safety. So that you will
not use your position to influence witnesses for or against you. So that is not a penalty, but only a measure.
So you cannot say that you are already being convicted. And if you are acquitted, the government will pay
you. Everything will be paid to you during the period of your suspension while the case is going on,
Article 24,(4)
Fine is a penalty under the Penal Code. Also other corrective measures are considered penalties
under the Penal Code. But under the Civil Service Act, the CSC can also impose a fine in administrative
cases involving those of the government service. And the head of office, the superior office of the
government authorized to hand down penalties like lines, suspension, etc.
So, that is not a criminal fine. That is only an administrative line. You are not considered a
convicted person by being found liable under the Civil Service act.
Article 24,(5)
Deprivation of rights which the law may establish in penal form. Penalty could be deprivation of
civil rights -the right to vote, etc. Now, if you are not careful, you will think of other things. If you ask
somebody: Give an example of deprivation of rights under the penal code'' He might be tempted to say;
Actually the example, the penalty you can give there is the penalty of civil interdiction.
Civil interdiction is a measure of prevention or safety which is not a penalty. You are wrong civil
interdiction is a penalty under the RPC. You look at the next article, Article 25. You look at the accessory
penalties.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
154
ARTICLE 25 - Penalties which may be imposed The penalties which may be imposed, according to this
code, and their different classes, are those included in the following:
xxx
ACCESSORY PENALTIES
Perpetual or temporary disqualification
Perpetual or temporary special disqualification
Suspension from public office, the right to vote and be voted for, the
profession or calling
CIVIL INTERDICTION
Indemnification
Forfeiture or confiscation of instruments and proceeds of the offense
Payment of costs.
Example: Under Art. 34 of the RPC, one of the effects of civil interdiction if you are found guilty, you will
be placed under civil interdiction) is you arc deprived of your parental authority over your children. Now,
suppose it is a civil case where a father or a mother maltreats or abuses his or her own child. So. a case is
filed in court against the parent and the court says For maltreating or abusing your own child the court will
deprive yon of your parental authority and transfer it to the grandfather of the child.
The loss of parental authority is similar to being sentenced to a civil interdiction. You were not
sentenced to civil interdiction, but sentenced to that penalty in the civil case, it is not considered as a
criminal penalty but a civil penalty analogous to civil interdiction. That is what a par.5 of Art 24 means. It
does not refer to the penalty of civil interdiction but to a penalty imposed by the court in a civil case which
is analogous to civil interdiction.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
155
Chapter two
CLASSIFICATION OF PENALTIES
Art. 25. Penalties which may be imposed. The penalties which may be imposed according to this Code,
and their different classes, are those included in the following:
Capital Punishment:
Death
Afflictive Penalties:
Reclusion perpetua
Reclusion Temporal
Perpetual or temporary absolute disqualification
Perpetual or temporary special disqualification
Prision mayor
Correctional Penalties:
Prision Correctional
Arresto Mayor
Suspension
Destierro
Light Penalties:
Arresto menor
Public censure
All the penalties known under the Penal Code are found in Art. 25. Art. 25 classifies penalties into
two main classes:
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
156
The accessory follows the principal. I will say: "You are hereby sentenced to 14 years of reclusion
temporal." What type of penalty is this? Principal? "You are hereby sentenced to death. " The death penalty
is the principal.
Question: The court said: "You are hereby sentenced to 20years of reclusion temporal (only and never
mentioned anything). During the 20 years, am I entitled to vote? Am I entitled to hold public office? Can I
exercise parental authority over my children?
Answer: I cannot. Why? Because if you are sentenced to 20 years of reclusion temporal, you are also
suffering from suspension, disqualification, and civil interdiction. And you cannot say: We, the court never
said that. The court should have said: You are hereby sentenced to 20 wars of reclusion temporal plus civil
interdiction, etc. there is no mention. There is no need because it is deemed imposed. No need to mention
it. It is deemed included.
Question: What penalties are principal and at the same time accessory?
Answer: 1. Suspension
2. Perpetual or temporary absolute disqualification; and
3. Perpetual or temporary special disqualification
Question: How can a penalty be a principal and at the same time accessory? How can it be expressly
imposed and at the same time deemed imposed?
Answer: What it means to say is, for some crimes, disqualification or suspension is the principal penalty
because that is the penalty prescribed by the law. But for other crimes it is not the principal penalty but
only accessory. So, it depends on the crime.
Question: Are there other disqualifications of penalties under the Penal Code aside from principal and
accessory?
Answer: You can give other classifications, although not found in the law expressly. Another classification
is whether indivisible or divisible.
Question: What do you mean by indivisible? By divisible?
Answer: Penalty is indivisible if it has no fixed duration. A divisible penalty is penalty which has a fixed
duration and is divisible into 3 parts known as minimum period, medium period and maximum period
A perfect example of an indivisible penalty is the death penalty (capital punishment). You are
hereby sentenced to death. The court will not .say: You are hereby sentenced to death for 10 years. So, that
is a good example. Perpetual disqualification is considered indivisible.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
157
Now, divisible, practically the majority arresto menor ~ I day to 30 days. So not less than 1. not
more than 30. Divisible into 3 parts: I to 10 days; 11 to 20 days; 21 to 30 days. So, that is another
classification, indivisible and divisible.
Another classification based on the nature of the penalty is... you know penalties have many
classes. There is deprivation of rights, there is fine or payment of costs, there is imprisonment. So, penalty
does not necessarily mean that you will go to jail. The penalty of fine, there is no imprisonment here Bui
you can also forfeit your life like death So, penalties could be classified into many pans.
158
That is how you classify fine. You look at the law, what kind of penalty is that? Fine of P20,000.00 afflictive, if it is ranging from P200 P6.000 it is considered correctional penalty which is less than P200. Fine
P50 - it must be a light penalty.
Question: What is a light felony'" Go back to Art. 9, what is the definition of a light felony?
Answer: Light felonies are those infractions of law for the commission of which a penalty of arresto menor
or a fine not exceeding 200 pesos or both is provided.
Fine not exceeding P200 pesos. So, if the line is exactly P200, light. But in Art 26, if a fine is exactly
P200, it is correctional.
PROBLEM: Suppose after trial, the court sentenced him of a maximum fine of P200. Is the penalty light or
not? In this case, it is not a light penalty but correctional
Question: But is the felony light?
Answer: Yes, the felony is light although the penalty is correctional. So, you know which is applicable
depending upon the issue asked.
Question: Is there a legal significance of the difference?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
159
Answer: I will now show the significance of the difference. A is accused of slight physical injuries which
Carries the penalty of arresto menor or a fine not exceeding P200. Under the law on prescription of crime,
what is the prescriptive period for the crime? Under the law, Art 90, what is the prescriptive period for the
light felony? Art. 90, last paragraph.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
160
PROBLEM: The court upon conviction, sentenced him to pay a tine of P50 with subsidiary imprisonment
in case of insolvency. Here he does not want to go to jail, he also does not want to pay the fine He wants to
evade the penalty.
Question: What is the prescriptive period for him n-> evade penalty?
Answer: If the fine is P199, so the penalty is light Art. 92, light penalties prescribe in 1 year, so, you have to
hide for I year
Suppose after trial, the court sentenced him to pay not PI99 but P200. The court, add P1 for
maximum, with subsidiary imprisonment in case of insolvency. He does not want to pay the fine; he does
not also want to serve the subsidiary imprisonment.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
161
Chapter Three
DURATION AND EFFECT OF PENALTIES
Section One Duration of Penalties
Art. 27. Reclusion perpetua. Any person sentenced to any of the perpetual penalties shall be pardoned
after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other
serious cause shall be considered by the Chief Executive as unworthy of pardon.
Reclusion temporal. The penalty of reclusion temporal shall be from twelve years and one day to
twenty years.
Prision mayor and temporary disqualification. The duration of the penalties of prision mayor and
temporary disqualification shall be from six years and one day to twelve years, except when the penalty
of disqualification is imposed as an accessory penalty, in which case its duration shall be that of the
principal penalty.
Prision correccional, suspension, and destierro. The duration of the penalties of prision correccional,
suspension and destierro shall be from six months and one day to six years, except when suspension is
imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty.
Arresto mayor. The duration of the penalty of arresto mayor shall be from one month and one day to
six months.
Arresto menor. The duration of the penalty of arresto menor shall be from one day to thirty days.
Bond to keep the peace. The bond to keep the peace shall be required to cover such period of time as
the court may determine.
The first important amendments introduced by the Heinous Crimes Law, RA 7659, is he
amendment of the first paragraph of Art 27 which (radicalized the penalty of reclusion perpetua. The law
says: The penalty of reclusion perpetua shall be from 20 years and one day to 40 years.
This is now the new law. Before the amendment, if the person is sentenced to reclusion perpetua,
he shall be introduced after 30 years unless the President does not consider him worthy of pardon.
Therefore, there is really no duration. The President may or may not pardon him after 30 years. But now.
the law says: "20 years and 1 day to 40 years". Meaning, continuation na ng reclusion temporal because
reclusion temporal is 12 years and 1 day to 20 years. And therefore because of the amendment, the question
is asked:
Question: What kind of penalty is reclusion perpetua? Is it divisible or an indivisible penalty?
Answer: There is no question what it is prior to the amendment. Prior to amendment, the rule on reclusion
perpetua was that it was an indivisible penalty. It had no fixed duration. What the law, provided was that
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
162
you shall be pardoned alter 30 years unless the President does not consider you worthy of pardon. So you
may be pardoned after 30 years, 31, 35, etc, -because there is no duration.
But now, with that 20 years and 1 day, is it now a divisible penalty with a fixed duration of 20 years and
1day but not more than 40 years?
Because the SC connected it with Art 63 {Rules for (the application of indivisible penalties) of the
RPC, Art. 76(legal period of duration of divisible penalties). Art, 41 (Reclusion perpetua and reclusion
temporal), and Art. 61 (Rules on graduating penalties).The SC noted that all these articles are related which
were not touched by the amendments. Therefore, if you will say the amendment of Art. 27 had converted
reclusion perpetua into a divisible penalty, it will cause confusion and render nugatory the articles of the
Penal Code to avoid that, the SC said it is still an indivisible penalty
So with that, because of the ease of Lucas, the original decision, the SC sentenced the accused to a
specific term of 34 years, 6 months, which obviously was wrong' The SC admitted. When you sentence a
person with perpetua, the judge says: "You are hereby sentenced to reclusion perpetua" Do not say any
number of years, months or days. It means to say you may be pardoned after 20 years and 1 day or after 20
years and 2 days. Meaning, you wait for your pardon. If no pardon is given, after 40 years you are a free
man. Do not state any specific number of years or months.
Take note that it is a common error by all courts throughout the country in equating the penalty of
reclusion perpetua with the penalty of life imprisonment.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
163
LIFE IMPRISONMENT
Whereas, life imprisonment has no definite
duration. You cannot know if you may be
pardoned after 20 or 25 years. It is really for life
Does not carry accessory penalty
The penalty for crimes not under the RPC but
under the special laws.
The perfect example of that life imprisonment is that of illegal recruitment under the Code. You look at the
Labor Code - the penalty is life imprisonment. It is not reclusion perpetua. The SC has been very emphatic
on the difference. There are many things that are mentioned in the new cases
The Dangerous Drugs Act, although a special law, borrowed the penalty of reciusion perpetua
from the Revised Penal Code.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
164
Administrative Circular No. 68-92, reminded judges to strictly follow the correct application of the penalties
of reclusion perpetua and life imprisonment for offenses punishable under the Penal Code and special
laws, respectively, future lapses on the part of the trial judges on this matter will merit proper
administrative sanctions.
Art. 28. Computation of penalties. If the offender shall be in prison, the term of the duration of the
temporary penalties shall be computed from the day on which the judgment of conviction shall have
become final.
If the offender be not in prison, the term of the duration of the penalty consisting of deprivation
of liberty shall be computed from the day that the offender is placed at the disposal of the judicial
authorities for the enforcement of the penalty. The duration of the other penalties shall be computed
only from the day on which the defendant commences to serve his sentence.
Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders who have
undergone preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive imprisonment,
if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed
upon convicted prisoners, except in the following cases:
and
1. When they are recidivists or have been convicted previously twice or more times of any crime;
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
165
2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time
during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17,
1970).
Whenever an accused has undergone preventive imprisonment for a period equal to or more than
the possible maximum imprisonment of the offense charged to which he may be sentenced and his case
is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which
the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive
imprisonment. (As amended by E.O. No. 214, July 10, 1988).
166
month. But in no case shall compensation exceed P1,000 00 per month That is the maximum So, if you are
imprisoned for 10 months, at least the DOJ will say, "O, here's your P10,000.00 that is the maximum"
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
167
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The penalties of
perpetual or temporary absolute disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held even
if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or to be elected to such
office.
rights
3. The disqualification for the offices or public employments and for the exercise of any of the
mentioned.
Art. 31. Effect of the penalties of perpetual or temporary special disqualification. The penalties of
perpetual or temporal special disqualification for public office, profession or calling shall produce the
following effects:
1. The deprivation of the office, employment, profession or calling affected;
2. The disqualification for holding similar offices or employments either perpetually or during
the term of the sentence according to the extent of such disqualification.
Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the
right of suffrage. The perpetual or temporary special disqualification for the exercise of the right of
suffrage shall deprive the offender perpetually or during the term of the sentence, according to the
nature of said penalty, of the right to vote in any popular election for any public office or to be elected to
such office. Moreover, the offender shall not be permitted to hold any public office during the period of
his disqualification.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
168
Art. 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of
suffrage. The suspension from public office, profession or calling, and the exercise of the right of
suffrage shall disqualify the offender from holding such office or exercising such profession or calling
or right of suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another having similar functions
during the period of his suspension.
Art. 34. Civil interdiction. Civil interdiction shall deprive the offender during the time of his sentence
of the rights of parental authority, or guardianship, either as to the person or property of any ward, of
marital authority, of the right to manage his property and of the right to dispose of such property by
any act or any conveyance inter vivos.
Art. 35. Effects of bond to keep the peace. It shall be the duty of any person sentenced to give bond to
keep the peace, to present two sufficient sureties who shall undertake that such person will not commit
the offense sought to be prevented, and that in case such offense be committed they will pay the amount
determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk
of the court to guarantee said undertaking.
The court shall determine, according to its discretion, the period of duration of the bond.
Should the person sentenced fail to give the bond as required he shall be detained for a period
which shall in no case exceed six months, is he shall have been prosecuted for a grave or less grave
felony, and shall not exceed thirty days, if for a light felony.
Article 30-35 of the RPC tells us the effects of various types of penalties particular!) those where
you are deprived of your rights.
Question: What are the penalties which can deprive rights?
Answer: 1. Perpetual or temporary absolute disqualification;
2. Perpetual or temporary absolute disqualifies;
3. Suspension;
4. Civil interdiction. There is a restriction on your capacity to act under the civil law.
Question: What are the effects of civil interdiction?
Answer: Article 34. That's why civil interdiction is not a civil law issue. It is a criminal law issue It is a
penalty under the Penal Code although accessory. When a person is sentenced to a certain principal
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
169
penalty, practically, he is under civil interdiction. What are the effects or state the effects of civil interdiction.
How can you answer that if you do not know Article 34.
For example, a father loses parental authority over his children, although the mother is already
gone. If he is a guardian over anybody or over person or of property, the guardianship is automatically
removed, they cannot manage the community of property, conjugal or absolute. So, the wife, for example,
has the sole power of administration. He cannot even manage his own property. Somebody must manage it.
And he cannot convey any property inter vivos. Inter vivos means to take effect during your lifetime. So,
you cannot sell your property. The sale is defective. You cannot donate. You cannot enter into a contract
because you cannot convey your property inter vivos.
Suppose, a convict during his civil interdiction prepared a last will and testament
where he said After my death, this property goes to A, that property goes to H Is there a valid will and a
valid disposition considering (lie fact that he is under civil interdiction'' Will the civil interdiction invalidate
the disposition7 No. Because the disposition is not inter vivos but mortis causa. So any convict under civil
interdiction validly execute a last will and testament? Yes. because that is not covered by Article 34.
Art. 36. Pardon; its effect. A pardon shall not work the restoration of the right to hold public office, or
the right of suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence.
Question: How do you distinguish Article 36 from Article 23 which reads. "Effects of pardon by the
offended party. A pardon by the offended party does not extinguish criminal action except as provided in
Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by
his express waiver. "
Answer: Article 23 talks of pardon by the offended party, or pardon by the victim; whereas. Article 36 talks
of pardon by the President. What extinguishes criminal liability is Article 36, pardon by the President in
relation to Article 89 on the modes of extinguishing criminal liability. Although Article 36 is very clear,
pardon by the President docs not extinguish civil aspect
So, the basic distinction is: Pardon by the offended party extinguishes the CIVIL liability but NOT
the criminal liability, while the pardon by the President extinguishes the CRIMINAL but not the civil
liability.
PROBLEM: Suppose, a person is sentenced to prison, let's say, he is sentenced to 20 years imprisonment,
which automatically carries with it certain accessory penalties like suspension, disqualification to vote or
be voted for, civil interdiction - it is included.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
170
Suppose after 5 years in jail, the President pardons him and he is now released So the criminal
liability is extinguished. From 20 years, after 5 years, pardoned.
Question: What happens now to civil interdiction, the disqualification? Are those penalties are deemed
removed by the pardon? Does the pardon of the principal carry with it pardon of the accessory penalties?
Answer: If we stick to the general rule, the accessory follows the principal, pardon of the principal
automatically carries with it the pardon of accessory penalties. But not in criminal law because the law
says; "A pardon shall not work the restoration of the right to hold public office, the right of suffrage unless
suchh rights be expressly restored by the pardon.
Therefore, if the pardon by the President is in general terms, the principal penalty is pardoned but
the accessory penalties remain. So you cannot run for public office; you cannot vote, you cannot manage
your property because you are still under civil interdiction until 20 years shall have lapsed.
Question: Normally, how should the pardon be worded?
Answer: The pardon should be worded like this'. "You are hereby pardoned and restored to your full civil
and legal rights." So with that pardon, it is meant that the principal and the accessory penalties are
pardoned. But if it is worded: "You are hereby pardoned" The accessory penalties should remain. That is
the rule on Article 36.
Art. 37. Cost; What are included. Costs shall include fees and indemnities in the course of the judicial
proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations
in force, or amounts not subject to schedule.
Art. 38. Pecuniary liabilities; Order of payment. In case the property of the offender should not be
sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of consequential damages.
3. The fine.
4. The cost of the proceedings.
Question: What are the pecuniary liabilities of an accused under the law? What are the civil liabilities
payable in terms of money?
Answer: There are 4....
Reparation
}
civil in nature
Indemnification
}
civil in nature
Fine
}
payable to the government
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
171
Cost
}
payable to the government
Question: What happens if a convict is sentenced to make reparation to the offended party offended by
him, to pay the fine and to pay the costs And the convict does not have the money or assets to satisfy all.
His assets are just sufficient to make one or two. What is the order of payment?
Answer: The order of payment is reparation, first. If there is still money left, the balance for
indemnification. The thud priority is fine. And, the last is of course the cost Order: reparation;
indemnification; fine and costs
So, this is one instance where the government will insist that it be paid first i his time the
government decides to be generous They are giving priority to the Civil liability rather than to the
pecuniary penalties.
Art. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in
the paragraph 3 of the nest preceding article, he shall be subject to a subsidiary personal liability at the
rate of one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain
under confinement until his fine referred to in the preceding paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not
exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall
not exceed fifteen days, if for a light felony.
3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment
shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but
such penalty is of fixed duration, the convict, during the period of time established in the preceding
rules, shall continue to suffer the same deprivations as those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered by reason of his
insolvency shall not relieve him, from the fine in case his financial circumstances should improve. (As
amended by RA 5465, April 21, 1969).
Subsidiary penalty applies where a person is sentenced to pay a fine and he cannot pay the fine.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
172
Question: What happens if the convict cannot pay the reparation, indemnification and the cost? Is there
subsidiary penalty?
Answer: The answer is NO, Article 39 is very specific, there is no subsidiary penalty for non payment of the
fine. There is no mention of reparation, indemnification or costs.
For example, the fine is P20.00. So, OK 00 one day. Another P8.00 one day. It is already two P16.00.
What about the balance of P400.? So 2 days of subsidiary imprisonment? Not only 2. The fraction of a day
is not counted. That is very clear in paragraph 1. the last clause - no fraction or part of a day shall be
counted against the prison.
Suppose the convict is sentenced to pay the fine, can pay the fine but says: I would rather go to jail
than pay the fine
Question: Can he do that?
Answer: If you look at the law. The law says: Is a convict has no property with which to make the fine. Has no
property therefore, if there is property, Article 39 does not apply because the government can compel you
to pay by garnishing your bank account or by levying your property. He will be forced to pay.
That is how you compute it. For every P8 00, one day, but subject to the following rules.
1. If the principal penalty imposed be prison correccional or arresto and fine, he shall remain under the
confinement until his fine referred to in the preceding paragraph is satisfied; hut his subsidiary
imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a day shall be counted against the prisoner.
If it is prison correctional or arresto and fine imprisonment plus fine. Prision correctional or arresto
mayor plus fine. The computation is very simple. "You are herebysentenced to one year prision
correccional, and to a line of P80.00 with subsidiary imprisonment in case of insolvency. Your principal
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
173
penalty is 1 year and fine of P80.00. Ifyou cannot pay the fine, 1 day is equal to P8.00. So, 1 year + 10 days.
After one year, you cannot be released You still have to stay in jail for 10 days. The 10 days is what you
calledsubsidiary imprisonment.
We will go to an illustration is far as that one. Remember, we "should apply, when the penalty is
like this, prison correccional + fine; or arresto mayor + fine.
PROBLEM: Suppose a person is sentenced to 6 months or arresto mayor and to pay a fine ofP800 with
subsidiary imprisonment in case of insolvency. Suppose, the convict cannot pay the fine of P800 how long
will the subsidiary imprisonment last?
Under paragraph 1,100 days around 3 months and 10 days. The principal penalty is 6 months.
What is 1/3 of that'' 1/3 is 2 months. That is 60 days. According to paragraph 1, " in no case shall the
subsidiary penalty exceed 1/3 of the principal penalty". The principal penalty is 6 months, 1/3 of that is 60
days. This is already 100 days automatically reduced to 60 days,
penalty
PROBLEM: The accused is sentenced to 6 years of prison correccional and pay a fine of 3,200.00 that is his
penalty He cannot pay the fine,
Question: How long will subsidiary penalty?
Answer: let's count first. P800 = 1 day. That's 400 days. Let's find out. What is 1/3 of the principal penalty?
1/3 is 2 years. Does this exceed 2 years? Therefore, it can be. It does not exceed 2. However, in no case
should it last longer than 1 year. So it will be automatically reduced to one year. That is the maximum. 7 hat
is the second limitation: in no case shall the penalty exceed 1/3 of the principal penalty, and in no case shall
it go beyond 1/3 of the entire penalty.
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six
months, if the culprit shall have been prosecuted for a grave or less grave felony and shall not exceed
fifteen days, if for light.
Paragraph 2 applies when the penalty imposed by the court is only a FINE.
So, there is no imprisonment unlike in par 1 where the principal penalty is imprisonment. Here we
have tine only. The same rule: if you cannot pay the fine, P800/day. But the maximum subsidiary
imprisonment is only 6 months if you are prosecuted tor grave or less grave felony.
So, even if the tine is P100, 000.00 "You are hereby sentenced to pay a fine of P100,000.00", you
cannot pay, even though how much, it is always 6 months.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
174
Or if you are only prosecuted for a light felony, the maximum is only 15 days. You are hereby found
guilty, pay a fine of P200.00. There is no more imprisonment, only the fine. You cannot pay P200.00. 200/8 =
25 days. You subtract 10. It must go down to only 15 days. Because if the penalty is only fine, then you are
prosecuted for a light felony, in no case should the subsidiary penalty exceed 15 days.
Do not confuse paragraph 1 and 2. In paragraph 2, the penalty imposed by the courtis only fine. In
paragraph 1, the penalty imposed by the court is prison correccional, or arresto + fine.
BAR Question: After he was found guilty and sentenced by the court to 6 years and 1 day and to pay a fine
of P80.00. flow long is the subsidiary penalty7 10 days And 10 days does not exceed 1/3 of the principal
penalty. Wrong. That is not par. 1. That is par. 3 If the penalty is 6 years and 1 day, that's already higher
than prison correccional. That is already prison mayor
Answer:
3. There is no more subsidiary penalty. There is no subsidiary penalty if the principal penalty is higher
than prison correccional. So prison mayor, reclusion temporal, perpetua, death There is no more
subsidiary penalty for non-payment of the fine.
That is Rule # 3. There is no more subsidiary penalty if the principal penalty is higher than prison
correctional
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such
penalty is of fixed duration, the convict during the period of time established m the preceding rules, shall
continue to suffer the same deprivation as those of which the principal penalty consists.
When the principal penalty is not to be executed by confinement. Meaning the principal penalties
does not consist of imprisonment, but of a fixed duration, the subsidiary penalty should be of the same
nature as the principal penalty. But it is a divisible penalty.
Example: Destierro it has the same duration as prison correccional. You cannot be imprisoned but you are
exiled. It is divisible because it has a fixed duration. So, it is the penalty. You are herein sentenced to 4 years
of destierro and to pay a fine of P80.00. Suppose,you do not pay the fine of P80.00.
Question: What will happen to you? You have to undergo subsidiary penalty: 1 day for every P8.00. So, ten
days of subsidiary, destierro also.
Answer: You do not say "subsidiary imprisonment'" because the principal penalty is not imprisonment. If
the principal penalty is destierro. die subsidiary pcnaity should also be
destierro.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
175
Another Example You arc sentenced to a penalty of suspension. Suspension is under Art 25. There
is also 6 months to 6 years. Divisible, but no imprisonment. So, four years of suspension; fine of P80.00. If
you cannot pay the fine of P80.00, you have to undergo 10 days of subsidiary suspension.
The subsidiary penalty should be of the same nature as the principal penalty. Do not always say "
subsidiary imprisonment" But you follow the rule in paragraph 4. In no case subsidiary destierro exceeds
1/3 of the principal penalty.
Question: Suppose the principal penalty is not to be executed in confinement, but it has no fixed duration.
Will paragraph 4 apply?
Answer: Of course, not
Question: Give an example of a penalty not to be executed by confinement but it has no fixed duration.
Answer: Public censure. It is the only example you can think of, it is only a light penalty where the judge
will give you severe censure it will be a blot on your record
For Example public censure + fine of P20.00. You cannot pay. So, you cannot say: two days of
subsidiary penalty of 2 days of public censure. You will keep on returning to the judge to be sermonized at.
5. The subsidiary personal liability winch the convict may have suffered by reason of his insolvency shall
not relieve him from the fine in case his financial circumstances should improve.
Suppose, I am asked to pay a fine of so much. I'm insolvent, as poor as a rat. So, I undergo
subsidiary penalty fine of P4.000.00, I have nothing to pay. Im imprisoned. Then I'm released after serving
my sentence plus the subsidiary imprisonment. Afterward', I win in the lotto. So, i have much money now.
The government will say "alright, pay your fine." You say "No more. I have already paid it through my
subsidiary imprisonment! What paid? You pay again! Question: Why? Answer: Because service of the
subsidiary penalty will not relieve you from the payment of the fine, if your financial condition will
improve in the future.
The government has only 10 years to collect the fine. Only 10 years. It is an obligation arising from
law and the prescriptive period is 10 years. Although, the law is silent. If your financial condition improves
after 10 years, no more. But in the first 10 years, you can be compelled to pay and you cannot use the
subsidiary imprisonment as a reason for not paying.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
176
Answer: It is not deemed imposed with the principal penalty. Meaning, it must be expressly mentioned in
the decision. And therefore, what happens if you arc ordered to pay a fine and you cannot pay the fine, but
there is nothing in the decision which mentions it. Article 25 says that you cannot undergo subsidiary
penalty, because it is not an accessory penalty
Question: But how will I know what are the accessory penalties? Suppose, I am sentenced to 12 years of
prision mayor. I know there are accessory penalties. But what are they? What are accessory penalties?
Suppose, I am sentenced to 15 years reclusion temporal, what are the accessory penalties? Suppose, I am
sentenced to 6 months of prison correccional. What are those deemed imposed? How do I look for the
accessory penalties?
Answer: Arts. 40 to 44. These provisions will tell you that if this is the principal penalty, these are the
accessory penalties attached to it.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
177
Section Three
Penalties in which other accessory penalties are inherent
Art. 40. Death; Its accessory penalties. The death penalty, when it is not executed by reason of
commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil
interdiction during thirty years following the date sentence, unless such accessory penalties have been
expressly remitted in the pardon.
Art. 41. Reclusion perpetua and reclusion temporal; Their accessory penalties. The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or
during the period of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.
Art. 42. Prision mayor; Its accessory penalties. The penalty of prision mayor, shall carry with it that of
temporary absolute disqualification and that of perpetual special disqualification from the right of
suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
Art. 43. Prision correccional; Its accessory penalties. The penalty of prision correccional shall carry
with it that of suspension from public office, from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall
exceed eighteen months. The offender shall suffer the disqualification provided in the article although
pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 44. Arresto; Its accessory penalties. The penalty of arresto shall carry with it that of suspension
of the right too hold office and the right of suffrage during the term of the sentence.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
178
Question:
What are the principal penalties which carry wish them the accessory penalty of civil
interdiction. In other words, civil interdiction is the accessory penalty to what principal penalties?
Answer: You can answer that only when you go to Articles 40-44. So, the principal penalties which carry
with them the accessory penalty of civil interdiction are:
Death
Reclusion perpetua
Reclusion temporal
PROBLEM: Suppose, you are sentenced to death, and you are scheduled to die between now and next
month, there is no commutation. Neither the President nor the SC has reduced the penalty. So, you are still
going to be executed.
Question: Is there civil interdict.
Answer: Technically, NONE. Unless it will be commuted. Technically, you are not under civil interdiction.
So, technically, you can donate your property, you can manage it, you can exercise parental authority. There
is no civil interdiction. I doubt how will you do it because you are already inside the jail But under the law,
you have no accessory penalty
When the President says: "You are hereby sentenced to reclusion perpetua" from that moment, you
are under civil interdiction.
Question: For how long'?
Answer: The law says for the next 10 years.
Question: Suppose, you are sentenced to reclusion temporal flow long is the civil interdiction?
Answer: Under Art. 41, it is of the same duration as the principal penalty. So, when it says 20 years of
reclusion temporal, civil interdiction will also be 20 years.
Question: Suppose you are sentenced to perpetua. You arc not sentenced to death, flow long will the civil
interdiction last?
Answer: Under Article 41, it says there, that if will last lot the rest of your life forever' Civil interdiction for
life. Or, during the period of the sentence refers to temporal or perpetua; civil interdiction for life
Under Article 40, if you are sentenced to death, and it was commuted to perpetua, the civil
interdiction is only good for 30 years Hut if you are sentenced to reclusion perpeiua, the civil interdiction is
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
179
for the rest of your life. There must be something wrong with the law. CONCLUSION: It is better to be
sentenced to death commuted to perpetua because the civil interdiction is only for 30 years, but if
sentenced to perpetua, civil interdiction is for the rest of your life. This is an awkward provision in the
Revised Penal Code.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty imposed
for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the
instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the
Government, unless they be property of a third person not liable for the offense, but those articles
which are not subject of lawful commerce shall be destroyed.
When you are found guilty, the instrument or tools used in the commission of the crime will be
confiscated or forfeited in favor of the State. This is also applied in special laws like illegal possession of
firearms or drug pushing. The shabu will not be returned to the pusher. In a homicide or murder case, the
weapon recovered and used as evidence, the gun, knife, bolo, will be confiscated. In illegal gambling, the
cards, dice, chips, they are ail confiscated b\ the order of the court. But, of course, you cannot apply that to
certain crimes. Like, for example, in rape, you cannot confiscate the instrument used in the commission of
the crime
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
180
Chapter Four
Application of Penalties
Section One
Rules for the application of penalties to the persons criminally liable
and for the graduation of the same.
Article 46.
Penalty to be imposed upon principals in general. The penalty prescribed by law for the
commission of a felony shall be imposed upon the principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony in general terms, it shall be understood as
applicable to the consummated felony.
Article 47.
In what cases the death shall not be imposed; Automatic Review of Death Penalty Cases.
The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except
when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or
is more that seventy years of age or when upon appeal or automatic review of the case by the Supreme
Court, the required majority vote is not obtained for the imposition of the death penalty, in which the
penalty shall be reclusion perpetua.
In all cases where the penalty is imposed by the trial court, the records shall be forwarded to the
Supreme Court for automatic review and judgment by the court en banc, within twenty (20) days but
not earlier than (15) days after promulgation of the judgment or notice of denial of any motion for new
trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing
thereof by the stenographic reporter.
Now, Article 47 was amended by the Heinous Crimes Law. In what instances will the death
penalty be NOT imposed? There are three (3) instances here. Take note that the law says: The death penalty
shall be imposed in all cases in which it must be imposed under existing laws. The personal belief of the judge is
irrelevant. He must follow the law.
The following are the instances when death penalty will not be imposed:
1.
When the guilty person is below 18 years of age at the time of the commission of the crime (
there is an automatic lowering of the penalty by 1 degree);
2.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
181
When upon appeal or automatic review of the case by the Supreme Court the required
majority vote is not obtained for the imposition of the death penalty.
Question: When is the constitutional proscription against the imposition of the death penalty dated? Give
the legal basis of your answer.
Answer: The Heinous Crime Law took effect after 15 days following its publication in at least 2
newspapers of general circulation. It was published on December 16, 1994. So, with that the effectivity is
December 31, 1994.
3.
Article 48.
Penalty for complex crime. When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means of committing the other, the penalty for the most
serious crime shall be imposed, the same be applied in its maximum period.
First of all, we will deal with the concept of plurality of crimes. It means to say that the person
performed a series of criminal acts - one after the other. You commit 2 or more crimes. One after the other.
There are supposed to be two types of plurality of crimes. The 1 st case is material or real plurality,
as distinguished from formal or ideal plurality of crimes.
1.
Material or plurality means that the person performs 2 or more criminal acts after the other and he is
liable for every criminal act that he commits because every crime is motivated by a separate criminal
intent from the other.
A perfect example is when someone runs amok. He started shooting people, even those he doesn't
know. He killed so many. He killed the persons one after the other. If he killed 30 people, he will be
guilty of 30 counts of homicide. The criminal intent to kill victim #1 is different from the criminal
intent to kill victim #2. There are 30 criminal acts. There should also be 30 separate information.
Although from the viewpoint of criminal procedure, in order to expedite the proceedings, they can be
consolidated. If he is found guilty, there will 30 convictions and 30 penalties.
2.
Formal or real plurality means that a person commits 2 or more criminal acts, there will be 2 or more
victims or offended parties, but in the eyes of the law, only one crime was committed.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
182
When a single act constitutes 2 or more grave or less grave felonies, which is also called
Compound Crime or Delito Compuesto;
When an offense is committed as a necessary means to commit the other which is
called complex crime proper or delito complejo.
Another example. Aberratio Ictus. The accused, with intent to kill A and aiming his gun towards A
fired it but because of poor aim, he did not hit A but instead hit and killed B.
Question: Is the accused liable for the death of B who was not even intended the victim?
Answer: YES because of aberratio ictus.
Question: If you are a fiscal, with what crime will you prosecute the offender?
Answer: Complex crime of homicide with attempted murder. It is a complex crime because the mere fact
of firing at A is a felony, although attempted. On the other hand, he committed homicide because he killed
B. The crime is complex under Article 48 because the crime of homicide and attempted murder came from
a single act, one grave and the other is less grave.
Now, take note that under the law, in order for the complex crime to exist, a single act must
constitute grave or less grave felonies or 2 less grave felonies or 2 grave felonies. So, under Article 48, two
grave felonies can be complexed with each other. Two less grave felonies can be complexed with each other
and grave and less grave can be complexed with each other.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
183
Answer: There is no mention. Therefore, a light felony can be complexed wit a grave or less grave felony.
A light felony cannot be complexed with another light felony. There is no such thing as a complex crime of
multiple slight physical injuries. Light felonies are not covered under Article 48.
Question: What happens if a single act produces a grave or less grave and a light felony?
Answer: There are two possibilities:
1.
2.
There are as many light felonies s there are victims. They are treated as different crimes. You
cannot complex them. They are to be prosecuted severally.
For example, I throw a stone at A, it hit him; but the same stone hit B. You cannot say that the
crime of slight physical injury committed against A absorbed the injury of B. He cannot be
prosecuted for double slight physical injuries because Article 48 does not apply to light
felonies. Conclusion: There are two separate felonies of light physical injuries.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
184
The error of the prosecution is in believing that when, for example, with one negligent act, you hit
2 people - killing one and causing slight physical injuries to another, the impression is that there are 2
crimes. Homicide and slight physical injuries. But actually, there is only one crime. That is the crime of
committing an imprudent act. The crime is reckless imprudence. How about the homicide? How about
the physical injuries? Those are only effects of the imprudent act, which is determinative of the penalty
and civil liability.
Article 48 applies when a single act results to two or more grave or less grave felonies. But here,
you cannot consider the homicide, the injury, as separate. Article 48 does not apply to culpable felonies.
But, there is only a single act, which produces one felony. Why? Homicide is a felony. A serious
physical injury is a felony. The felony is not the homicide or physical injuries. It is the reckless
imprudence. When you commit an imprudent act, the felony is the imprudent act. The imprudence and
reckless imprudence are the felonies. Homicide, serious or slight physical injuries, is only to determine
what is the penalty. The felony is not the homicide or the physical injuries. The felony is the imprudent act
because according to Article 3, a felony is an act or omission punishable by law. The homicide and the
physical injury will only determine the penalty. The error, said the SC, is because of the title given by fiscal
to the information - Homicide through Reckless Imprudence. It creates the impression that the homicide is
the crime. But actually, that is not the crime but only the effect of the felony.
VERANO vs. CA
115 SCRA 82
This reiterates the ruling in the Buan case. What is the felony? It is the imprudent act.
REODICA vs. CA
292SCRA887
A reiteration of the Lontok Case.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
185
ILLUSTRATION
-----------Compound Crimes
Complex Crimes (Art 48)
Formal or ideal Crimes---------Special Complex Crime
(Composite Crime)
delito complejo
delito complejo
----------Continuous Crime
delito continuado
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
186
But take note, one offense is committed as a necessary means to commit the other. The law does
not say one offense is committed as an indispensable means to commit another. So, the first offense is
necessary to commit the second but the first is not indispensable to commit the second. When you say
"indispensable", it means that without it, the second will not be committed.
Question: What happens if the first offense is indispensable to commit the second? Is there a complex
crime?
Answer: There is none. The second crime is the crime because the second crime committed is the real
crime.
Question: How about the first crime?
Answer: If it is indispensable, then it is only an element of the second crime. The first offense will be the
element of the second; it is absorbed. Without it, you cannot commit the second.
A good example of this is the so-called Absorption Doctrine or Doctrine of Absorption in the crime of
rebellion.
Question: Is the crime murder? Or trespass to dwelling? Because he had to enter the house first by
forcing himself in and once inside, he killed the person.
Answer: Actually, trespass to dwelling was not the primary intent. The primary intent was to kill. The
trespass was only incidental. It was the direct means effected to kill the victim. So, the crime there is
murder aggravated by unlawful entry. The forcible entry is not trespass to dwelling, but only the
aggravating circumstance.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
187
188
Ordinary complex crime is governed by Article 48. When two or more crimes are complexes under
Article 48, that is what is called the ordinary complex crime. Special complex crime is a crime under the
RPC declared as complex without applying the Article 48.
Example: The special complex crime of Robbery with Homicide under Article 294 of the RPC. When, by
reason or on the occasion of robbery, the crime of homicide shall have been committed. I robbed
somebody, after taking his money, I killed him. If you apply Article 48, there seems to be something wrong.
You cannot say that there is a single act. It is very clear that there are two acts. Taking his property and
killing him are 2 acts. You cannot even say that one is necessary to commit the other.
Question: Can you kill without robbing?
Answer: YES, you can kill without robbing. And you can rob without killing. But just the same you
cannot do anything because Article 294 says so. Robbery with Homicide is a special complex crime.
Another example of special complex crime is Article 335: Rape with Homicide. You raped a girl
and after raping her, you killed her. That is rape with homicide - a special complex crime.
Continuous Crime
The third type of formal or ideal plurality is the concept of continuous crime or the so-called
DELITO CONTINUADO. It is supposed to be a crime, which consists of a series of acts but all coming or
emanating from one criminal resolution. There is only one criminal resolution, and it is followed by a
series of acts.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
189
190
held that a contrary rule would violate the conditional guaranty against putting a man in jeopardy twice of
the same offense.
Another court observed that the doctrine of a Single Larceny rules that since a separate charge
could be filed for each act, the accused may be sentenced for the penalty for rest of his life.
The Supreme Court said that the 32 amended informations aver the offenses were committed on
the same period of time that is, on or about October 17, 1988. The strong probability even exists that the
approval of the application for the legalization of the stay of the 32 aliens was done by a single stroke of the
pen as when the approval was embodied in the same document. One document, covering the 32 aliens,
carried only one signature.
However, for example, I am the cashier of a corporation. Today, I ran away with the money. One
week from now, I will spend again the money. And after one week, nothing is left. That is not continuado.
The intent to defraud today is different from the intent to defraud next week. What results is a real
plurality. There are as many crimes as there are as many left.
For example, kidnapping. You are kidnapped in Davao and then brought to Cotabato.
The issue there is where the case is to be prosecuted. The issue in delito continuado is how many
crimes are committed. So, it is a different kind of continuing crime. That is why in order to avoid the
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
191
confusion, in Criminal Procedure the term is rather called TRANSITORY CRIME, where the elements occur
in two or more different places. And in order to confuse it with Criminal Procedure, the issue here is there
is only one criminal impulse resulting in two or more acts.
So, to properly answer the proceeding Question: Initially, you should say that they are the same.
One is in Spanish, and the other is in English. However, you should, if what is meant by continuing crime
is a transitory crime under the rule in Criminal Procedure, then this is the difference. In delito continuado,
the issue is to determine how many crimes are committed, and whether there are two or more penalties; whereas in
transitory crime, the issue here is to determine in what court should the person be prosecuted. Because continuing
crime could mean a crime committed where the essential ingredients took place in more than one place; or as delito
continuado.
ARTICLE 49. Penalty to be imposed upon the principals when the crime committed is different
from that intended. In cases in which the felony committed is different from that which the offender
intended to commit, the following rules shall be observed:
1. If the penalty prescribed for the felony committed be higher than that corresponding to the
offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed
in its maximum period.
2. If the penalty prescribed for the felony committed be lowered than that corresponding to the
one which the accused intended to commit, the penalty for the former shall be imposed in its maximum
period.
The rule established by the next preceding paragraph shall not be applicable if the acts
committed by the guilty person shall also constitute an attempt or frustration of another crime, if the
law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for
the attempted or the frustrated crime shall be imposed in its maximum period.
Question: What is the penalty for the felony committed if it is different from the felony intended?
Answer: According to Article 49, if the penalty for felony committed is higher than the felony intended,
then the penalty should be based on the felony intended but it has to be in its maximum period. On the
other hand, if the penalty for the felony committed turns out to be lower than the penalty for the felony
intended, then the penalty should be based on the felony committed, the same to be imposed in its
maximum period.
However, since the law speaks of felony committed and felony intended, then obviously it refers to
Article 4(1), because that is the only provision in the Revised Penal Code which uses those phrases "felony
committed" and "felony intended". Under Article 4(1), a person incurs criminal liability if he commits a
felony although the wrongful act done is different from that which he intended. In other words, the
question refers to that provision. And there are three situations contemplated here:
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
192
1.
2.
3.
Praeter intentionem
The accused intended only to commit a crime of slight physical injuries punishable by arresto
menor, but the victim died. So, the felony committed is homicide punishable by reclusion temporal.
Question: For What crime should he be prosecuted? If we apply Article 49, he should be prosecuted for
homicide because the penalty is higher. But once he is found guilty, the penalty should be arresto menor,
only to be imposed in its maximum period. This is a crazy answer. Why will a person be sentenced to
homicide and penalized for slight physical injuries? So, it will arrive at an absurd conclusion by applying
Article 49.
Answer: The correct answer is: he should be prosecuted for homicide and if found guilty, we should
impose the penalty for homicide, which is reclusion temporal. However, we will give him the mitigating
circumstance that he did not intended to commit so grave a wrong as that committed.
Article49 does NOT apply to praeter intentionem, otherwise, an absurdity will result.
Aberratio Ictus
The accused, with intent to kill A, fired his gun towards A but because of his poor aim; he did not
hit A, but instead killed B.
Question: Is he liable for killing B, although the latter is not intended victim?
Answer: YES
This is the exact opposite of Article 49, where the impossible penalty is based on the lower penalty,
which should be maximized. Under Article 48, it should be based on the higher penalty to be maximized.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
193
Article 49 does NOT apply to abberatio ictus because it will conflict with Article 48.
Error in Personae
The accused, with intent to murder A, waits for him in the dark. The felony intended murder of A.
So, he approached the intended victim from behind without giving the latter a chance to defend himself
and stabbed him to death. But it turned out it is not A, but a stranger B.
Question: Is he liable for the death of B?
Answer: YES. The crime he committed is murder. So, the intended felony is murder of A, but the actual
felony committed is murder of B.
Now, we say the penalty for the crime intended is higher. Both are murder. Whether it is a murder
of A or a murder of B, it is still murder. You do not say the penalty for the murder is higher than the
penalty for that murder. So, there is no effect. You cannot say that the murder of a carries a higher penalty
than the murder of B, they are still the same.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
194
That illustrates Article 49, paragraph 2. If the penalty prescribed for the felony committed is lower than
the corresponding to the one, which the accused intended to commit, the penalty for the former shall be imposed in its
maximum period.
Suppose we reverse the previous problem. I attacked a stranger and killed him. But when I looked
at him, it was not a stranger but my father. So, the felony intended is homicide, but the felony committed is
parricide.
ARTICLE 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next
lower in degree than that prescribed by law for the consummated felony shall be imposed upon the
principal in a frustrated felony.
ARTICLE 51. Penalty to be imposed upon principals of attempted crimes. A penalty lower by
two degrees than that prescribed by law for the consummated shall be imposed upon the principals in
an attempt to commit felony.
ARTICLE 52. Penalty to be imposed upon accomplices in consummated crime. The penalty next
lower in degree than that prescribed by law for the consummated shall be imposed upon the
accomplices in the commission of a consummated felony.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
195
ARTICLE 54. Penalty imposed upon accomplices in a frustrated crime. The penalty next lower in
degree than prescribed by law for the frustrated felony shall be imposed upon the accomplices in the
commission of a frustrated felony.
ARTICLE 55. Penalty to be imposed upon accessories of a frustrated crime. The penalty lower by
two degrees than that prescribed by law for the frustrated felony shall be imposed upon the accessories
to the commission of a frustrated felony.
ARTICLE 56. Penalty to be imposed upon accomplices in an attempted crime. The penalty next
lower in degree than that prescribed by law for an attempt to commit a felony shall be imposed upon
the accomplices in an attempt to commit the felony.
ARTICLE 57. Penalty to be imposed upon accessories of an attempted crime. The penalty lower
by two degrees than that prescribed by law for the attempted felony shall be imposed upon the
accessories to the attempt to commit a felony.
ARTICLE 71. Graduated scales. In the case in which the law prescribed a penalty lower or
higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be
observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in which is comprised the
given penalty.
The courts in applying such lower or higher penalty shall observe the following graduated
scales.
SCALE NO. 1
1. Death
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional
6. Arresto Mayor
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
196
7. Destierro
8. Arresto Menor
9. Public Censure
10. Fine
SCALE NO. 2
1. Perpetual absolute disqualification
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be voted for, the right to follow a
professional calling
4. Public Censure
5. Fine
ARITICLE 60. Exception to the rules established in Articles 50-57. The provisions contained in Articles
50-57, inclusive of this Code shall not be applicable to cases in which the law expressly prescribes the
penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories.
Principal
Accomplice
Accessories
CONSUMATED
0
1
2
FRUSTRATED
1
2
3
ATTEMPTED
2
3
4
Question: Reclusion temporal is the penalty for homicide against whom, the principal, the accomplice or
the accessory?
Answer: According to Article 46, when the Penal Code prescribes a penalty, it is understood as referring to
the penalty for the principal.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
197
Question: What is the penalty for accomplice and the accessories in a consummated homicide?
Answer: That is where Articles 50 to 57 will come in the above graph is a summary of the entire Articles to
50 to 57. Your starting point is Zero. (Article 46)
Question: If reclusion temporal is the penalty for the principal in a consummated homicide, what is the
penalty for the principal if the homicide is frustrated?
Answer: It is supposed to be 1 degree lower from the principal in a consummated homicide.
Question: Suppose the homicide is only attempted, what is the penalty for the principal?
Answer: Two degrees lower than the principal in the consummated homicide. So, the penalty should be
within the range of prision correccional. The same answer for the penalty for the accomplice in a frustrated
homicide, and the penalty for the accessory in a consummated homicide. So all three are 2 degrees lower.
This is, therefore, the manner of determining the penalty for attempted, frustrated felony and
accomplices and accessory.
But Article 60 says the penalty for the accomplice or for the accessory, or the frustrated or
attempted felony (under Articles 50-57) should not apply where the Penal Code provides a separate
exception. Because there are instances when the penalty for the accomplice and the party for the principal
is the same.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
198
ARTICLE 268. RPC. Slight Illegal Detention - The penalty of reclusion temporal shall be imposed upon
any private individual who shall commit the crimes described in Article 267 without the attendance of
any of the circumstances enumerated therein. The same penalty shall be incurred by anyone who shall
furnish the place for the perpetration of the crime. xxx
SITUATION. If I detain somebody, I am the principal. But I use your house and you allowed it, you are an
accomplice. Under article 268, the penalty for you and the penalty for are the same. It should not be one
degree lower for you. So, this is an exception. There is no distinction between an accomplice and a
principal. The principal and accomplice fall under the same liability. That is the application of Article 60.
ARTICLE 346. RPC. Liability of ascendants, guardians, teachers, or other persons entrusted with the
custody of the offended party. The ascendants, guardians, curators, teachers and any person who, by
abuse of authority or confidential relationship, shall cooperate as accomplice in the perpetration of the
crime embraced in Chapter Second, Third and Fourth of this Title, shall be punished as principals. Xxxx
The Crime here is against chastity, which may either, be rape, acts of lasciviousness, seduction
corruption of minors, and abduction.
PROBLEM: A woman is raped. The accomplices of the rapist are parents or guardians. According to
Article 346, the penalty for the rapist and the penalty for the accomplices are the same.
ARTICLE 121. RPC. Flight to enemy's country. The penalty of arresto mayor shall be inflicted
upon any person who owing allegiance to the Government, attempts to flee or o to an enemy country
when prohibited by competent authority.
PROBLEM: So, if you go to the enemy country when you are not supposed to go there because there is
was, when you come back, you can be prosecuted.
Question: Suppose you are attempting yet (meaning you have not yet left), but you were already caught,
what is the penalty?
Answer: Still the same, as if you have already gone there because the mere attempt to flee is the same s
consummated. So, this is another example when the penalty for the attempt or the consummation is the
same.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
199
ARITCLE 76. Legal period of duration of divisible penalties. The legal period of duration of divisible
penalties shall be considered as divided into three parts, forming three periods, the minimum, the
medium, and the maximum in the manner shown in the following table:
PENALTIES
Reclusion temporal
ENTIRE
DURATION
From 12 years and
1 day to 20 years
MINIMUM
MEDIUM
MAXIMUM
From 14 years, 8
months and 1 day
to 17 years and 4
months
From 8 years and 1
day to 10 years
From 17 years, 4
months and 1 day
to 20 years
From 2 years, 4
months and 1 day
to 4 years and 2
months
From 2 months and
1 day to 4 months
From 11 to 20 days
From 4 years, 2
months and 1 day
to 6 years
Prision mayor
absolute
disqualification and
special temporary
disqualification
Prision correccional
suspension and
destierro
Arresto mayor
From 1 to 2 months
Arresto menor
From 1 to 10 days
COMPUTATIONS
Reclusion temporal - duration is 2 years, 1 day to 20 years
But reclusion temporal has three periods - minimum, medium, maximum. To know the duration,
you have to know Article 76.
12y 1d to 14y 8m
12y 8m 1d to 17y 4m
17y 4m 1d to 20y
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
200
Formula
a.
b.
Since there are three parts, divide 8y by 3. It is difficult to divide, so first, convert some years to
months. Hence, 8y-2y = 6y, 24m(2y)
Then divide 6y24m by 3
c.
Start with 12y and add 1d (but in the computation, do not add 1d), then add 2y and 8m
Therefore
12y
1d
2y
8m
14y & 8m
d.
14y
8m
2y
8m
16y & 16m or 17y 4m
e.
17y
2y
19y
6y1d to 8y
8y1d to 10y
10y1d to 12y
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
201
12y-6y = 6y
6y/3y = 2y (duration of each period)
thus:
6y1d to 8y (minimum)
8y1d to 10y (medium)
10y1d to 12y (maximum)
6y - 6m (but you cannot subtract without converting first the 6y into months)
6y =
b.
5y12m
- 6m
5y 6m (duration of entire of prision correccional)
c.
6m1d to 2y4m
2y4m1d to 4y2m
4y2m1d to 6y
3y 30m
by 10m (duration f each period)
Compute
6m
by 10m
by 16m or 2y 4m
+ 1y 10m
3y 14m or 4y 2m
+ 1y 10m
4y 24m or 6y
Thus
Minimum
Medium
Maximum
6m1d to 2y4m
2y4m1d to 4y2m
4y2m1d to 6y
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
202
1m to 2m
2m1d to 4m
4m1d to 6m
6m-1m = 5m or 3m60d
1m
1m20d
2m20d
1m20d
3m40d or
minimum
1m1d to 2m 20d
4m 10d medium
1m 20d
5m 30d maximum
2m21d to 4m10d
4m 1d to 6m
Therefore, if we apply the formula, it will not be with what is provided ender Article 76
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
203
For example, the duration of reclusion temporal 2 years and 1 day to 20 years. Now, the formula to
subtract the minimum from the maximum disregarding the 1 day difference 20 years - 12 years = 8years.
That is the entire duration of the penalty of reclusion temporal. Next is to determine the duration
of its period. Since there are three periods, then we have to divide 8 years into three parts. Now, of course,
dividing 8 years into three parts would be rather difficult. The best thing to do is to convert the years into
months. So that will be quite easier. So, let's reduce this 6 years because it is easier to divide 6 years by 3.
Now, let's convert the 2 years into months 24months 6 years and 24 months, that is already divisible by 3.
That would be the duration or each period of reclusion temporal. So let's start with the minimum.
Of course, you already know the minimum of 12years and 1day. Then you add the 1day in our formula, we
disregard it. It is now 12 years +2 years and 8 months = 14years and 4 months
The medium period starts from 14 years, 8 months and 1 day + 2 years and 8 months = 16 years, 16
months and 1 day. So we have transpose 12 months there to make that 17 years. You subtract 12 months. It
becomes 4 months. It shall be 17 years and 4 months.
Now, the maximum starts from 17 years, 4 months and 1 day, then you add again the same 2 years
and 8 months. 17 years, 4 months and 1 day + 2 years and 8 months = 19 years, 12 months or exactly 20
years.
Now, you find out if your answer corresponds to the duration of the penalty. Minimum of the
minimum is 12 years and 1 day. The maximum of the maximum is 20 years. That is supposed to be the
duration of the entire penalty. If you look at the table in Article 76. The answer is the same.
The only penalty where our formula will not work is the penalty of arresto mayor. It will not tally.
Let's try to demonstrate. Well, of course, arresto mayor has duration of 1 month and 1 day to 6 months. If
you will look at Article 76, the official partitioning of arresto mayor, it says there the minimum starts 1
month and 1 day to 2 months, the medium is 2 months and 1 day to 4 months and the maximum is 4
months and 1 day to 6 months. We will apply our formula and try to find out whether our answer will be
the same.
6 months maximum - 1 month minimum = 5 months. So, arresto mayor has duration of 5 months
divided by 3. To make it easier, we will reduce this to 3 months and the 2 months to days. So 60 days, 3
months and 60 days divided by 3. 1 month and 20 days. That is supposed to be the duration. So, we will
start.
The starting point is 1 month and 1 day. 1 month + 1 month and 20 days = 2 months and 20 days.
The medium is supposed to start from 2 months and 21 days + month and 20 days = 3 months and 40 days.
Transpose 30 days equals 4 months. 40 days - 30 days = 10 days. The medium is supposed to end at 4
months and 10 days. The maximum is supposed to commence from 4 months and 11 days + 1 month and
20 days. 5 months and 30 days or exactly 6months.
Now, you compare that with what Article 76. They do not tally. This is what Article 76 says. This
is what the formula says. Now, conclusion the formula in the Penal Code is mathematically wrong, or
inaccurate. But at any rate, that is the answer.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
204
ARTICLE 61. Rules for graduating penalties. For the purpose of graduating the penalties which,
according to the provisions of Articles 50 to 57, inclusive, of this Code are to be imposed upon persons
guilty as principles of any frustrated or attempted felony, or as accomplices or accessories, the following
rules shall be observed:
1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower
in degrees shall be that immediately following that indivisible penalty in the respective graduated scale
prescribed in Article 71 of this Code.
2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of
one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall
be that immediately following the lesser of the penalties prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is composed of one or two indivisible penalties
and the maximum period of another divisible penalty, the penalty next lower in degree shall be
composed of the medium and minimum periods of the proper divisible penalty and the maximum
periods of the proper divisible penalty and the maximum period of that immediately following in said
respective graduated scale.
4. When the penalty prescribed for the crime is composed of several periods, corresponding to
different divisible penalties, the penalty next lower in degree shall be composed of the period
immediately following the minimum prescribed and of the two next following, which shall be taken
from the penalty prescribed, if possible; otherwise from the penalty immediately following in the
above mentioned respective graduated scale.
When the law prescribes a penalty for a crime in some manner not especially provided for in
the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon
those guilty as principals of the frustrated felony or attempt to commit the same, and upon accomplices
and accessories.
Sometimes it is easy because you just follow Article 71. What follows temporal? Prision Mayor.
What follows Prision Mayor? Prision Correccional. But sometimes, it might be difficult to determine the
graduation if the penalty is something different. So, Article 61 is the continuation of Article 50-57.
1.
When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that
immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 for this
Code.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
205
Suppose the penalty for the crime is death, which is mandatory. Single, it is indivisible. One degree
lower is perpetua; another degree lower is temporal. The same thing with reclusion perpetua. This is just
easy.
2.
When the penalty prescribed for the crime is compound of two indivisible penalties, or of one or more divisible
penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following
the lesser of the penalties prescribed in the respective graduated scale.
There is only one example. Reclusion perpetua to death. In the light of People vs. Roxas, perpetua is
still indivisible penalty. That is the penalty for murder. That is the penalty for homicide, parricide. That is
the penalty for robbery with homicide.
Now, supposed I am only an accomplice where the penalty is 1 degree lower. What is 1 degree lower?
According to Article 61(2), the penalty, which follows the lesser of the two. Now, which is the lesser of the
two? Perpetua. What follows perpetua? Reclusion temporal. So, the penalty for an accomplice is reclusion
temporal.
Question: What is the penalty for the accessories?
Answer: What follows reclusion temporal? Prision mayor. That's Rule #2 or when the penalty is
composed of one or more divisible penalties. The penalty is composed of 2 divisibles for example when the
penalty of the crime is prision mayor to reclusion temporal. It is the entire range of 6 years and 1 day to 20
years. That's the entire duration. Two divisibles combined.
Now, what is the penalty for the accomplice? One degree lower. What is one degree lower? The
penalty which follows the lesser of the two Prision Mayor. So the penalty which follows prision mayor is
one degree lower. So, it's prision correccional followed by arresto mayor.
3.
When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum
period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and
maximum periods of the proper divisible penalty and the maximum period of the proper divisible penalty and the
maximum period of that immediately following in said respective graduated scale.
There is only one example that you can give there - reclusion temporal maximum to death, because
death is indivisible. Reclusion perpetua is indivisible followed by reclusion temporal maximum, which is
supposed to be divisible.
So, that is the rule. The trouble is you cannot use it because under the Penal Code, there is only one
crime, which carries that penalty - murder. But the trouble is the Heinous Crime Law changed the penalty
of murder to reclusion perpetua to death. So, there is no crime in the Penal Code now which carries this
kind of penalty.
4. When the penalty provided for the crime is composed of several periods, corresponding to different divisible
penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
206
prescribed and of the two next following which shall be taken from the penalty prescribed, if possible; otherwise from
the penalty immediately following in the above mentioned respective graduated scale.
Reclusion temporal, how many periods? Three maximum, medium, minimum. What follows?
Prision Mayor, maximum, medium, minimum. When the penalty prescribed of a crime is composed of
several periods, corresponding to different divisible penalties, for example, the penalty for a crime is
prision mayor maximum to reclusion temporal medium. How many periods? Three. The problem is that
2/3 belongs to reclusion temporal, while 1/3 belongs to prision mayor. So, two parts belong to reclusion
temporal, 1 part belongs to prision mayor.
What is one degree lower than that? The law says the penalty lower in degree shall be composed of
the period immediately following the minimum prescribed and of the two next following. What follows
prision mayor? Prision correccional. What follows now is the minimum period, which follows the
maximum. So, medium plus the next two. That is the penalty for the accomplice. Follow the same pattern
for the penalty for an accessory.
5. When the law prescribes a penalty for a crime in same manner not especially provided for in the four preceding
rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the
frustrated felony or of attempt to commit the same and upon accomplices and accessories.
When the penalty for a crime is not among those mentioned in #'s 1 to 4 example the penalty for
the crime is reclusion temporal medium to maximum, that is the range of 14 years, 8 months and 1 day to
20 years, and there are only two periods. What is one degree lower? By analogy, that of 1 degree lower is
prision mayor maximum to reclusion temporal minimum. What is two degree lower? Prision mayor
minimum to prision medium. What is 3 degree lower? Prision correccional medium to prision
correccional maximum. So, by analogy, that is how you graduated penalties according to article 61.
ILLUSTRATION. Suppose the penalty prescribed of a crime is reclusion temporal maximum and there
are many crimes in the Penal Code with that kind of penalty. You apply only one, reclusion temporal
maximum. So, the penalty is presently ranging from 17 years, 4 months and 1 day to 20 years.
What is the degree lower? By analogy, reclusion temporal medium is already 1 degree lower. Not
only period, it is 1 degree lower by itself. Reclusion temporal minimum is considered degree lower. So,
two degrees already, by analogy.
And of course what do you call that penalty? Reclusion temporal maximum. That is divisible
penalty because it has fixed duration. And being divisible, it has its own minimum, medium, maximum
for the purpose of mitigating and aggravating circumstances.
ARTICLE 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual
delinquency. Mitigating or aggravating circumstances and habitual delinquency shall be taken into
account for the purpose of diminishing or increasing the penalty in conformity with the following
rules:
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
207
1.
Aggravating circumstances, which in themselves constitute a crime especially punishable
by law or which are included by the law in defining a crime and prescribing the penalty therefore shall
not be taken into account for the purpose of increasing the penalty.
2.
The same rule shall not be taken into account for any aggravating circumstance inherent in
the crime to such a degree that it must of necessity accompany the commission thereof.
3.
Aggravating or mitigating circumstances which arise from the moral attributes of the
offender, or from his private relations with the offended party, or from any other personal cause, shall
not only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to
whom such circumstances are attendant.
4.
The circumstances which consist in the material execution of the act, or in the means
employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who
had knowledge of them at the time of the execution of the act or their cooperation therein.
5.
a) Upon a third conviction the culprit shall be sentenced to the penalty provided by
the law for the last crime of which he be found guilty and to the additional penalty of prision
correccional in its medium and maximum periods.
b) Upon a forth conviction, the culprit shall be sentenced to the penalty provided for
the last crime of which he be found guilty and to the additional penalty of prision mayor in its
minimum and medium periods; and
c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty
provided for the last crime of which he is found guilty and to the additional penalty of prision mayor in
its maximum period to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two penalties to be imposed
upon the offender, in conformity herewith shall in no case exceed 30 years.
For the purpose of this article, a person shall be deemed to be habitual delinquent, is within a
period often years from the date of his release or last conviction of the crimes of serious or less serious
physical injuries, robo, hurto, estafa or falsification, he is found guilty of any said crimes a third time or
oftener.
Aggravating circumstances have the effect of increasing the penalty. They have to be taken into
account the purpose of increasing the penalty. However, Article 62 says in the following cases the aggravating
circumstance is not taken into account anymore. Meaning, the aggravating circumstances will not affect the
penalty anymore and there are three, based on this Article.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
208
Example: A and B commit the crime together. A acted with evident premeditation B did not. Under the
rules on evident premeditation, it only affects A and not B. Or, A and B commit a crime together. B acted
with passion or obfuscation. A did not. B will be the only one credited with the mitigating circumstances,
not A. Or, those which arise from the public relations of the parties. A conspired with B to rob the father
of A. So, A conspired with a stranger to rob his own father. Now, relationship is a mitigating circumstance
to A, but it will not favor B because B is not related to the victim.
Or those which are personal to the offender. For Example: I will conspire with a 17-year old minor to
commit a crime. Minority will favor him but will not favor me because I am not a minor. Or, I will conspire
with A to commit a crime. I am a recidivist. He is a first offender. Recidivism will affect me but does not
affect him.
So when it comes to these circumstances, they will only affect the person concerned. Does this not
violate the rule on conspiracy, that the act of one is the act of all? It does not. When the law says it in
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
209
conspiracy it simply means that we are all liable but the law does not say that in conspiracy your mitigating
is also my mitigating or my aggravating is also your aggravating.
The circumstances which consist in the material execution of the act, or in the means employed to
accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge
of them at the time of the execution of the act or their cooperation therein.
Question: How about circumstances, which refer to the manner which the crime, are committed or the
ways and means employed to commit the crime?
Answer: It will affect the person who employed the ways and means and the accused that have knowledge
of it.
Example: I will hire a killer to murder X, paying the former P100, 000. I will leave to him the manner of
killing X. He used treachery to kill the victim. Now, will treachery affect me because I m the one ordered
him to kill but I have no idea of how he will do it. Now, under Rule #4, treachery will affect the killer, but it
will not affect me because I have no knowledge.
But suppose I will say you kill that guy but tell me exactly how you will do it. I will have to approve your
method. So, I have the knowledge of the manner the crime is to be committed. Under #4, this affects my
liability. Even it did not employ treachery; I will still be affected because I have the knowledge as to the
ways and means employed.
Habitual Delinquency
This is the third instance of criminal repetition. The first two were recidivism and reiteration or
individuality. A person is habitual delinquent if within a period of ten years from the date of his release or
last conviction of the crime of serious or less serious physical injuries, robo, hurto, estafa, or falsification, he
is found guilty of any of said crimes a third time oftener.
Elements:
1. there must be a third conviction;
2. the crime committed by the offender for the 3 rd, 4th, or 5th times should be among those mentioned in
Article 62, like serious physical injuries, less serious physical injuries, theft, robbery, estafa an
falsification;
3. there must be a time gap of not more than ten years between convictions.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
210
Questions: When will you compute? What is the starting point in computing the period?
Answer: The law says either from the date of final conviction or last release, because if you count it only from
the last conviction, it will be more than ten years, but it still within ten years from release.
Question: What is the cut-off point of the period? Is it the conviction or is it the commission of the offense
for the 2nd time?
For example, it is now my 3 rd time to commit theft or robbery or estafa or falsification or serious
physical injuries. It is my 3rd time within 10 years, so today is exactly the 10th year, but definitely, I will be
found guilty not today. It will take time. So, if you will look at the date when I will be convicted, it will
definitely be beyond 10 years.
You commit the same crime and you are convicted for the 5 th or 6th time. For every commission, the
penalty should now range from prision mayor maximum to reclusion temporal minimum, a possible 10
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
211
years and 8 months. So you will notice that the additional penalty given is higher by 1,000 or 2,000 times
than the principal penalty.
HABITUAL DELIQUENCY
But to be a habitual delinquent, the crimes are
more specific. These are all limited to those
mentioned in Article 62.
There must at least a third conviction.
The time gap between the previous conviction
and present should not be more than 10 years.
This cause for the imposition of a separate and
distinct additional penalty.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
212
Issue: May the court admit evidence to prove habitual delinquency if the same was not alleged in the
information and the evidence is previously objected to by the defense?
Held: In a previous ruling, that of People vs. Partinada, the Court ruled that if recidivism is not alleged in
the information, and it was vigorously objected to by the defense, the prosecution should not be allowed to
prove it because it must be alleged in the information.
Recidivism and habitual delinquency are almost the same. They belong to the same family. There
is no reason why the ruling in Partinada will not apply. Hence, the trial court was correct in excluding the
prosecutions evidence with respect to the aggravating circumstance of recidivism and habitual
delinquency, because these were not alleged in the information and the presentation was objected to
vigorously by the defense counsel.
While it is true that to prove recidivism, it is necessary to prove the charge in the information and
to attach thereto certified copies of the sentences rendered against the accused, such aggravating
circumstance may still be given credit thereto by the trial court if the accused does not object to the
presentation of evidence.
It is written that this pronouncement applies specifically to recidivism. But we do not see any
reason why this cannot be applied by analogy to habitual delinquency, which is also a form of plurality of
crimes.
ARTICLE 63. Rules for the application of indivisible penalties. In all cases in which the law
prescribed a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstance that may have attended the commission of deed.
In all cases in which the law prescribed a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:
1. When the commission of the deed there is present only one aggravating circumstance, the
greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and there is no aggravating
circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied.
When both mitigating and aggravating circumstances attended the commission of the act, the
court shall reasonably allow them to offset one another in consideration of their number and
importance, for the purpose of applying the penalty in accordance with the preceding rules, according
to the result of such compensation.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
213
Question: What happens if a person is sentenced of a heinous crime, which carries a penalty of death
only? So, the penalty is single and indivisible, only one penalty. There are many crimes now heinous,
which prescribe the penalty of only death, mandatory.
Answer: It should be imposed by the court regardless of any mitigating or aggravating circumstance. So,
there is no more effect of mitigating.
Any ordinary mitigating circumstance can no longer lower it, even if you plea guilty. Even if you
surrender, the court will impose the death penalty. Of course, you cannot also increase it because it is the
highest. The same situation applies if the penalty of the crime is perpetua because it is still considered as
indivisible. It shall be imposed by the court regardless of any mitigating or aggravating circumstance.
Question: What happens if the crime carries reclusion perpetua to death? What is now the effect of
mitigating or aggravating?
Answer: It depends. If there is an aggravating circumstance, you impose the higher penalty, like death. If
there is a mitigating circumstance, and no aggravating circumstance, you impose lower of the two perpetua. If there are two mitigating and no aggravating, you still impose perpetua.
So, in other words, either the higher or the lower, upstairs or downstairs. But it shall not go lower.
The only way of lowering this to the penalty much lower in degree is by privilege mitigating circumstance.
Ordinary mitigating has no more effect.
This is the reason cited by the SC in the second lucas decision, because in the original decision, the
SC ruled that perpetua is already divisible penalty. But upon reconsideration by the SC en banc, it ruled
despite RA 7659, which says that perpetua has duration of 20 years and 1 day to 40 years, it remains an
indivisible penalty. Then the SC cited, as one of its reasons, Article 63, when the penalty for the crime is
composed of two indivisible and there is only one example, perpetua to death. Now, if you will say that
perpetua is divisible, then Article 63 becomes obsolete.
ARTICLE 64. Rules for the application of penalties, which contain three periods. In all cases in which
the penalties prescribed by the law contain three periods, whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a period in accordance with the
provision of Article 76 and 77, the court shall observe for the application of the penalty the following
rules, according to whether there are or are not mitigating or aggravating circumstance:
1. When there are neither aggravating nor mitigating circumstances, they shall impose the
penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of the act, they shall
impose the penalty in its minimum period.
3. When both mitigating and aggravating circumstance is present in the commission of the act,
they shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court shall reasonably
offset those of one class against the other according to their relative weight.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
214
5. When there are two or more mitigating circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances, the courts shall
not impose a greater penalty than that prescribed by law, in its maximum period.
When the limits of each period, the court shall determine the extent of the penalty according to
the number and nature of the aggravating and mitigating circumstances and the greater and lesser
extent of the civil produced by the crime.
Example: The crime is punishable by prision mayor minimum, medium, maximum period. No mitigating,
no aggravating. According to article 63, the penalty should be somewhere within the medium period. That
would be ranging from 8 years and 1 day to 10 years. If there is a mitigating, the penalty should be fixed
somewhere in the minimum period. On the other hand, if there is an aggravating, it should fixed within
the maximum period of prision mayor.
Just like that. It all depends on any mitigating or aggravating. Now, if you know them try to offset
them with each other. And after offsetting, try to find out if there is a balance in favor of either mitigating
or aggravating. If there is no balance, then you apply Rule #1. It should be within the medium.
When both mitigating and aggravating circumstances are present, the court shall reasonably offset those
of one class against the other according to their relative weight.
For example, Vhenigna Vangkbiyud was convicted of homicide. The trial court appreciated the
following modifying circumstance:
The imposable penalty for homicide is reclusion temporal, the range of which is 12 years and 1 day
to 20 years. Taking into account the attendant mitigating and aggravating circumstances and applying the
Indeterminate Sentence Law, determine the proper penalty to be imposed upon the accused.
You can fix the maximum. There is 1 aggravating. But the mitigating are many - 4. What is the
penalty? If we apply paragraph 4, 1 mitigating offset the aggravating. So there is a balance. And there is
still 3 mitigating left. The penalty should be lowered by one degree because according to paragraph 5,
when there are two or more mitigating circumstance, the court shall impose the penalty next lower that
prescribed by law. But this will not apply because the law says two or more mitigating and no aggravating
is present. So, when there is one aggravating, paragraph 5 will not apply.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
215
In other words, the correct penalty there is paragraph 2 - the penalty should be in the minimum
period. The condition laid down in paragraph 5 for the lowering of the penalty by 1 degree if there are 2 or
more mitigating circumstances without any aggravating is not present. The law is very clear.
So, for example, when the crime, punishable by reclusion temporal, was committed there was
voluntary surrender, passion or obfuscation, no aggravating circumstance is present, paragraph 5 should be
applied. The penalty should be lowered to prision mayor, 1 degree lower. However, since the problem
states that there is an aggravating circumstance of nocturnity, paragraph 5 can no longer apply. In other
words, the penalty should still remain within the range of reclusion temporal.
Now, suppose it is the other way around. There are 2 or more aggravating without any mitigating.
Should the penalty be increased by 1 degree? No, because of paragraph 5. No matter how many
aggravating circumstances are present, you cannot increase the penalty by 1 degree higher. The complete
definition of aggravating circumstance is, if present in the commission of the crime, will call for the
imposition of the maximum penalty without exceeding the penalty prescribed by law.
Question: What happens of the penalty should be within the medium period of prision mayor - 6 years
and 1 day to 10 years?
Answer: According to paragraph 6, the court should sentence the accused to a specific penalty stating the
exact number of years, months and day within that range. Therefore, I can sentence him to 6 years and 1
day. That is the least I can sentence him to 10 years, or any combination within. So, practically there are
700 possibilities.
The SC has once said that the court should be careful in fixing penalties because any error may
have varied consequences, like in a case where the prison term imposed upon the accused has been
increased erroneously, to unduly prolong the confinement of the accused even for just one day is unjust in
every sense of the word.
Take note that in divisible penalty, there should be a minimum, medium and minimum for the
purpose of applying Article 64.
216
between reclusion perpetua and life imprisonment. That is why the provisions of the RPC on the penalties
will now apply to the Dangerous Drugs Act.
ARTICLE 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower
by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the same or to exempt from criminal
liability in the several cases mentioned in Article 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the period which may be deemed proper,
in view of the number and nature of the conditions of exemption present or lacking.
When you commit a crime and there is an incomplete justifying or incomplete exempting
circumstance, the penalty should be lowered by 1 or 2 degrees.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
217
Question: When will Article 13(1) apply, or when will Article 69 apply? When will incomplete justifying
or incomplete exempting be treated as privileged, when will it be treated as ordinary mitigating?
Answer: The clue is in Article 69. We apply Article 69 when the majority of the requisites are present.
Majority. So in self-defense, two out of three. So, incomplete self-defense becomes a privileged mitigating
circumstance.
ARTICLE 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a
minor under eighteen years and his case is one coming under the provision of the paragraph next to the
last of Article 80 of this Code, the following rules shall be observed:
Upon a person under fifteen but over nine years of age, who is not exempted from liability by
reason of the court having declared that he acted with discernment, a discretionary penalty shall be
imposed, but always lower by two degrees at lest than that prescribed by law for the crime which he
committed.
Upon a person over fifteen and under eighteen years of age the penalty next lower than that
prescribed by law shall be imposed, but always in the proper period.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
218
Suppose, the judge will say I will not give you to degrees lower because you are incorrigible.
Question: Is the judge correct?
Answer: The judge is wrong. The fact that the minor is incorrigible is not a ground to deny him of the
benefit of Article 68. Being incorrigible is only a ground to nullify the suspension of the sentence.
If he is incorrigible in the rehabilitation center, it is not a ground to deny him of the benefit of
Article 68.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
219
ARTICLE 70. Successive service of sentence. When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the
following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be followed so that they
may be executed successively or as nearly as may be possible, should a pardon have been granted, as to
the penalty or penalties first imposed, or should they have been served out.
For the purpose of applying the provisions of the next preceding paragraph the respective
severity of the penalties shall be determined in accordance with the following scale:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
profession
Death,
Reclusion Perpetua,
Reclusion Temporal,
Prision Mayor,
Prision Correccional,
Arresto Mayor,
Arresto Menor,
Destierro,
Perpetual Absolute Disqualification,
Temporal Absolute Disqualification,
Suspension from public office, the right to vote and be voted for, the right to follow a
or calling, and
12. Public Censure.
Notwithstanding the provisions of the rule next preceding, the maximum duration of the
convict's sentence shall not be more than three-fold the length of time corresponding to the most severe
of the penalties imposed upon him. Ho other penalty to which he may be liable shall be inflicted after
the sum total of those imposed equals the same maximum period.
Such maximum period shall in no case exceed forty years. In applying the provision of this rule
the duration of perpetual penalties (pena perpetua) shall be computed at thirty years.
If allowed, they should be served simultaneously. If not possible or there nature will not allow it,
then serve them successively. Meaning, one after the other.
220
But there are penalties, which you cannot serve simultaneously because their nature will not allow
it. For example, for one penalty, you are sentenced to 2 years of prision correccional. For another penalty,
you are sentenced for 2 years of destierro. How can you be outside the jail and at the same time within the
jail? So, it is not allowed.
Or, if all of them are of the same nature, all imprisonment. Alrightfor this crime 6 years of
prision correccional, this one 4 years, another one 1 year, then the 6 months of arresto mayor, 40 days of
arresto menor. They are all the same however, you cannot say that tomorrow, I will serve the prision
correccional, the other day I served arresto menor, etc you cannot do that.
Meaning, after you are in jail for one day, you re only for one day for one penalty. So, these are the
instances where the penalties would not be served simultaneously. So, what will happen? You serve them
successively, one after the other.
Severity
For example, "Miss Vhenigna Vangkhiyud, you are sentenced to death. Another crime, you are
sentenced to 20 years of reclusion temporal. Still another crime, you are sentenced to 5 days of arresto
menor.
Question: Now, what happen to the reclusion temporal, to the arresto menor?
Answer: Never mind you are already dead! It is not the other way around. You start from the most severe
going down. So, that is the order of service.
However, this is subject to the three-fold rule. According to the rule, the maximum stay in jail for a
person should not exceed the most severe multiplied by 3.
For example, for one offense, you are sentence to 1 year of prision correccional. Another offense, 6
months of arresto mayor, another offense 5 months. And then for another offense, you are sentenced to 8
months. Another crime 8 months, another crime 5 months, and still another crime 5 months.
Now, if we are to let him serve the sentence one after the other, what is the total? Four years and
two months. So, that is you penalty if you will serve them one by one. But if you look at the most serious,
you multiply that by 3, so shorter by 1 year and 2 months. Under the three-fold rule, after serving three
years, you should be released.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
221
For example, a penalty of one year for a crime, another crime is 6 months; another crime is 2
months, 3 months and 1 month. Adding these all up totals two years. So, if you will apply the three-fold
rule, six years. If served one after the other, only two years. So, instead of shortening, you are prolonging.
That is an instance of misapplication of the three-fold rule.
Not, suppose a person was found guilty of five counts of murder. He was sentenced to 25 years of
reclusion perpetua for every murder. The total is 125 years. So, if we will apply the three-fold rule, it would
be shorter than 50 years. Now suppose he will survive. Will he be released, applying the three-fold rule?
No, because of the second to the last paragraph states, such maximum period shall in no case exceed 40 years.
Meaning, after 40 years, he should be released. What happens to the remaining years? Never mind it.
Under the RPC, there is no such thing as imprisonment for life. Because this article is automatic.
Even if I will sentence you for 100 times of reclusion perpetua, after 40 years you should be released
because of this provision. So, technically, under the RPC, there is no such thing as perpetual imprisonment,
except the perpetual disqualification, which, according to Article 41, will be for the rest of your life.
ARTICLE 41, RPC. Reclusion perpetua and reclusion temporal, their accessory penalties. The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for
life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall
have been expressly remitted in pardon.
That is why every country has its own system of penalties. Our System is different form other
Asian countries. There are 3 systems of penalties, which are recognized. One system is called
"MATERIAL ACCUMULATION SYSTEM." Meaning, if you commit 2 or more crimes and you are
sentenced to 2 or more penalties, you have to serve all of them, even if it goes beyond the rest of your life.
Literally, you will die in jail of old age. If you will not die after serving them all, you will be released. If
you will die earlier, it's ok. But that is practically saying there is no hope for you.
Another system is called "JUDICIAL ACCUMULATION SYSTEM. When you reach a certain
point, you should be released already.
The third system is the "ABSORPTION SYSTEM". You only serve the highest penalty. The minor
penalties are deemed absorbed by the service of the highest penalty.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
222
The accumulation system is evident in the first part of Article 70. That when the nature of
penalties will not allow a continuous service, he should serve them in the order of severity. He
should serve them simultaneously under the material accumulation system.
2.
The judicial accumulation system is manifested in the 2 nd part of the Article 70 - the three-fold
rule. That the maximum system should not exceed the most severe multiplied by 3 and in no
case should a person be confined for more than 40 years.
3.
The "absorption system" is manifested in Article 48 - the penalty for the complex crimes. The
penalty for the complex crimes is based on the higher offense to be imposed in the maximum
period.
ARTICLE 48, RPC. Penalty for complex crimes. When a single act constitutes two or more grave
or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same to be applied to its maximum period.
Let us compare the order of penalty with the graduation of penalty.
ARTICLE 71, RPC. Graduated Scales. In case in which the law prescribed a penalty lower or higher by
one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in
graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in which is comprised the
given penalty. The courts, in applying such lower or higher penalty, shall observe the following
graduated scales:
Scale No. 1
1.
2.
3.
4.
5.
6.
Death
Reclusion Perpetua
Reclusion Temporal
Prision Mayor
Prision Correccional
Arresto Mayor
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
223
7.
8.
9.
10.
Destierro
arresto Menor
Public Censure
Fine
Scale No. 2
1.
2.
3.
In Article 70, the sentence of penalties from Mayor down is Arresto Menor and Destierro. If you
will look at article 71, there are differences. It's in the reverse.
224
court sentenced him for 6 years of destierro, and for the third crime, he was sentenced to 5 day of arresto
menor.
Question: How will A serve these penalties? That is not graduation, but that is the succession of
sentences.
Answer: So, he has to serve first the penalty of 6 months of arresto mayor. After that, he has to serve 5
days of Arresto Menor. After that, he will now serve the penalty of destierro.
So, we will not apply Article 71 because what is asked is service of sentence. So, this answer
depends on what the question is.
Question: Now, why is that in Article 71, destierro is higher than arresto menor?
Answer: It is because destierro is a correccional penalty, while arresto menor is a light penalty. Obviously,
a correccional penalty ranks higher than a light penalty. Very simple.
Question: Why is it that Article 70, it is the reverse? Arresto Menor, which is a light penalty comes first
before destierro which is correccional penalty. Why?
Answer: Destierro is a correccional penalty and does not involve the imprisonment, but only banishment.
Our common sense will tell us that the penalty, which consists in the deprivation of freedom, is more
severe than a penalty, which is not confinement.
ARTICLE 66. Imposition of fines. In imposing fines, the courts may fix any amount within the
limits established by the law; fixing the amount in each case attention shall be given, not only to the
mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit.
Question: Are fines divisible into periods? Minimum, medium or maximum?
Answer: NO. Fines are not divisible into periods.
Question: Can they be graduated into degrees? 1 degree lower, 1 degree higher? How do they graduate
fine by degrees?
Answer: It is found in Article 75.
ARTICLE 75. RPC: Increasing or reducing the penalty of fine by one or more degrees. Whenever it may be
necessary to increase or reduce the penalty of fine by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-fourth of the maximum amount prescribed by law,
without however, changing the minimum.
The same rules shall be shall be observed with regard of fines that do not consist of a fixed
amount, but re made proportional.
ARTICLE 77. When the penalty is a complex one composed of three distinct penalties. In cases in which
the law prescribes a penalty composed of three distinct penalties, each one shall form period, the
lightest of them shall be the minimum the next the medium and the most severe the maximum period.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
225
Whenever the penalty prescribed does not have one of the forms specially provided for in this
Code, the periods shall be distributed applying by analogy the prescribed rules.
Question: Suppose, a person who committed treason is an alien, but residing in the Philippines. Under
Article 114, last paragraph, what is the penalty for that crime?
Answer: The penalty for a resident alien who commits treason is reclusion temporal to death. So, there are
3, but in one penalty. In effect there are 3 penalties.
Question: What do you mean by degree, and what do you mean by a period? What do you mean by a
degree under the law on penalty and what do you mean by a period? When is a period considered a
degree and when is a degree considered a period?
Answer: A degree is a given penalty. It is the penalty prescribed by law for the offense. Like for example,
reclusion temporal. That is one degree. Prision mayor, that is another degree. Prision correccional,
another degree.
226
Whenever the penalty prescribed does not have one of the forms specially provided for in this
Code, the periods shall be distributed applying by analogy the prescribed rules.
So, reclusion temporal is a degree, reclusion temporal maximum is a period. Reclusion temporal
medium is another period.
Question: When is a period treated a degree? And when is degree treated as a period? For example, a
Crime punishable by reclusion temporal in its maximum period.
Answer: For that crime, reclusion temporal maximum is not a period, but a degree. That is why, in
determining what is one degree lower under Article 61, the medium is one degree lower. That is not a
degree. That is why, it will have its own period. This is when a period becomes a degree.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
227
Chapter Five
Execution and Service of Penalties
Section One
General Provisions
ARTICLE 78. When and how a penalty is to be executed. No penalty shall be executed except by virtue
of a final judgement.
A penalty shall not be executed in any other form than that prescribed by law, not with any other
circumstances or incidents than those expressly authorized thereby. In addition to the provisions of the
law, the special regulations prescribed for the government of the institutions in which the penalties are to
be suffered shall be observed with regard to the character of the work to be performed, the time of its
performance and other incidents therewith, the relations of the convicts among themselves and other
persons, the relief which they may receive and their diet.
The regulations shall make provisions for the separation of the sexes in different institutions, or at
least into different department and also for the correction and the reform of the convicts.
ARTICLE 79. Suspension of the execution and service of the penalties in case of insanity. When a convict
shall become insane or an imbecile after final sentence has been pronounced, the execution of the said
sentence shall be suspended only with regard to the personal penalty, the provisions of the second
paragraph of circumstance no. 1 or Article 12 being observed in the corresponding cases.
If at any time the convict shall recover his reason, his sentence shall be executed, unless the
penalty shall prescribed in accordance with the provisions of this Code.
The respective provisions of this Section shall be observed if the insanity or imbecility occurs
while the convict is serving the sentence.
We have to wait that the judgement will become final. In case of an appeal, you cannot force the
accused to serve his sentence.
Question: When will the execution of the penalty be suspended? What is the ground for suspending a
penalty?
Answer: According to Article 79, in the course of serving the penalty or the portion of the penalty, the
accused becomes insane. We do not penalize in a penal institution the person who becomes insane. He
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
228
should be brought to the mental hospital for the recovery of his insanity. And once he recovers, he has to
continue serving penalty.
Question: State the legal effects of insanity of the accused.
Answer: The answer should be based on the questions. When it will take effect? When did he become
insane? When he is insane at the time he commits a crime, he is exempt.
Suppose, he was normal, but when he is charged in court, he becomes insane. Meaning, he became
insane after the information was filed. He is no longer exempted.
Question: But can we proceed for the trial of this guy?
Answer: Definitely, we cannot.
Question: So, what is the effect?
Answer: Under Criminal Procedure, in Rule 116, that is a ground for the suspension of an arraignment of
the accused on the ground of insanity.
Question: Now what happens if the accused was sane, but after he was arraigned, he become insane?
Answer: That is a ground to suspend the trial until he recovers because otherwise, it will violate his right
to defend himself, to present his evidence. And he is not competent to testify. So, his rights will be violated
if we will continue the trial.
Question: Suppose, he became insane when he was already sentenced? What is the effect?
Answer: Article 79. It is a ground to suspend the execution or service of the penalty.
ARTICLE 81. When and how the death penalty is to be executed. The death sentence shall be executed
with reference to any other and shall consist in putting the person under sentence to death by
electrocution. The death sentence shall be executed under the authority of the Director of Prisons,
endeavoring so far as possible to mitigate his sufferings of the person under sentence during the
electrocution as well as during the proceedings prior to the execution.
If the person under sentence so desires, he shall be anaesthetized at the moment of
electrocution.
This article is already amended, like the manner of execution - from electrocution to lethal
injection. But some of the parts are still true. The death sentence should be carried out not later than 1 year
after the judgement has become final. Within 1 year, it should be carried out. Unless he will be pardoned
by the President or commute his sentence. So, there will be no prolonged delay.
The law says the death sentence shall be executed with preference to any other. This jibes well with Article
70. In executing 2 or more penalties, you start at the most severe, going down to the less severe. And
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
229
therefore, if a person is sentenced to death for one crime, and 5 days for arresto menor, you do not start
with arresto menor going to death.
ARTICLE 83. Suspension of the execution of the death sentence. The death sentence shall not be inflicted
upon a woman within the 3 years next following the date of the sentence or while she is pregnant, nor
upon ant person over 70 years of age. In this last case, the death sentence shall be commuted to the
penalty of reclusion perpetua with the accessory penalties provided in Article 40.
In all cases where the death sentence has become final, the records of the case shall be
forwarded immediately by the Supreme Court to the Office of the President for possible exercise of the
pardoning power.
230
If the woman is pregnant - let us not kill the fetus. It is the mother who is guilty, not the child.
A woman within 1 year after delivery - Let us allow her to nurse the child. After 1 year, after
she delivered the baby, let us kill her with impunity.
When the convict is over 70 years old.
ARTICLE 47, RPC. In what cases the death penalty shall not be imposed. The death penalty shall
be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is
below 18 at the time of the commission of the crime, or is more than 70 years of age or when upon appeal
or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which case the penalty shall be reclusion perpetua.
ARTICLE 87. Destierro. Any person sentenced to destierro shall not be permitted to enter the place or
places designated in the sentence, nor with in the radius therein specified, which shall not be more than
250 and not less than 25 kilometers from the place designated.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
231
ARTICLE 88. Arresto menor. The penalty of arresto menor shall be served in the municipal jail, or in
the house of the defendant himself under the surveillance of an officer of the law, when the court so
provides in its decision, taking into consideration the health of the offender and other reasons which
may seem satisfactory.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
232
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum period of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which shall be within the range
of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished
by another law, the court shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum term fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same.
Section 1 states that the application of the Indeterminate Sentence Law is mandatory. What the law says is
if a person is found guilty of a crime, a sentence should cover a certain range. There should be a maximum
and a minimum.
EXAMPLE: A is accused of Homicide, as principal. He was found guilty. There was no mitigating
circumstance in his favor. There was also no aggravating. Now, impose the proper penalty under the RPC
and Indeterminate Sentence Law.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
233
So we will find out in the case of homicide the penalty is reclusion temporal with its 3 periods:
Minimum
Medium
Maximum
:
:
:
12y 1d
14y 8m 1d
17y 4m 1d
to
to
to
14y 8m
17y 4m
20y
So, we will determine. Homicide is punishable by reclusion temporal and in the problem there is
neither mitigating nor aggravating. Applying the RPC, the penalty should be within the medium. As
judge, you now have to impose the exact numbers - the years, the months and the days. You can give him
14 years, 8 months and 1 day. That is the best. But you can impose upon him 17 years and 4 months. That
is the worst. Or any combination in between.
So, for example, the court says, I will sentence you to 14 years 8months and 1 day because I'm very
liberal. That will now be maximum sentence. The next step will be finding the minimum.
The law says that the minimum should be within the range of the penalty next lower in degree. So
what is the penalty next lower in degree to reclusion temporal? It is prision mayor. And what is the range
of prision mayor? It is 6 years and 1 day to 12 years.
The law says that you must now impose the minimum within the range of 6 years and one day. So
it would be 6 years and 2 days, etc.. up to 12 years. Now we will say that the court will give him the best
thing. I will give you now 6 years and 1 day of prision mayor to 14 years 8 months and 1 day or reclusion
temporal.
Question: Since there is no mitigating, there is no aggravating, should we not divide prision mayor also
into 3 parts - minimum, medium, maximum? Meaning if the maximum is with the range of reclusion
temporal medium, the minimum should also be within the range of prision mayor medium?
Answer: NO.
In other words, Article 64 is only for the maximum. Here, the discretion of the judge is wider - the
range of the entire penalty without regard to any period. So the best thing that you can get is the
indeterminate sentence ranging from 6 years and 1 day of reclusion temporal as maximum. Or the worst
thing - 12 years of prision mayor as minimum to 17 years and 4 months of reclusion temporal as maximum.
That will now be a penalty.
Question: Suppose A was found guilty of homicide with one mitigating circumstance. What will the
penalty?
Answer: Applying Article 64, if there is a mitigating circumstance, the penalty should be within the
minimum period. The best thing is 12 years and 1 day as maximum.
234
Question: What happens after 6 years and 1 day? Can you demand a release?
Answer: NO. You cannot demand such because that is not really you sentence. Your sentence is 17 years
and 4 months. There is only a minimum under the Indeterminate Sentence Law. The real penalty is 17
years and 4 months.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
235
PROBLEM: X is accused of a complex crime of homicide with less serious physical injuries. Take note that
homicide is punishable by reclusion temporal. Less serious physical injuries are punishable by arresto
mayor. However, it is established during trial that he was only 17 years old at the time he committed the
crime. And after its commission, he voluntarily surrendered to the authorities, plus the fact that he entered
a plea of guilty upon arraignment. Based on these facts, impose the proper penalty under the RPC and
under the Indeterminate Sentence Law.
Question: What is the rule?
Answer: First look for the maximumHe is accused of a complex crime of homicide with less serious
physical injuries, with the penalty prescribed by law for each. So, what will be our starting penalty?
Prision mayor or Reclusion Temporal? Lower the penalty by one degree because of Article 68(2). So, it
goes down to Prision Mayor. Then impose the proper penalty under the RPC and the Indeterminate
Sentence Law.
PROBLEM: Vhenigna Vangkhiyud was convicted of homicide. The trial court appreciated the following
modifying circumstances. The aggravating circumstance of nocturnity and the mitigating circumstance of
passion and obfuscation, no intent to commit so grave a wrong as that committed, illiteracy and voluntary
surrender. The imposable penalty for homicide is reclusion temporal, the range of which is 12 years and 1
day to 20 years.
Question: Taking into account the attendant aggravating and mitigating circumstances and applying the
Indeterminate Sentence Law, determine the proper penalty to be imposed on the accused.
Answer: Determine the maximum by applying all the known provision of the RPC on penalties. Well, the
problem says there is one aggravating. But there are 4 mitigating circumstances offsetting the aggravating
circumstances of nocturnity. With one aggravating and four mitigating, there is a balance of 3 mitigating in
favor of the offender.
Applying Article 64(5), since there are 4 mitigating, I will fix the penalty 1 degree lower - prision
mayor - because Article 64(5) says if there are two mitigating without any aggravating xxxx. Even if you still
have a balance of three, you only apply the provision that it should be within the minimum period.
Therefore, the maximum penalty should be within the range of reclusion temporal. IT is not
necessary for you to give the precise number of years. IT is enough if you will just say within the range of
reclusion temporal minimum.
And now, under the Indeterminate Sentence Law, the proper penalty should be within the range of
prision mayor, the penalty next lower in degree anywhere within the range of the entire penalty. You do
not have to say how many years.
But suppose there is no aggravating circumstance and there are four mitigating circumstances.
Therefore, applying Article 64, the penalty should be lower boy one degree. Meaning the maximum should
be within the range of prision mayor, and the minimum should be within the range of prision correccional.
There is a danger if you start determining the penalty from the minimum going up. You should start from
the maximum going down. That is the correct application of the Indeterminate Sentence Law.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
236
Question: Is the Indeterminate Sentence Law applicable to crimes punished under special laws?
Answer: YES. According to section 1 xxxx if the offense is punished by another law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum term fixed by said
law and the minimum shall not be less than the minimum term prescribed by the same. As a matter of fact, it is
easier to apply the Indeterminate Sentence Law to crimes punished by special laws.
That is not prision correccional. One year to five years. That's it. There are no more degrees lower
or higher. Under the Indeterminate Sentence Law, it will sentence you to the maximum, the maximum
would be anywhere within that range, and the minimum should also be within that range. So, I can say
one year as minimum to five years as maximum. Or one year as minimum to four years as maximum. Anywhere
between one to five, for as long as it does not go down to less that one, or exceed five. For penalties under
special laws, there is no such thing as periods, no such thing as one degree lower. This is easier. Just fix it
anywhere within the prescribed penalty.
In other words, the court will just imposed the straight penalty only the maximum without any
minimum. So obviously, the convict has no chance of being paroled or commutation. These are out of the
question.
SECTION 2. This Act shall not apply to person convicted of offenses punished with death
penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to
those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy;
to those who are habitual delinquents; to those who shall have escaped from confinement or evaded
sentence; to those who having been granted conditional pardon by the Chief Executive shall have
violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year,
not to those already sentenced by final judgment at the time of approval of this Act, except as provided
in Section 5 thereof.
There is no such thing as reclusion perpetua as minimum and death as the maximum. Or if the
person is sentenced to life imprisonment, the sentence will be within that period.
Suppose, the penalty is reclusion perpetua. Obviously, life imprisonment is not the same as
reclusion perpetua. However, by practice, the SC, for the purpose of the Indeterminate Sentence Law, has
considered life imprisonment and reclusion perpetua as analogous because, when a person is sentence to
reclusion perpetua, the court will just simply say, You are hereby sentenced to reclusion perpetua without any
minimum. They will just impose it without a minimum penalty.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
237
For example, a person commits a crime punished by reclusion perpetua to death. The crime is a
heinous crime. But since, for example, he is entitled to a privileged mitigating circumstance; the penalty
will be lowered. It will go down to reclusion temporal.
Question: Is he entitled to the benefit of the Indeterminate Sentence Law? That the range must be within
the period of prision mayor and reclusion temporal?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
238
To those who having been granted conditional pardon by the Chief Executive shall have
violated the terms thereof;
To those whose maximum term of imprisonment does not exceed one year;
Not to those already sentenced by final judgement at the time of approval of this Act, except as
provided in Section 5 thereof.
So, definitely, if you are charged with arresto menor, there is no ISL there. That is straight. Even in
arresto mayor, it's the same. In the first place, there is no Board of Pardon in the city jail. It is only the
national penitentiary.
Question: How about prision correccional (6 months and 1 day to 6 years)?
Answer: If the penalty is six months and 1 day to 1 years, the ISL will not apply. It is when you exceed one
year that the law will apply.
Another exception not found in the law is when the principal penalty to be imposed is suspension
or destierro. Because 1 degree lower than destierro is arresto menor. It is absurd to say that the minimum
penalty is 1 month of arresto menor and the maximum is 5 years of destierro. Destierro does not involve
imprisonment.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
239
It is awkward that only minors are entitled to suspended sentence. Because we cannot deny the
fact that not everybody is a natural-born criminal. When we commit a mistake only once, it is too harsh
that you have no choice but to go to jail. So, in the same manner that a minor proves to reform, the
suspended sentence will be forgotten. That should also be applied to adults. We call him the probationer.
In the same pattern that the child will apply for suspended sentence with the court, the convict adult must
also apply for probation.
With the minor, the court will refer him to the DSWD. With the adult, the case will be referred to
the Probation Administration. So, there is a city probation officer, provincial probation officer for case
study and recommendation. If the recommendation is favorable and there is nothing in law, which
disqualifies you, the court will suspend your sentence, subject to certain conditions. If you break the
conditions, then you serve your sentence. If you do not break the conditions during the period of
probation, then you pass. Forget about your sentence. You are a free man. That is what the Probation Law
is all about.
SECTION 4. Grant of probation. Subject to the provisions of the Decree, the trial court may,
after it shall have convicted and sentenced a defendant, and upon application by said defendant within
the period of perfecting an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best; Provided, that no
application for probation shall be entertained or granted of the defendant has perfected the appeal from
the judgement or conviction.
Provision may be granted whether the sentence imposes a term of imprisonment or a fine only.
An application for probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
Actually, the Probation Law applies not only to people who are sentenced to imprisonment, but
also including those who have been sentenced to pay fine with subsidiary imprisonment in case of
insolvency. They are also covered by that.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
240
options:
Now, one important point about Section 4 is that when you are convicted in a court you have two
1.
2.
Appeal, or
Apply for probation.
And you must apply for probation within the period to appeal. You cannot apply for probation
after 15 days. You choose between the two.
Question: Can I appeal later on, when I am found guilty and the judgement become final, apply for
probation?
Answer: Under the law, you cannot have your cake and eat too. When you file a petition for probation, you
are automatically waiving you right to appeal. You are accepting the correctness of the decision. If you
appeal, then you stake your future in that appeal. In the event that your conviction is affirmed, then you
cannot say that you will now apply for probation. Now, you go to jail. Probation and appeal cannot go
together.
SECTION 9. Disqualified Offenders. The benefits of this Decree shall not extend to those:
a.
b.
c.
d.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
241
SECTION 8. Criteria for Placing an Offender on Probation. In determining whether an offender may be
placed on probation, the court shall consider all information relative to the character, antecedents,
environment, mental and physical condition of the offender, and available institutional and community
resources. Probation shall be denied if the court finds that:
a.
b.
c.
the offender is in need of correctional treatment that can be provided effectively by his
commitment to an institution;
there is an undue risk that during the period of probation the offender will commit another
crime; or,
probation will depreciate the seriousness of the offense committed.
Under Section 8, there still other grounds for the court to consider. But these are discretionary or
based on the sound judgement of the court. We are more interested in Section 9 because really, the law
disqualifies
Six years and 1 day is already disqualified. So, those who re sentenced to prision mayor up are
disqualified. Obviously, based on the law on jurisdiction now, no crime triable by the RTC is probationable.
PROBLEM: In case of violation of Section 8 of RA 6425 (Dangerous Drugs Act), accused Vhenigna
Vangkhiyud was given the benefit of the mitigating circumstance of voluntary plea of guilty and
drunkenness, not habitual. She was sentenced to suffer the penalty of 6 years and 4 days and to pay the
fine of P60, 000.00 with the accessory penalty provided by law plus costs of probation.
Question: If you were the judge, what action will you take on the probation?
Answer: If I were the judge, I will deny the application because the problem says that despite the 2
mitigating circumstances, she was sentenced to suffer the penalty of 6 years and 4 days. According to
Section 9 (a), the benefits of the Probation Law shall not extend to those sentence to serve the maximum
term of imprisonment of more than 6 years and 4 days. She is disqualified.
FRANCISCO vs. CA
240 SCRA 24
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
242
Facts: The accused was convicted for a crime for which she was sentenced to a maximum penalty of 10
years, she seasonably appealed for conviction. While affirming the judgement of conviction, the appellate
court reduced the penalty to a maximum of 4 years and 4 months. Taking in to consideration certain
qualifying circumstances, the accused applies for probation.
Held: She is not entitled to probation. The language of the law is that when you appeal, you cannot apply
for probation. She has already appealed.
Should an appeal bar an accused from applying for probation, if the appeal is reduced the penalty
within the probational limit while the proposition is equitable to allow the accused to apply for
probation, we are not yet prepared to accept this interpretation under existing laws and jurisprudence.
It is simply contrary to the clear express mandate of Section 4 of the Probation Laws as amended,
which states that no application for probation shall be entertained if the defendant has perfected an appeal
from the judgement of conviction. That is what the law says. And when the law does not distinguish, the
court should not distinguish. Where the law does not make an exception, neither shall the courts. That is
the literal approach.
EXAMPLE: You are charged 5 time for the same crime committed on different occasions. That usually
happens when you commit a crime against the individual several times and the maximum penalty,
assuming, for each crime, is 2 years. So there are 5 informations. So, there is a joint trial - all 5 cases are
consolidated. After trial, the accused is found guilty beyond reasonable doubt on all 5 charges. Therefore,
the court sentenced the accused to 2 years imprisonment for every crime. Total maximum is 10 years. Now,
he applies for probation.
Question: Is he entitled?
Answer: YES. You look at the individual crimes, not the totality. The sum of the multiple terms imposed
against an applicant should not be determined of his eligibility or his disqualification from probation. The
multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the
Probation Law, that is not more than 6 years, then he is entitled to probation.
What is important is that the penalty for each crime does not exceed 6 years, unless he is
specifically disqualified by other laws. The number of offenses is immaterial. As long as all the penalties
imposed taken separately are within the probational periodfor Section 4 uses the term "maximum" not
"total". The law does not intend to sum up the penalties imposed, but to take each penalty separately and
distinctly.
Question: When a crime is punishable by 6 years and 1 day, that is an afflictive penalty. The crime is
already grave. But 6 years down, the crime is less grave. Why did the law make the years the cut-off?
Answer: The purpose of the law is to exclude grave felonies. It is not the intention of the law to exclude
less grave. Therefore, if you commit 2 or more less grave felonies, you do not say five less grave equals
grave. No. There is no such thing. Even if you are convicted 100 times of that offense, the penalty is still
for less grave. You do not consider the total.
One thing to remember is that when you are under probation, you will be under the supervision of
a probation officer. There are conditions to be imposed under Section 10.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
243
Now, if you pass the period of probation, no problem. You will be disbarred. If you will not pass
or if you violated the conditions, you will be arrested, then summary hearing to determine or to prove that
there was violations. And then the probation is lifted. You will now serve imprisonment
Suppose you pass. The court, according to Section 16, will now order you final discharge and the
final discharged of the probationer shall operate to restore to him all civil rights lost or suspended, as a
result of his conviction, and to fully discharge his liability for any fine imposed as to the offense for which
the probation was granted.
Meaning, if you are sentenced to pay fine with subsidiary imprisonment and you applied for
probation, the probation will erase the payment of the fine forever. Try to compare that with the subsidiary
penalty under Article 39, which provides that the service of the subsidiary imprisonment will not relieve
you from paying the fine in the future if you become solvent. In probation, payment of the fine is
discharged.
Question: What happens to the civil liability? Will probation extinguish the civil liability?
Answer: No, the civil liability is distinct and separate from the criminal. Section 16 only discharges the
accused from payment of the fine. There is no mention of civil liability. It will still have to be paid to the
offended party.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
244
Title Four
EXTINCTION OF CRIMINAL LIABILITY
Chapter One
TOTAL EXTINCTION OF CRIMINAL LIABILITY
Art. 89. How criminal liability is totally extinguished. Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this Code.
The modes of extinguishing criminal liability. Take note that criminal liability begins with a crime.
Criminal liability starts by incurring it, but there is also an end or extinction to criminal liability.
Question: What are the grounds for the total extinction of criminal liability?
Answer: There are exactly 7 Ways of totally extinguishing criminal liability under the Revised Penal Code.
1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties, liability
therefore is extinguished only when the death of the offender occurs before final judgment.
What more can you ask of him if he dies? So, if the accused dies during the trial, after the trial, or
even while he is serving sentence, it does not matter. From the moment he dies, his criminal liability is
extinguished. The trial cannot proceed; the case has to be dismissed;
We cannot say that we will continue the trial for the record, if he is serving his sentence, after his
death, that the end. Who will serve his sentence after his death? If you will say, we will let the family
continue - they will inherit the penalty. Is there such a thing as criminal liability by succession?
Note: The death of the convict extinguishes his criminal liability as to the personal penalties.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
245
Question: Suppose a convict is sentenced to pay a fine. And then he dies, what happens to his obligation to
pay the fine?
Answer: This time, the RPC distinguishes whether he died BEFORE the judgment became final, or AFTER
the judgments became final.
For example, while the case is on appeal, he dies, and then it is also finished. The obligation to pay
the fine is extinguished. But, if the pecuniary judgment has become final and executors', then he dies, the
obligation to pay the fine is not extinguished because the fine can be collected by the Slate through his
assets. Based on his assets, the government can enforce the payment of the fine. That is the distinction.
Distinguish whether the penalty is personal or pecuniary.
How about the civil liability? Suppose, a person is convicted by the RTC for homicide, sentenced
to imprisonment and ordered to indemnify the family of the victim the sum of P2G,000 by way of
compensatory damages. Or, any other type of criminal case where there is civil liability. The accused
appealed. While the appeal is pending in the CA, the accused died.
What happens not to the civil liability? Can this continue or not? The old rule was, from the
moment the convict died, the case would be dismissed. The civil liability would also be extinguished.
However, that ruling - that the case can no longer continue after the death of the accused as to both
criminal and civil liability - was reversed starting with the rulings in the case of Torrejos vs. CA, (67 SCRA
349), reiterated in the more famous case of People vs. Sendaydiego, (81 SCRA 120).
These cases are commentaries on what happens after the death of the convict, as to civil liability.
What will happen to the case on appeal? The first two cases are followed by a few more cases, then in 1992,
People vs. Badico, (204 SCRA 182) - and among others, about 8 cases where upon the death of the accused
or convict, while the case is on appeal, the criminal liability extinguished but not the civil liability.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
246
Answer: The cases for that were Article 30 of the Civil Code and Section 20, Rule 3 of the 1997 Rules of
Court. Remember Civil Procedure, Sec. 20, Rule 3? That's where after the death of the defendant, if there is
already a final judgment by the RTC but not yet final, and then the defendant dies, you do not dismiss the
case anymore but you substitute with the their of legal representative.
ARTICLE 9 of the CIVIL CODE provides that when a separate civil action is brought to demand
civil liability arising from a criminal offense, and no criminal proceedings are instituted during the
pendency of the civil case, a preponderance of evidence shall likewise he sufficient to prove the met
complained of.
SECOND 20, RULE 3, RULES OF COURT. Where claim does not survive. - When the action is for
recovery of money, debt or interest thereon, and the defendant dies before final judgment in the RTC, it
shall be dismissed to he prosecuted in the manner especially provided in these rules.
That was the basis. And that ruling .subsisted until the SC en bane so, doctrinal, reversed all these
previous cases and reverted to the original rule, in the leading case of People vs. Bayotas (236 SCRA 239).
This was promulgated by the SC en banc on Sept. 2, 1994.
Question: Does the death of the accused pending appeal of his conviction extinguish his civil liability?
Does such death affect his criminal responsibility and civil liabilities which are the consequences of his
crime?
Answer: Yes. We go back to the old rule, The SC said the earlier ruling in Torrejos vs. CA; People vs.
Sendaydiego and succeeding cases, are abandoned. Why? In these cases, there was a mistaken reliance on
Article 30 of the Civil Code and Section 20, Rule 3 of the Rules of Court. In other words, the SC after several
cases said, "We made a mistake."
If we were to render the penalty in the intendment of Art. 100 of the RPC, which provides that every person
criminally liable for a felony is also liable, in such cases extinction of the criminal action due to the death of the
accused pending appeal inevitably signifies the concomitant extinction of the civil liability, works only in absolving.
So, meaning, no more substitution. You cannot say, "Okay, we will substitute the heirs to continue the case as to the
civil aspect."
Question: Don't you think it is quite unfair-just imagine if you're a victim of Theft or Estafa, and there is no
more means of getting back what was taken away from you?
Answer: No, What it is saying is that you cannot collect the civil liability in the criminal cases. It cannot
continue. Substitution is not allowed.
Question: What is the philosophy behind this?
Answer: You go back to the Civil Code. Article 1157 of the Civil Code.
247
3. Quasi-contracts;
4. Acts or omissions punished by law; and,
5. Quasi-delicts.
Number 4, acts or omissions by law - that includes civil liability arising from crimes. That is also a
source of obligations. But obligations arise not only from crimes; they also arise from quasi-delict (culpaaquiliana), quasi-contracts, or contract, or the law itself.
The SC said, in this case of Bayotas, if the obligation to recover is extinguished," the case is only
coming from the crime the only .source of the obligation is the crime. The death of the convict also
extinguishes it. However, it is also possible that the obligation to pay arises also from the crime and from
other sources.
Example: You entrusted me to your goods, and then I run away with your goods. That is estafa. I will be
liable for estafa, abuse of confidence. Do I have the obligation to return to you your goods? Of course. Why?
As a civil liability for the crime of estafa. But even if there is no estafa, I still have to return to you your
goods because of the contract of agency. So, the obligation here arises from 2 possible sources.
Or, for example, you hit a pedestrian while you are driving a vehicle. So you are accused of
homicide or reckless imprudence, if you are convicted, you have to indemnify the family. Your obligation
here arises from a criminal act. But, even without the criminal act, WQH are still liable under the source of
quasi-delict. Meaning, the civil liability here can arise from 2 possible sources,
If the source of the liability is only the crime, then it's goodbye for you. Death dissolves everything. But, if
aside from the crime the civil liability can be recovered from any other source - for example contract or
quasi-delict, then you can still recover despite the death of the defendant.
Do not be afraid because when you file the criminal case where the civil case is deemed instituted
To summarize the new rulings in the case of Bayotas:
The death of the accused pending of his conviction extinguishes his criminal as well as the civil
liability based solely thereon. Meaning, the source of the obligation is only the crime.
Corollarily, the claim for civil liability survives notwithstanding the death of the accused if the
same may also be predicated on a source of obligation other than the crime, citing Article 1157 of
the Civil Code.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
248
Where the civil liability survives as explained in #2 above, an action for recovery thereof may be
pursued but only by way of filing a separate civil action and subject to Sec. 1, Rule III of the 1985
Rules on Criminal Procedure. This separate civil action or claim may be enforced against the
executor or administrator of the estate of the deceased, depending on the source of obligation upon
which the same is based. If the claim, is arising form contract, you claim against the estate. If it is
arising from quasi-delict, claim by civil action against, the executor.
The private offended party need not fear the forfeiture of his rights to file a separate civil action by
prescription.
In such case, the statute of limitations does not run, The liability is deemed interrupted during the
pendency of the criminal case conformably with Article 1155 of the Civil Code. That should avoid any
apprehensions the possible of right by prescription
3.) By amnesty, which completely extinguishes the penalty and all its effects;
4.) By absolute pardon;
PARDON
Individually
May be granted for common crimes
Erases the penalty but not the crime. The
conviction remains.
Generally pardon comes after conviction.
Pardon is a private act by the president. And not
within the realm of judicial notice. In order to
invoke it, one must present evidence with respect
to the pardon.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
249
The Department ruled that Linda may be reinstated to her former position without the necessity of
reappointment and directed her to see to it that the sum of P 5,000.00 is satisfied. She may be reinstated but
she has to pay the civil liability. Claiming that she is not obliged to pay P 5,000. Linda appealed to the Office
of the President. Even the P 5,000, she would not like to pay , The Office of the President dismissed the
appeal, and her acquittal due to the pardon is flic only ground for her reinstatement to her former position.
That absolute pardon does not exempt the culprit from paying the civil liability. Mosanto went to the SC.
Held: She will be entitled to apply again. The SC based its ruling on the nature of the pardon. Pardon
implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. The
conviction stays. Pardon does not was out the moral stain. It involves forgiveness and not forgetfulness.
Pardon looks to the future If is not retrospective, ft makes no amends for the past If affords to relieve from
what has been suffered by the defendant.
Pardon may relieve a person form disability of fines and forfeitures attendant, in a conviction. But it
cannot erase the stain of bad character which has definitely been fixed.
Pardon cannot produce such moral charges as to equate the pardoned convict in character and conduct
with one who was constantly maintained the mark of good law-abiding citizen.
Pardon cannot bring back lost virtue for honesty, integrity and credibility.
So, what is the ruling? Lopez is not entitled. The pardon docs not entitle her to get back her former
position. There is a missing Question: How about the civil liability9 Art, 113. Pardon extinguishes only the
criminal aspect; the civil liability in favor of the government, the fine, yes, but not the civil aspect of the
case.
ARTICLE 113, RPC. Obligation to satisfy civil liability.Except in case of extinction of his civil
liability as provided in the nest preceding article, the offender shall continue to be obliged to satisfy the
civil liability resulting from the crime committed by hi, not withstanding the fact that he has served his
sentence consisting of deprivation of liberty or other rights, or has not been required the same by reason of
amnesty, pardon, commutation of sentence or any other reason.
250
serve your penalty. Beyond a certain period of time, the penalty also will prescribe. After that, you can no
longer be compelled to serve penalty.
7.) By marriage of the offended woman, provided in Article 344 of this Code; this is applicable
only to Crimes against Chastity --rape, seduction, abduction, acts of lasciviousncss. When the victim of
the rape, etc. marries the abduction or the rapist, the criminal liability of the accused is automatically
extinguished. So, from victim to wife.
Art. 90. Prescription of crime. Crimes punishable by death, reclusion perpetua or reclusion temporal
shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the exception of
those punishable by arresto mayor, which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The crime of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of
the application of the rules contained in the first, second and third paragraphs of this article. (As
amended by RA 4661, approved June 19, 1966).
Meaning, a case must be filed within a certain period. Otherwise, lapsed I he period starts from the
highest to the lowest. From crimes punishable by death, reclusion perpetua the gravity. Then from 15 to
20 years. Afflictive penalties: prision mayor, reclusion temporal. Etc.
Then, crimes punishable by CORRECTIONAL PENALTIES with the exception of arresto mayor.
Suspension, destierro are 10 years. The lowest, arresto mayor is 5 years. So, 20-10-5, and then light felonies
prescribed penalty 2 months-(60 days).
There are certain crimes with special prescriptive periods, like libel, which prescribes only in 1 year.
Oral defamation and slander by deed are also special crimes. But oral defamation and slander by deed (6
months) refer to grave oral defamation, or serious or grave slander by deed. If it is slight oral defamation,
that's only 2 month; thats only a light felony.
.
251
the injury is only slight, Lesser or Tense, So the court convicted the accuse of the crime of slight physical
injuries.
But the charge is less serious physical injuries. With that, the accuse said:" I move to set aside the conviction
including the penalty." Why? "Because if it is slight physical injuries only, I committed only a light felony.
Therefore, the charge against me should have been filed within 2 months. You filed the information for 1
year." The prosecutor said: "But we did not accuse you of slight physical injuries. We accused you of less
serious physical injuries, which prescribes in 5 years. It is only accidental that you were convicted of slight
physical injuries."
Held: Prescribed. The information should have been filed within 2 months. If we will follow the
prosecution's theory, you can easily heat prescription. That will be one way of circumventing the law of
prescription.
Where the accused has been found to have committed a lesser offense included within the criminal
offense charged, he cannot be convicted of the lesser offense if it has already prescribed. To hold otherwise
would be to sanction a circumvention of the law on prescription by the simple expedient of accusing the
defendant of the grave offense.
Question: The crime is committed on March 15, 1995. Slight physical injuries (light felony) The information
was filed on May 15, 1995. Has the crime prescribed, or was the deadline met by the prosecution?
Answer: What do you mean by months? Months mean 30 days. March has 31 days. March 15 to April 14 is
one month. April has only 30 days (April 14 lo May 14). Therefore, in the given case, the information was
filed on May 15, so the deadline to file was supposed to be on May 14. So you must know how to compute.
Question: Suppose the last day fall on a Sunday? How can I file the case on a Sunday? Or if the last day is
holiday?
Answer: The law on pleadings. If you failed to file an answer in a civil case, or if the filing of the appeal
falls on a Sunday or a holiday, it can be done on the next business day that is found in the revised
Administration Code. Meaning, there is an automatic extension. So, now the failure to file an answer in a
civil case, the period to file the notice of appeal, if it falls on a Sunday, then file it in die next business day.
Thai was the issue in the case of Vapdiangco vs. Buencamino (122 SCRA 713).
Answer: The prescriptive period under Article 90 applies only to those which are in the penal code. If does
not apply to crimes punishable by special laws. In special laws, it provides for its own prescriptive period.
Well, I think most annotated books, the author cites an old law which gives the prescriptive period of
crimes punishable by special law.
Art. 91. Computation of prescription of offenses. The period of prescription shall commence to run
from the day on which the crime is discovered by the offended party, the authorities, or their agents,
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
252
and shall be interrupted by the filing of the complaint or information, and shall commence to run again
when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him.
The term of prescription shall not run when the offender is absent from the Philippine Archipelago.
The period of prescription commences to run from the date the crime is discovered. Take note, the
word is discovered and not committed. Normally, the crime is discovered only when it is committed. It is
absurd. When you box me and you will only discover this fact tomorrow. You discovered the offense upon
commission. But there are some crimes where the date of discovery will not coincide with the date of
commission of the offense.
A good example is murder or homicide. If a victim is killed and his cadaver is buried to prevent its
discovery. So the person is killed is a missing person because nobody know where his cadaver is. But after
one year his cadaver was discovered and identified. In other words, the discovery came after one year from
its commission.
Another example is if in a public gathering you were not there. There, you were defamed by the
accused. He said so many things about you publicly. But you did hot know about it. So one day one of
those who were present in the gathering told you that this is what happened. Oh, so I see how do you
compute the prescriptive period in this case? It is not the day of the commission but on the date of
discovery. That is how discovered and commission of the offense will not coincide.
But the law says, not only discovered... discovered by whom? Now in the case of offended party in
crimes against persons, it is not the person who died first but his family.
PROBLEM: Suppose, A murders B in an uninhabited place without knowing it that there is somebody who
saw it. X who is a farmer saw it. He did not say anything about it. So assuming A hid the cadaver and
thought that nobody has seen the crime. Now, for several years, X. kept them and then after several years,
he told the authorities of the death of B and the killer, A. Just look over there, where the body is.
The law says the discovery of the crime not the discovery of the criminal. Suppose the crime is
committed today and it was discovered today but nobody knows the criminal. When do you start
computing the prescriptive period? Of course today. Because today, the crime is discovered. But nobody
knows the killer, for 20 years the killer is in hiding And after 10 years he surfaces.
When does the time of running the prescriptive period stop to run? By filing a complaint or
criminal information. Well, you know in criminal procedure, you know the distinction between a complaint
and a criminal information.
In criminal procedure, a MTC judge can conduct preliminary investigation on cases triable by the
RTC. Unlike in the city, it is not allowed Suppose the complaint for murder is filed in the MTC for
preliminary investigation because they cannot try the murder case because it is not within their jurisdiction.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
253
Is the filling of the criminal complaint for preliminary investigation in the MTC sufficient to interrupt the
running of (he prescriptive period or is it the filing of a case in a court which has jurisdiction?
That is where jurisprudence sets in.. People vs. del Rosario, but the doctrine is in thecase of People
vs. Olarte. The SC said: The filing of the complainant for the peupose of preliminary investigation stops the running
of the prescriptive period. Why? Because according to the SG, Article 91 does not distinguish whether the
complaint was filed for trial or for preliminary investigation.
Let us go to the fiscal because a complaint for a preliminary investigation can also be filed in the
fiscal's office. It is called a "denuncia". Suppose a police files a criminal complaint for murder or denuncia
before the fiscal's office. Will the filing thereof interrupt the prescriptive period? The old rule in No. That
which is filed in the MTC, yes, in the fiscal, no. But one division of the SC in 1983 said the filing of
complaint before fiscal's office stops the running of the prescriptive period.
Then, two years later came the 1985 Rules on Criminal Procedure which rejected the ruling. So, the
filing does not interrupt. But in 1998, the criminal procedure was amended. The last paragraph of Rule 110
says: The institution of the criminal case, whether it is instituted in the fiscals office or court, whether for
trial or criminal investigation is sufficient to interrupt the prescriptive period. The amendment in 1988
reinstated the Francisco ruling. So, since 1988, the filing of a complaint in the fiscal's office is also sufficient.
However, in 1991 or 1992 in the case of REYES, the SC distinguished if the complaint filed in the
fiscal's office is covered by the summary rules, it does not interrupt But if it is not covered by the summary
rules, then it does interrupt. But we will touch this more in the rules on criminal procedure. So, from the
filing of the complaint, the running of the prescriptive period stops but it continues to run again if the
proceedings are terminated again without any acquittal or condition.
If the case ends with an acquittal or termination, then it cannot be re-filed because there is already
double jeopardy. But if the case ends not based on acquittal or termination, meaning the case ends without
all the conditions for double jeopardy present, the running of the prescriptive period continues. A good
example is when the case is dismissed because of technicality like lack of jurisdiction or the information is
not charging an offense or the person filing the information has no authority to do so.
And the period of prescription according to article 91 does not run if the offender is outside the
country because there is no way for the court to acquire jurisdiction over your person and because if you go
into hiding it works against you.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
254
So, when was the crime? 1961. Registered? 1961. But the complainant said: "We discovered in June
1983. A criminal case for falsification was filed on October 1984, one year later. The prescriptive period for
falsification: ten years. When do you start counting the prescriptive period? In 1961, there are 22 years, so it
cannot be, or in 1983 where the complainants claim that they discovered the existence of the falsified
document. The law said discovered.
Held: The crime has prescribed. The prescriptive period starts from 1961. Why? Under the law on property
registration, registration of the document with the register of deed is notice to the whole world. Meaning,
the whole world and the complainants are deemed notified. So it is constructive notice.
It is established that registration to the public registry is addressed to the whole world, in legal
contemplation, discovery muss be reckoned to have taken place from the time it is registered in the Register
of Deeds. The presumption in rules of interpretation used in prescription on civil suits including the rules
on constructive notice can be applied to rules on criminal actions. The rule on prescription of crimes is an
act of amnesty or liberality on the part of the state tin favor of the accused. The rule on constructive notice
in the construction of Art. 91 would work favorably to the accused.
Sermon vs. CA
233 SCRA 155
Facts: This involves prosecution of bigamy. A man has 2 marriage contracts. He was prosecuted for bigamy
and he pleaded prescription. The wife said: "I discovered the second marriage when I was in the State. The
husband said nothing. Remember the marriage contract was registered in the civil registry and that is also
constructive place under the case of Reyes.
Issue: Whether in computing the prescriptive period for the crime of bigamy, should discovery be deemed
to have taken place from die time the offended party actually knew of the subsequent marriage or from the
second marriage was registered in the civil registry consistent with the notice.
Held: The computation stalls form the time the offended party actually knew. So, not the time of
registration. While the rules on constructive notice in civil cases may be applied in criminal actions, if the
actual and legal circumstances so warrants. However, it will not apply in the crime of bigamy not
withstanding its favorable being accused.
In the criminal cases cited, wherein the constructive notice was applied, what is involved therein
were land or property disputes and certainly marriage is not property. What is constructive notice? That is
found in Section 52 of the Property Registration Act. This provision has no counterpart either under
RA3753 ( Civil Registry Act) or under article 407-412 of the Civil Code that there is constructive notice
which leads US to the conclusion that there is no legal basis on the constructive notice rule to apply to the
documents registered in the Civil Registry.
Where we put our imprimatur to the theory of the accused, in all likelihood we would be playing
right into the hands of philanderers, for we would be equating the contract of marriage into an ordinary
contract or other similar document without due regard to the stability of marriage as a social inviolable
institution the preservation of which is prime social duty.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
255
What is going to prescribe is not the crime but the penalty already imposed So, what is the
assumption"' The assumption is that the accused has been tried and convicted As a matter of fact, the only
thing left is to enforce the penalty but somehow the convict has evaded sentence and after the lapse of a
certain period the penalty will prescribe Read Article 92, For example, you are convicted to death and you
escaped, be sure that you go in hiding for 20 years.
If you at the prescriptive periods here, they are almost: identical under Article 90- 20-15-10-5. In
Article 90, the prescriptive period for a light felony is 2 months. But in Article 92, the prescriptive period for
a light felony is one year. That's the difference. So for example, you are found guilty of committing a light
felony and you were sentenced to one day of arresto menor. You do not want to serve that. So you evade for
one year. So, you need one year before it will prescribe.
The assumption here is that the accused has already been tried and convicted. The only tiling left is
to enforce the penalty but somehow the convict has evaded serving the sentence and after the lapse of a
certain period the penalty will prescribe For Example: You are sentenced to death. So you'd rather
disappear but be sure that you'll not be caught for 20 years. After 20 years, the penalty has already
prescribed. Prescription of penalties is almost similar to prescription of crimes ( Art. 90). The only variation
is in Art, 90 the prescriptive period for a light felony is 2 months, whereas in Art. 92 it is 1 year.
Example: You are found guilty committing a light felony. You were sentenced to 1 day of arresto
menor. But you don't want to go to jail to serve that 1 day. So, you must evade that for 1 year. So, you need 1
year before it will prescribe.
Art. 92. When and how penalties prescribe. The penalties imposed by final sentence prescribe as
follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which
prescribes in five years;
4. Light penalties, in one year.
It commence to run from the date culprit evade his sentence. So, you must evade like escaping from
jail. Or before you are to go to jail, you evade like what happened to Rolito Go. The prescriptive period had
started to run in his favor. The judgment is final. I think that is murder. So, that prescribes in 20 years. But it
is interrupted when you surrender or you are captured.
Suppose, you are sentenced to a crime where the penalty prescribes in 15 years I evade. After ten
years I was captured. So, I have to serve the penalty. Then, I escaped again. How long should I remain at
large? 5 years, because you have a deposit often years.
The law says interrupted but it is not forfeited. It is also interrupted when you go to a foreign
country where our government has no way of acquiring jurisdiction. So, be sure that you are here when
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
256
you want that prescription run in your favor. Also, be sure that there is no extradition treaty in the country
where you will hide. Lastly, you must not commit another crime before the expiration of the period of
prescription. So, you must behave while you are in hiding.
Question: Is this tantamount to encouraging person to escape? Why should we reward a person from
escaping?
Answer: The philosophy behind this provision was cited by Viada. There is a similar provision in the
Spanish Penal Code which was quoted by the SC in the case of Infante vs. Prison
Warden,
This is what is says: If a convict under confinement, at (he risk of being killed, succeed in breaking jail and
also succeeds in evading re-arrest for a certain period of time which by no means is short, despite the effort of all the
instrumentalities of the government including sometimes, the setting of prize or reward on his head, which here by
enlists the aid of the citizenry, thai calls off the search for him, and condones the penalty. This against the Government
of the Philippines, This is you against the whole world.
So, the fight is not even, the Government is stronger than you. So, if you succeed in outwitting the
government, the Government will give a sort of amnesty. But during that period of prescription, the
escaped convict lives a life a hunted animal, hiding mostly in the mountains and forests in constant mortal
fear of being caught. His life is far from being happy, comfortable and peaceful, is reduced to a mere
existence filled with fear, discomfort, loneliness and misery. As, the convict who evades sentence is
sometimes sufficiently punished by this voluntary and self-imposed banishment, and at times the
voluntary is more than grievous than the sentence he was trying to avoid. And at all times he was to utilize
every ingenuity and means to outwit the Government agencies bent on recapturing him. For all this, the
government extends to him a sort of a condonation or amnesty.
Requisite: the period of prescription of penalties shall commence to run from the date when the culprit
should evade the service of his sentence. Meaning, he-must evade.
So for Example: escaping from jail or before you could be brought to jail, you hide. But it is interrupted
when the convict:
3.
4.
5.
6.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
257
Chapter Two
PARTIAL EXTINCTION OF CRIMINAL LIABILITY
Art. 94. Partial Extinction of criminal liability. Criminal liability is extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit may earn while he is serving his sentence.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
258
TITLE FIVE
CIVIL LIABILITY
CHAPTER ONE
PERSONS CIVILLY LIABLE FOR FELONIES
That is a very short article but the ramifications are very complicated. A complete understanding of
Art 100 is not confined to Criminal Law. It also includes some principles in Civil LawObligations and
Contracts;, Torts and Damages, and Criminal Procedure 7 he procedural ramifications of Article 100 are not
found in the RFC. They are found in Rule III of the 1985 Rules on Criminal Procedure. What are we going
to review in Article 100 are only the basic ideas.
When a criminal case if filed against you, whether you like it or not a civil case is also filed. So in
effect, when a criminal case is filed, there is automatically or impliedly a civil case for recovery of civil
liability filed. So when you are sentenced, you are sentenced not only for the criminal offense but you are
also sentenced as to your civil liability. That is why there are-2 aggrieved parties in the criminal action. One
is the State represented by the prosecutor for the criminal offense. The other one is the private offended
party who is given the law the right to recover civil liability. How is this litigated? Through representation
by the private prosecutor.
Question: Suppose a civil case is segregated or reversed, the question now is: Which of the two should be
decided or litigated first?
Answer: The general rule is that the criminal case -must precede the civil case. The Civil case must await
the outcome of the criminal case. The civil case is suspended until the criminal is decided. Suppose, he is
acquitted. How about that? No problem because Rule 111 says that the extinction of the criminal liability
does not extinguished civil liability.
In civil cases, only preponderance of evidence is needed. The evidence may not be sufficient to
convict but it is sufficient to prove your cause of action. But what happens if you already have file the civil
case? According to Criminal Procedure, when the criminal case is filed, the trial of the civil case is
suspended to await the outcome of the criminal case unless, there is an attempt to consolidate the trial.' So,
the rule is: The criminal case takes precedence over civil case.
Question: Is there an exception? Is there an instance where if the civil action is not suspended it will not
await the outcome of the criminal action?
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
259
Answer: In other words, let the civil and criminal cases proceed simultaneously separately, without
minding the outcome of either. Is that possible? This is true if your civil action is classified as an
independent civil action.
Independent civil actions, according to Rule 111 are those found in Arts. 32, 33, 34 and 2176 of the Civil
Code. So, the following can be filed separately from the criminal case.
The third situation is entirely different. The civil case takes precedence over the criminal case. The
pendency of the civil case will suspend the criminal. This is the exact opposite of the first rule. What is this
rule? This rule is also known as Prejudicial Question where the innocence or guilt of the accused depends
on the outcome of the civil case. These principles and their ramifications are treated more in criminal
procedure.
Art. 101. Rules regarding civil liability in certain cases. The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code
does not include exemption from civil liability, which shall be enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an
imbecile or insane person, and by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall devolve upon those having such person
under their legal authority or control, unless it appears that there was no fault or negligence on their
part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has
been prevented shall be civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in sound discretion, the proportionate amount for which each one shall be
liable.
When the respective shares cannot be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all
events, whenever the damages have been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing
the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property exempt from execution.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
260
Question: This goes back to those circumstances which justify criminal liability. Is there civil liability?
Answer: None, except those that fall under subdivision 4 of Article II. In exempting, the general rule. There
is civil liability except paragraphs 4 and 7. This is what the discussion of civil liability in those cases. The
first minority or insanity or imbecility. They are exempt from criminal liability but they are not exempt from
civil liability.
Question: How do you enforce the civil liability of minor with respect to a crime he has committed?
Answer: The law governing the civil liability of minor is this Article 101, paragraph 1 of the RPC. But this
was subsequently amended by PD 603. However, PD 603 was further modified by Article 221 of the Family
Code, as amended by EO 227.
Question: What is now the present governing law with respect to the civil liability o minors?
Answer: It is not Article 221 of the Family code as amended by EO 227. This is what Article 221 says:
Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages
caused by the acts of their unemancipated children living in their company and under their parental
authority subject to the appropriate defenses provided by law.
The liability now devolves upon those who exercise parental authority. But you can raise defenses.
Originally, many thought that this Article only applies to quasi-delicts. Meaning, parents are only civilly
liable for acts or omissions committed by their unemancipated children arising from culpa aquiliana
subject to defenses. But the SC said in the case of Libi vs. IAC, 214 SCA 16, Article 221 of the Family Code
applies to civil liability committed by minors arising from a crime. It is not confined only to quasi-delict.
The parents are liable and be held primarily liable for civil liability arising from criminal offenses
committed by their minor children under their authority or control or who live in their company unless it is
proven that the former acted with the diligence of a good father of a family.
That primary liability under the provisions of Article 101 of the RPC with respect to damages ex-delicto
caused by their children. Such primary liability is imposed pursuant to Article 2180 of the Civil Code.
Therefore, ultimately, the civil liability of parents for the crimes committed-by their children is also
governed by Article 2180 of the Civil Code. That Is on quasi-delict where the parents can claim the exercise
of a good father of a family.
That is why LIB1 case is doctrinal. Before, the issue was: Can the parents avoid liability by claiming exercise
of due diligence in the supervision of their children? Weil, you will say that it is only possible when I am
suing for quasi-delict, but here we are talking of civil liability arising from a crime. You cannot use Article
2180 for this. The SC said, NO. It is because of Article 221 of the Family Code, and clarified by the case of
Libi vs. IAC. This question should have come out in the bar.
Question: How about state of necessity?
Answer: Article 101. Well, our example before was that the fire department destroyed some
buildings to prevent the fire from spreading. Who will shoulder the civil liability? Well, all
those who benefited.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
261
The third refers to uncontrollable fear and irresistible force. The person using violence or cause fear
shall be primarily liable civilly. Those who do the act are secondarily liable. So, those primarily liable civilly
are also criminally liable as principals by inducement.
This refers to liabilities of innkeepers, tavern-keepers. These terms are old English. The modern
concept is hotels or lodging houses. Taverns are bars or restaurants. For example, an ordinance prohibits
the selling of liquor after midnight. Suppose one customer kills another customer while still serving liquor.
So, when the crime was committed you were still serving liquor. Who is liable criminally? Of course, the
customer. Who is civilly liable? Of course, the customer. What if he is insolvent? The owner of the bar is
liable. This is how you apply the first paragraph.
Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established in
the next preceding article shall also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
This is what you call as the subsidiary liability of employees. The perfect example when you are engaged in
a transportation business. That is very common. Your driver, while driving the ear, hits somebodyhomicide through .reckless imprudence. So, your driver is the one charged criminally. The driver was
convicted. The judgment has become final. He was sent to jail and to pay the family of the victim the sum of
P50,000. He cannot pay. In most cases, that is what happens. The driver is insolvent,
What will happen? The employer will pay. That is subsidiary. If the driver is insolvent, the employer shall
be liable. Suppose he happened to be my family driver. Can you apply this? NO. Because there you are not
engaged in business. There is employer-employee relationship. But you can sue under culpa aquiliana. But
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
262
not Article 103. This one applies only to employer for crimes committed by their employees if they are
engaged in an industry. He employs a person for his business, not his household.
Question: Is this not the same culpa-aquiliana where for the act of the employee, the employer is liable?
Answer: No, here in culpa-aquliana, you can sue directly the employer. In Article 103, you must wait for
the conviction to happen. You must wait for the finality. You must prove insolvency of the employee before
you can recover, What is the advantage? The employer cannot say that he exercised diligence in the
supervision of his employee That is only applicable in culpa-aquiliana. That is not available as a defense
under Article 103. The defense is that I am not engaged in an industry, or he is not acting in the discharge of
his duties.
The third party will not be liable because of the protection for innocent purchasers for value. What is your
right? You are the owner, your right is to run against the Assurance Fund It is different when I steal your
title then I pretend that I knew, let us say, I introduce myself as the title owner, then 1 sell it to you citing my
name as the name of the true owner. My buyer did not have a better title because the one who sold the land
to him is not the real owner 1 he seller is somebody who merely impersonated the true owner.
Question: Suppose, a hotel guest was told by the management: Do not keep your goods inside your hotel
room. One day, the room boy or the chambermaid entered the room. The chambermaid saw the guest's
money and stole it. The thief was identified, so the thief-employee was charged with theft and found guilty,
lie was sentenced to indemnify -restitution or relation for the-loss of property. But he did mil pay. Is his
employer liable? Is the hotel manager liable for the losses if the victim did not follow his instruction? Is the
hotel management liable?
Answer: Under Article 102, the hotel management is not liable. But under Article 103, it is liable because
the chambermaid, the thief is its employee. What is integrated by article 102 is theft committed by third
persons on hotel guests, but not theft committed by the hotel employeesArticle 103 applies. Even if the
hotel guest did not follow the instructions, that is not an excuse for not being liable.
Art. 105. Restitution; How made. The restitution of the thing itself must be made whenever
possible, with allowance for any deterioration, or diminution of value as determined by the
court.
The thing itself shall be restored, even though it be found in the possession of a third
person who has acquired it by lawful means, saving to the latter his action against the proper
person, who may be liable to him.
This provision is not applicable in cases in which the thing has been acquired by the
third person in the manner and under the requirements which, by law, bar an action for its
recovery.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
263
There is a case involving a robber for theft or robbery for as long the property is proven to have
been transferred to a third person, who is not a party. The recovery from the
Art. 106. Reparation; How made. The court shall determine the amount of damage, taking into
consideration the price of the thing, whenever possible, and its special sentimental value to the
injured party, and reparation shall be made accordingly.
Reparation is really applied in crimes against property. For example, in theft or in robbery if the object can
no longer be returned because it is already consumed if consumable, or it was sold to somebody who can
no longer be found. Or you cannot return
something, like it was razed by fire. How to recover it? The next substitute is reparation. You pay for the
value of the property destroyed . property stolen.
Question: How do you determine the value?
Answer: The market value, including other factors, like the sentimental value of the property
Art. 107. Indemnification; What is included. Indemnification for consequential damages shall
include not only those caused the injured party, but also those suffered by his family or by a third
person by reason of the crime.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
264
For physical injuries, you pay damages to the victim, loss of earning capacity, actual and
compensatory. This is where the law on torts and damages comes in.
If you murder somebody, you have to indemnify the family, actual and compensatory. Of course,
what is the value of human life? There is no definite value. You cannot place a value on how much a life of
a human being costs. Based on practice and policy of the SC as of today, what is the standard rate for the
life of a human being? P50,000. But it could be higher but not less. That is the standard minimum. That is
automatic. If the victim died, the court will decree indemnity for the family for P50,000. Not only that, there
are other damages tinder the law.
Art. 108. Obligation to make restoration, reparation for damages, or indemnification for consequential
damages and actions to demand the same; Upon whom it devolves. The obligation to make
restoration or reparation for damages and indemnification for consequential damages devolves upon
the heirs of the person liable.
The action to demand restoration, reparation, and indemnification likewise descends to the
heirs of the person injured.
Something, like it was razed by fire. How to recover it? The next substitute is reparation. You pay for the
value of the property destroyed . property stolen.
Question: How do you determine the value?
Answer: The market value, including other factors, like the sentimental value of the property
If you murder somebody, you have to indemnify the family, actual and compensatory. Of course,
what is the value of human life? There is no definite value. You cannot place a value on how much a life of
a human being costs. Based on practice and policy of the SC as of today, what is the standard rate for the
life of a human being? P50,000. But it could be higher but not less. That is the standard minimum. That is
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
265
automatic. If the victim died, the court will decree indemnity for the family for P50,000. Not only that, there
are other damages tinder the law.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
266
If the victim dies before he can recover (damages), his heirs will inherit his right to recover.
Suppose, it is accused who died before he could pay his liability, who will now pay? That law says, it shall
devolve upon the heirs of the accused. It does not mean to say that the heirs will pay the liability from their
own pockets. The heirs of the accused will pay only out of what they inherited from the deceased. if the
deceased or accused died a pauper, you cannot tell his family "you raise money for me". If nothing is left to
them, you cannot recover. if something is left to you, obligation first before inheritance So. that is based on
what the accused left behind. Do not interpret it in such a way the heirs have to work for raising money to
pay for the liability.
Art. 109. Share of each person civilly liable. If there are two or more persons civilly liable for a felony
the courts shall determine the amount for which each must respond.
Art. 110. Several and subsidiary liability of principals, accomplices and accessories of a felony; Preference
in payment. Notwithstanding the provisions of the next preceding article, the principals, accomplices,
and accessories, each within their respective class, shall be liable severally (in solidum) among
themselves for their quotas, and subsidiaries for those of the other persons liable.
The subsidiary liability shall be enforced, first against the property of the principals; next, against that
of the accomplices, and, lastly, against that of the accessories.
Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom
payment has been made shall have a right of action against the others for the amount of their respective
shares.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
267
Art. 111. Obligation to make restitution in certain cases. Any person who has participated gratuitously
in the proceeds of a felony shall be bound to make restitution in an amount equivalent to the extent of
such participation.
What is an example of a person who has participated gratuitously in the proceeds of a felony? It
applies to a person who received, by vvay of gift, stolen property. He acquired it gratuitously. We will
assume that the third person who received a stolen ring, did not know that it was stolen, because if he
knew he will be an accessory. Or fence. Now, assuming he is m good faith, he cannot be held criminally
liable as a fence or accessory, but he cannot avoid, civil liability.
Question: How do you compare Art.111 from Art.105?
ARTICLE 105
The third person who acquired the property is also
required to return it to its owner.
The third person acquired stolen property by lawful
means
ARTICLE 111
He is also bound to make restitution
The third person acquired it gratuitously
According to the law, such third person is liable to make a restitution in an amount equivalent to
the extent of his participation. For example, a thief gave his girlfriend a diamond ring worth P 50,000.00 as a
gift. Then, later they broke up. The girl sold the ring for P 20,000.00. Later on, it was established that the
ring was stolen. It was given to her, but she was in good faith What happened to the ring? She sold it away.
To whom did she sell it? She didn't see her anymore. What is the civil liability of the girlfriend? The
P20,000.00 should be returned to its owner. But the ring is worth P50.000. You are able to restitute only in
an amount equivalent to the extent of your participation, The benefit or participation of the girlfriend is
only worth P20,000. She cannot be made to pay higher than that. That is what it means.
Suppose, i steal food, for example, cake from the bakeshop worth P 100. I gave it to you, you ate it and then
there is now civil liability in favor of the owner of the bakeshop on account of the theft. Question: Are you
liable because you acquired the cake gratuitously and you were satisfied because you ate it? Are you liable
for reparation in the amount of P100. Answer: No, that is not applicable to that case because this applies
only when your fortune is augmented when become richer, your income increases.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
268
CHAPTER THREE
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY
Do not confuse extinction of criminal liability from the extinction of civil liability. Extinction of
criminal liability is Art. 89, total extinction, Art. 94, Partial extinction.
PROBLEM: Somebody was stealing cattle, While the cattle was in his possession, the cows died because of
some disease.
Question: Is the accused, upon conviction, liable to pay for the value of the cattle. So, that is the only mode
not recognized under the Penal Code.
The grounds for extinction of criminal liability are separate and distinct from the grounds of
extinction of civil liability. Pardon by the President, or amnesty may extinguish the criminal liability, but
does not extinguish the civil liability because that is separate and distinct. The President can pardon the
criminal liability, but not the civil liability. You have to separate the rules" in extinguishing criminal liability
from the rules extinguishing civil liability. That is very clear under Art. 113.
Question: Is there an obligation on the part of the accused despite the pardon to still pay the civil liability?
Answer: Article 113 is very clear. Pardon does not wipe out civil liability.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
269
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
270
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
271
(e) The administration of the juvenile justice and welfare system shall take into consideration the cultural and religious
perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection
of the rights of children belonging to these communities.
(f) The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children
in conflict with the law.
SEC. 3. Liberal Construction of this Act. - In case of doubt, the interpretation of any of the provisions of this Act, including
its implementing rules and regulations (IRRs), shall be construed liberally in favor of the child in conflict with the law.
SEC. 4. Definition of Terms. - The following terms as used in this Act shall be defined as follows:
(a) "Bail" refers to the security given for the release of the person in custody of the law, furnished by him/her or a
bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security,
property bond, cash deposit, or recognizance.
(b) "Best Interest of the Child" refers to the totality of the circumstances and conditions which are most congenial to the
survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and
emotional development. It also means the least detrimental available alternative for safeguarding the growth and
development of the child.
(e) "Child" refers to a person under the age of eighteen (18) years.
(d) "Child at Risk" refers to a child who is vulnerable to and at the risk of committing criminal offenses because of
personal, family and social circumstances, such as, but not limited to, the following:
(1) being abused by any person through sexual, physical, psychological, mental, economic or any other means
and the parents or guardian refuse, are unwilling, or unable to provide protection for the child;
(2) being exploited including sexually or economically;
(3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be
found;
(4) coming from a dysfunctional or broken family or without a parent or guardian;
(5) being out of school;
(6) being a streetchild;
(7) being a member of a gang;
(8) living in a community with a high level of criminality or drug abuse; and
(9) living in situations of armed conflict.
(e) "Child in Conflict with the Law" refers to a child who is alleged as, accused of, or adjudged as, having committed an
offense under Philippine laws.
(f) "Community-based Programs" refers to the programs provided in a community setting developed for purposes of
intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her
family and/or community.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
272
(g) "Court" refers to a family court or, in places where there are no family courts, any regional trial court.
(h) "Deprivation of Liberty" refers to any form of detention or imprisonment, or to the placement of a child in conflict
with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to
leave at will by order of any judicial or administrative authority.
(i) "Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of a
child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational
background without resorting to formal court proceedings.
(j) "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after he/she
is found responsible for an offense without resorting to formal court proceedings.
(k) "Initial Contact With-the Child" refers to the apprehension or taking into custody of a child in conflict with the law
by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law
receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under
Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no
necessity to place the child alleged to be in conflict with the law under immediate custody.
(I) "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an
offense. It may take the form of an individualized treatment program which may include counseling, skills training,
education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being.
(m) "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with
the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion,
rehabilitation, re-integration and aftercare to ensure their normal growth and development.
(n) "Law Enforcement Officer" refers to the person in authority or his/her agent as defined in Article 152 of the Revised
Penal Code, including a barangay tanod.
(0) "Offense" refers to any act or omission whether punishable under special laws or the Revised Penal Code, as
amended.
(p) "Recognizance" refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be
responsible for the appearance in court of the child in conflict with the law, when required.
(q) "Restorative Justice" refers to a principle which requires a process of resolving conflicts with the maximum
involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of
the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into
society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies.
(r) "Status Offenses" refers to offenses which discriminate only against a child, while an adult does not suffer any
penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like.
(s) "Youth Detention Home" refers to a 24-hour child-caring institution managed by accredited local government units
(LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for
children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or
jurisdiction.
(t) "Youth Rehabilitation Center" refers to a 24-hour residential care facility managed by the Department of Social
Welfare and Development (DSWD), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
273
care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided
under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with
the end view of reintegrating them into their families and communities as socially functioning individuals. Physical
mobility of residents of said centers may be restricted pending court disposition of the charges against them.
(u) "Victimless Crimes" refers to offenses where there is no private offended party.
CHAPTER 2
PRINCIPLES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE
SEC. 5. Rights of the Child in Conflict with the Law. - Every child in conflict with the law shall have the following rights,
including but not limited to:
(a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment;
(b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release;
(c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a
disposition of last resort, and which shall be for the shortest appropriate period of time;
(d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which
takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from
adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed
separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in
conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits,
save in exceptional circumstances;
(e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of
the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a
prompt decision on such action;
(f) the right to bail and recognizance, in appropriate cases;
(g) the right to testify as a witness in hid/her own behalf under the rule on examination of a child witness;
(h) the right to have his/her privacy respected fully at all stages of the proceedings;
(i) the right to diversion if he/she is qualified and voluntarily avails of the same;
(j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights
of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative
justice;
(k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by
law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the
more appropriate penalty;
(I) in general, the right to automatic suspension of sentence;
(m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law;
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
274
(n) the right to be free from liability for perjury, concealment or misrepresentation; and
(o) other rights as provided for under existing laws, rules and regulations.
The State further adopts the provisions of the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice or "Beijing Rules", United Nations Guidelines for the Prevention of Juvenile Delinquency or the "Riyadh
Guidelines", and the United Nations Rules for the Protection of Juveniles Deprived of Liberty.
SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program
pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and
be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be
subjected to the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not include exemption from civil liability, which shall be
enforced in accordance with existing laws.
SEC. 7. Determination ofAge. - The child in conflict with the law shall enjoy the presumption of minority. He/She shall
enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The
age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent
documents. In the absence of these documents, age may be based on information from the child himself/herself,
testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to
the age of the child, it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict with the law prior to the filing of the information in any
appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which
shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties.
If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the person
shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on
the said motion, proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert
all efforts at determining the age of the child in conflict with the law.
TITLE II
STRUCTURES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE
SEC. 8. Juvenile Justice and Welfare Council (JJWC). - A Juvenile Justice and Welfare Council (JJWC) is hereby created and
attached to the Department of Justice and placed under its administrative supervision. The JJWC shall be chaired by an
undersecretary of the Department of Social Welfare and Development. It shall ensure the effective implementation of
this Act and coordination among the following agencies:
(a) Council for the Welfare of Children (CWC);
(b) Department of Education (DepEd);
(c) Department of the Interior and Local Government (DILG);
(d) Public Attorney's Office (PAO);
(e) Bureau of Corrections (BUCOR);
(f) Parole and Probation Administration (PPA)
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
275
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
276
The data gathered shall be used by the JJWC in the improvement of the administration of juvenile justice and welfare
system.
The JJWC shall set up a mechanism to ensure that children are involved in research and policy development.
(h) Through duly designated persons and with the assistance of the agencies provided in the preceding section, to
conduct regular inspections in detention and rehabilitation facilities and to undertake spot inspections on their
own initiative in order to check compliance with the standards provided herein and to make the necessary
recommendations to appropriate agencies;
(i) To initiate and coordinate the conduct of trainings for the personnel of the agencies involved in the administration of
the juvenile justice and welfare system and the juvenile intervention program;
(j) To submit an annual report to the President on the implementation of this Act; and
(k) To perform such other functions as may be necessary to implement the provisions of this Act.
SEC. 10. Policies and Procedures on Juvenile Justice and Welfare. - All government agencies enumerated in Section 8 shall,
with the assistance of the JJWC and within one (1) year from the effectivity of this Act, draft policies and procedures
consistent with the standards set in the law. These policies and procedures shall be modified accordingly in
consultation with the JJWC upon the completion of the national juvenile intervention program as provided under
Section 9 (d).
SEC. 11. Child Rights Center (CRC). - The existing Child Rights Center of the Commission on Human Rights shall ensure
that the status, rights and interests of children are upheld in accordance with the Constitution and international
instruments on human rights. The CHR shall strengthen the monitoring of government compliance of all treaty
obligations, including the timely and regular submission of reports before the treaty bodies, as well as the
implementation and dissemination of recommendations and conclusions by government agencies as well as NGOs and
civil society.
TITLE III
PREVENTION OF JUVENILE DELINQUENCY
CHAPTER 1
THE ROLE OF THE DIFFERENT SECTORS
SEC. 12. The Family. - The family shall be responsible for the primary nurturing and rearing of children which is critical
in delinquency prevention. As far as practicable and in accordance with the procedures of this Act, a child in conflict
with the law shall be maintained in his/her family.
SEC. 13. The Educational System. - Educational institutions shall work together with families, community organizations
and agencies in the prevention of juvenile delinquency and in the rehabilitation and reintegration of child in conflict
with the law. Schools shall provide adequate, necessary and individualized educational schemes for children
manifesting difficult behavior and children in conflict with the law. In cases where children in conflict with the law are
taken into custody or detained in rehabilitation centers, they should be provided the opportunity to continue learning
under an alternative learning system with basic literacy program or non- formal education accreditation equivalency
system.
SEC. 14. The Role of the Mass Media. - The mass media shall play an active role in the promotion of child rights, and
delinquency prevention by relaying consistent messages through a balanced approach. Media practitioners shall,
therefore, have the duty to maintain the highest critical and professional standards in reporting and covering cases of
children in conflict with the law. In all publicity concerning children, the best interest of the child should be the
primordial and paramount concern. Any undue, inappropriate and sensationalized publicity of any case involving a
child in conflict with the law is hereby declared a violation of the child's rights.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
277
SEC. 15. Establishment and Strengthening of Local Councils for the Protection of Children. - Local Councils for the Protection
of Children (LCPC) shall be established in all levels of local government, and where they have already been established,
they shall be strengthened within one (1) year from the effectivity of this Act. Membership in the LCPC shall be chosen
from among the responsible members of the community, including a representative from the youth sector, as well as
representatives from government and private agencies concerned with the welfare of children.
The local council shall serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of
a comprehensive plan on delinquency prevention, and to oversee its proper implementation.
One percent (1%) of the internal revenue allotment of barangays, municipalities and cities shall be allocated for the
strengthening and implementation of the programs of the LCPC: Provided, That the disbursement of the fund shall be
made by the LGU concerned.
SEC. 16. Appointment of Local Social Welfare and Development Officer. - All LGUs shall appoint a duly licensed social
worker as its local social welfare and development officer tasked to assist children in conflict with the law.
SEC. 17. The Sangguniang Kabataan. - The Sangguniang Kabataan (SK) shall coordinate with the LCPC in the
formulation and implementation of juvenile intervention and diversion programs in the community.
CHAPTER 2
COMPREHENSIVE JUVENILE INTERVENTION PROGRAM
SEC. 18. Development of a Comprehensive Juvenile Intervention Program. - A Comprehensive juvenile intervention program
covering at least a 3-year period shall be instituted in LGUs from the barangay to the provincial level.
The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their
annual budget.
The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the child-focused institutions,
NGOs, people's organizations, educational institutions and government agencies involved in delinquency prevention to
participate in the planning process and implementation of juvenile intervention programs. Such programs shall be
implemented consistent with the national program formulated and designed by the JJWC. The implementation of the
comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination
with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not
later than March 30 of every year.
SEC. 19. Community-based Programs on Juvenile Justice and Welfare. - Community-based programs on juvenile justice and
welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies.
The LGUs shall provide community-based services which respond to the special needs, problems, interests and
concerns of children and which offer appropriate counseling and guidance to them and their families. These programs
shall consist of three levels:
(a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle
perceived root causes of offending;
(b) Secondary intervention includes measures to assist children at risk; and
(c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other
measures to prevent re-offending.
TITLE IV
TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
278
SEC. 20. Children Below the Age of Criminal Responsibility. - If it has been determined that the child taken into custody is
fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to
immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's
nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine
the appropriate programs in consultation with the child and to the person having custody over the child. If the parents,
guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the
following: a duly registered nongovernmental or religious organization; a barangay official or a member of the
Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or when and
where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and
Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not
comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or
the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise ,known as "The
Child and Youth Welfare Code".
TITLE V
JUVENILE JUSTICE AND WELFARE SYSTEM
CHAPTER I
INITIAL CONTACT WITH THE CHILD
SEC. 21. Procedure for Taking the Child into Custody. - From the moment a child is taken into custody, the law enforcement
officer shall:
(a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed
under custody and the offense that he/she allegedly committed;
(b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or
dialect understood by him/her;
(e) Properly identify himself/herself and present proper identification to the child;
(d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on
the child in conflict with the law;
(e) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless
absolutely necessary and only after all other methods of control have been exhausted and have failed;
(f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her
apprehension;
(g) Avoid violence or unnecessary force;
(h) Determine the age of the child pursuant to Section 7 of this Act;
(i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social
Welfare and Development Office or other accredited NGOs, and notify the child's apprehension. The social welfare
and development officer shall explain to the child and the child's parents/guardians the consequences of the
child's act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and
reparation, if appropriate;
(j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination.
The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the
medical treatment is required, steps shall be immediately undertaken to provide the same;
(k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters
separate from that of the opposite sex and adult offenders;
(l) Record the following in the initial investigation:
1. Whether handcuffs or other instruments of restraint were used, and if so, the reason for such;
2. That the parents or guardian of a child, the DSWD, and the PA0 have been informed of the apprehension
and the details thereof; and
3. The exhaustion of measures to determine the age of a child and the precise details of the physical and
medical examination or the failure to submit a child to such examination; and
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
279
(m) Ensure that all statements signed by the child during investigation shall be witnessed by the child's parents or
guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement.
A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be
locked up in a detention cell.
SEC. 22. Duties During Initial Investigation. - The law enforcement officer shall, in his/her investigation, determine where
the case involving the child in conflict with the law should be referred.
The taking of the statement of the child shall be conducted in the presence of the following: (1) child's counsel of choice
or in the absence thereof, a lawyer from the Public Attorney's Office; (2) the child's parents, guardian, or nearest
relative, as the case may be; and (3) the local social welfare and development officer. In the absence of the child's
parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be
conducted in the presence of a representative of an NGO, religious group, or member of the BCPC.
After the initial investigation, the local social worker conducting the same may do either of the following:
(a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen (15) but below
eighteen (18) years old, who acted without discernment; and
(b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, proceed to
diversion under the following chapter.
CHAPTER 2
DIVERSION
SEC. 23. System of Diversion. - Children in conflict with the law shall undergo diversion programs without undergoing
court proceedings subject to the conditions herein provided:
(a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law
enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or
other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate,
adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to
accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and
his/her family shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social
welfare and development officer shall meet with the child and his/her parents or guardians for the development of
the appropriate diversion and rehabilitation program, in coordination with the BCPC;
(c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may
be resorted to only by the court.
SEC. 24. Stages Where Diversion May be Conducted. - Diversion may be conducted at the Katarungang Pambarangay, the
police investigation or the inquest or preliminary investigation stage and at all 1evels and phases of the proceedings
including judicial level.
SEC. 25. Conferencing, Mediation and Conciliation. - A child in conflict with law may undergo conferencing, mediation or
conciliation outside the criminal justice system or prior to his entry into said system. A contract of diversion may be
entered into during such conferencing, mediation or conciliation proceedings.
SEC. 26. Contract of Diversion. - If during the conferencing, mediation or conciliation, the child voluntarily admits the
commission of the act, a diversion program shall be developed when appropriate and desirable as determined under
Section 30. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or
administrative proceedings. The diversion program shall be effective and binding if accepted by the parties concerned.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
280
The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social
welfare and development officer shall supervise the implementation of the diversion program. The diversion
proceedings shall be completed within forty-five (45) days. The period of prescription of the offense shall be suspended
until the completion of the diversion proceedings but not to exceed forty-five (45) days.
The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a
month for reporting and evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and
development officer, shall give the offended party the option to institute the appropriate legal action.
The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not
exceeding a period of two (2) years.
SEC. 27. Duty of the Punong Barangay When There is No Diversion. - If the offense does not fall under Section 23(a) and (b),
or if the child, his/her parents or guardian does not consent to a diversion, the Punong Barangay handling the case
shall, within three (3) days from determination of the absence of jurisdiction over the case or termination of the
diversion proceedings, as the case may be, forward the records of the case of the child to the law enforcement officer,
prosecutor or the appropriate court, as the case may be. Upon the issuance of the corresponding document, certifying
to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process.
SEC. 28. Duty of the Law Enforcement Officer When There is No Diversion. - If the offense does not fall under Section 23(a)
and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Women and Children
Protection Desk of the PNP, or other law enforcement officer handling the case of the child under custody, to the
prosecutor or judge concerned for the conduct of inquest and/or preliminary investigation to determine whether or not
the child should remain under custody and correspondingly charged in court. The document transmitting said records
shall display the word "CHILD" in bold letters.
SEC. 29. Factors in Determining Diversion Program. - In determining whether diversion is appropriate and desirable, the
following factors shall be taken into consideration:
(a) The nature and circumstances of the offense charged;
(b) The frequency and the severity of the act;
(c) The circumstances of the child (e.g. age, maturity, intelligence, etc.);
(d) The influence of the family and environment on the growth of the child;
(e) The reparation of injury to the victim;
(f) The weight of the evidence against the child;
(g) The safety of the community; and
(h) The best interest of the child.
SEC. 30. Formulation of the Diversion Program. - In formulating a diversion program, the individual characteristics and
the peculiar circumstances of the child in conflict with the law shall be used to formulate an individualized treatment.
The following factors shall be considered in formulating a diversion program for the child:
(a) The child's feelings of remorse for the offense he/she committed;
(b) The parents' or legal guardians' ability to guide and supervise the child;
(c) The victim's view about the propriety of the measures to be imposed; and
(d) The availability of community-based programs for rehabilitation and reintegration of the child.
SEC. 31. Kinds of Diversion Programs. - The diversion program shall include adequate socio-cultural and psychological
responses and services for the child. At the different stages where diversion may be resorted to, the following diversion
programs may be agreed upon, such as, but not limited to:
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
281
CHAPTER 3
PROSECUTION
SEC. 32. Duty of the Prosecutor's Office. - There shall be a specially trained prosecutor to conduct inquest, preliminary
investigation and prosecution of cases involving a child in conflict with the law. If there is an allegation of torture or illtreatment of a child in conflict with the law during arrest or detention, it shall be the duty of the prosecutor to
investigate the same.
SEC. 33. Preliminary Investigation and Filing of Information. - The prosecutor shall conduct a preliminary investigation in
the following instances: (a) when the child in conflict with the law does not qualify for diversion: (b) when the child,
his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; and (c) when considering the
assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for
the child in conflict with the law.
Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorney's Office of
such service, as well as the personal information, and place of detention of the child in conflict with the law.
Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the
Family Court within forty-five (45) days from the start of the preliminary investigation.
CHAPTER 4
COURT PROCEEDINGS
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
282
SEC. 34. Bail. - For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority
shall be considered.
SEC. 35. Release on Recognizance. - Where a child is detained, the court shall order:
(a) the release of the minor on recognizance to his/her parents and other suitable person;
(b) the release of the child in conflict with the law on bail; or
(c) the transfer of the minor to a youth detention home/youth rehabilitation center.
The court shall not order the detention of a child in a jail pending trial or hearing of his/her case.
SEC. 36. Detention of the Child Pending Trial. - Children detained pending trial may be released on bail or recognizance as
provided for under Sections 34 and 35 under this Act. In all other cases and whenever possible, detention pending trial
may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an
educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure
of last resort and for the shortest possible period of time.
Whenever detention is necessary, a child will always be detained in youth detention homes established by local
governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides.
In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD
or a local rehabilitation center recognized by the government in the province, city or municipality within the
jurisdiction of the court. The center or agency concerned shall be responsible for the child's appearance in court
whenever required.
SEC. 37. Diversion Measures. - Where the maximum penalty imposed by law for the offense with which the child in
conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone
regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine
whether or not diversion is appropriate.
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the
commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of
conviction, the court shall place the child in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen
years (18) of age or more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various chcumstances of the child, the court shall impose the
appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law.
SEC. 39. Discharge of the Child in Conflict with the Law. - Upon the recommendation of the social worker who has custody
of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom
disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the
disposition measures have been fulfilled.
The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the
offense, which shall be enforced in accordance with law.
SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition
measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law
has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict
with the law shall be brought before the court for execution of judgment.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
283
If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court
shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend
the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21)
years.
SEC. 41. Credit in Service of Sentence. - The child in conflict with the law shall be credited in the services of his/her
sentence with the full time spent in actual commitment and detention under this Act.
SEC. 42. Probation as an Alternative to Imprisonment. - The court may, after it shall have convicted and sentenced a child in
conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her
sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968,
otherwise known as the "Probation Law of 1976", is hereby amended accordingly.
CHAPTER 5
CONFIDENTIALITY OF RECORDS AND PROCEEDINGS
SEC. 43. Confedentiality of Records and Proceedings. - All records and proceedings involving children in conflict with the
law from initial contact until final disposition of the case shall be considered privileged and confidential. The public
shall be excluded during the proceedings and the records shall not be disclosed directly or indirectly to anyone by any
of the parties or the participants in the proceedings for any purpose whatsoever, except to determine if the child in
conflict with the law may have his/hes sentence suspended or if he/she may be granted probation under the Probation
Law, or to enforce the civil liability imposed in the criminal action.
The component authorities shall undertake all measures to protect this confidentiality of proceedings, including nondisclosure of records to the media, maintaining a separate police blotter for cases involving children in conflict with the
law and adopting a system of coding to conceal material information which will lead to the child's identity. Records of
a child in conflict with the law shall not be used in subsequent proceedings for cases involving the same offender as an
adult, except when beneficial for the offender and upon his/her written consent.
A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of
perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact
related thereto in response to any inquiry made to him/her for any purpose.
TITLE VI
REHABILITATION AND REINTEGRATION
SEC. 44. Objective of Rehabilitation and Reintegration. - The objective of rehabilitation and reintegration of children in
conflict with the law is to provide them with interventions, approaches and strategies that will enable them to improve
their social functioning with the end goal of reintegration to their families and as productive members of their
communities.
SEC. 45. Court Order Required. - No child shall be received in any rehabilitation or training facility without a valid order
issued by the court after a hearing for the purpose. The details of this order shall be immediately entered in a register
exclusively for children in conflict with the law. No child shall be admitted in any facility where there is no such
register.
SEC. 46, Separate Facilities from Adults. - In all rehabilitation or training facilities, it shall be mandatory that children shall
be separated from adults unless they are members of the same family. Under no other circumstance shall a child in
conflict with the law be placed in the same confinement as adults.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
284
The rehabilitation, training or confinement area of children in conflict with the law shall provide a home environment
where children in conflict with the law can be provided with quality counseling and treatment.
SEC. 47. Female Children. - Female children in conflict with the law placed in an institution shall be given special
attention as to their personal needs and problems. They shall be handled by female doctors, correction officers and
social workers, and shall be accommodated separately from male children in conflict with the law.
SEC. 48. Gender-Sensitivity Training. - No personnel of rehabilitation and training facilities shall handle children in
conflict with the law without having undergone gender sensitivity training.
SEC. 49. Establishment of Youth Detention Homes. - The LGUs shall set aside an amount to build youth detention homes as
mandated by the Family Courts Act. Youth detention homes may also be established by private and NGOs licensed and
accredited by the DSWD, in consultation with the JJWC.
SEC. 50. Care and Maintenance of the Child in Conflict with the Law. - The expenses for the care and maintenance of a child
in conflict with the law under institutional care shall be borne by his/her parents or those persons liable to support
him/her: Provided, That in case his/her parents or those persons liable to support him/her cannot pay all or part of said
expenses, the municipality where the offense was committed shall pay one-third (1/3) of said expenses or part thereof;
the province to which the municipality belongs shall pay one-third (1/3) and the remaining one-third (1/3) shall be
borne by the national government. Chartered cities shall pay two-thirds (2/3) of said expenses; and in case a chartered
city cannot pay said expenses, part of the internal revenue allotments applicable to the unpaid portion shall be
withheld and applied to the settlement of said obligations: Provided, further, That in the event that the child in conflict
with the law is not a resident of the municipality/city where the offense was committed, the court, upon its
determination, may require the city/municipality where the child in conflict with the law resides to shoulder the cost.
All city and provincial governments must exert effort for the immediate establishment of local detention homes for
children in conflict with the law.
SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A child in conflict with the
law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other training facilities that may be established, maintained,
supervised and controlled by the BUCOR, in coordination with the DSWD.
SEC. 52. Rehabilitation of Children in Conflict with the Law. - Children in conflict with the law, whose sentences are
suspended may, upon order of the court, undergo any or a combination of disposition measures best suited to the
rehabilitation and welfare of the child as provided in the Supreme Court Rule on Juveniles in Conflict with the Law.
If the community-based rehabilitation is availed of by a child in conflict with the law, he/she shall be released to
parents, guardians, relatives or any other responsible person in the community. Under the supervision and guidance of
the local social welfare and development officer, and in coordination with his/her parents/guardian, the child in
conflict with the law shall participate in community-based programs, which shall include, but not limited to:
(1) Competency and life skills development;
(2) Socio-cultural and recreational activities;
(3) Community volunteer projects;
(4) Leadership training;
(5) Social services;
(6) Homelife services;
(7) Health services; .
(8) Spiritual enrichment; and
(9) Community and family welfare services.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
285
In accordance therewith, the family of the child in conflict with the law shall endeavor to actively participate in the
community-based rehabilitation.
Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and
development officer to the court for final disposition of the case.
If the community-based programs are provided as diversion measures under Chapter II, Title V, the programs
enumerated above shall be made available to the child in conflict with the law.
SEC. 53. Youth Rehabilitation Center. - The youth rehabilitation center shall provide 24-hour group care, treatment and
rehabilitation services under the guidance of a trained staff where residents are cared for under a structured
therapeutic environment with the end view of reintegrating them in their families and communities as socially
functioning individuals. A quarterly report shall be submitted by the center to the proper court on the progress of the
children in conflict with the law. Based on the progress of the youth in the center, a final report will be forwarded to the
court for final disposition of the case. The DSWD shall establish youth rehabilitation centers in each region of the
country.
SEC. 54. Objectives of Community Based Programs. - The objectives of community-based programs are as follows:
(a) Prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is
studying, working or attending vocational learning institutions;
(b) Prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the support
system fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities;
(c) Facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community
support and involvement; and
(d) Minimize the stigma that attaches to the child in conflict with the law by preventing jail detention.
SEC. 55. Criteria of Community-Based Programs. - Every LGU shall establish community-based programs that will focus
on the rehabilitation and reintegration of the child. All programs shall meet the criteria to be established by the JJWC
which shall take into account the purpose of the program, the need for the consent of the child and his/her parents or
legal guardians, and the participation of the child-centered agencies whether public or private.
SEC. 56. After-Care Support Services for Children in Conflict with the Law. - Children in conflict with the law whose cases
have been dismissed by the proper court because of good behavior as per recommendation of the DSWD social worker
and/or any accredited NGO youth rehabilitation center shall be provided after-care services by the local social welfare
and development officer for a period of at least six (6) months. The service includes counseling and other communitybased services designed to facilitate social reintegration, prevent re-offending and make the children productive
members of the community.
TITLE VII
GENERAL PROVISIONS
CHAPTER 1
EXEMPTING PROVISIONS
SEC. 57. Status Offenees. - Any conduct not considered an offense or not penalized if committed by an adult shall not be
considered an offense and shall not be punished if committed by a child.
SEC. 58. Offenses Not Applicable to Children. - Persons below eighteen (18) years of age shall be exempt from prosecution
for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under
Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
286
inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo
appropriate counseling and treatment program.
SEC. 59. Exemption from the Application of Death Penalty. - The provisions of the Revised Penal Code, as amended,
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws
notwithstanding, no death penalty shall be imposed upon children in conflict with the law.
CHAPTER 2
PROHIBITED ACTS
SEC. 60. Prohibition Against Labeling and Shaming. - In the conduct of the proceedings beginning from the initial contact
with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile
delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory
remarks and practices shall be allowed particularly with respect to the child's class or ethnic origin.
SEC. 61. Other Prohibited Acts. - The following and any other similar acts shall be considered prejudicial and detrimental
to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with
the law and therefore, prohibited:
(a) Employment of threats of whatever kind and nature;
(b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary
confinement;
(c) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating,
corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around
the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and
(d) Compelling the child to perform involuntary servitude in any and all forms under any and all instances.
CHAPTER 3
PENAL PROVISION
SEC. 62. Violation of the Provisions of this Act or Rules or Regulations in General. - Any person who violates any provision of
this Act or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be
punished by a fine of not less than Twenty thousand pesos (P20,000.00) but not more than Fifty thousand pesos
(P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine
and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or
special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment,
be held administratively liable and shall suffer the penalty of perpetual absolute disqualification.
CHAPTER 4
APPROPRIATION PROVISION
SEC. 63. Appropriations. - The amount necessary to carry out the initial implementation of this Act shall be charged to
the Office of the President. Thereafter, such sums as may be necessary for the continued implementation of this Act
shall be included in the succeeding General Appropriations Act.
An initial amount of Fifty million pesos (P50,000,000.00) for the purpose of setting up the JJWC shall be taken from the
proceeds of the Philippine Charity Sweepstakes Office.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
287
TITLE VIII
TRANSITORY PROVISIONS
SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. - Upon effectivity of this Act, cases of children
fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the
child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough
assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child
to prevention programs as provided under this Act. Those with suspended sentences and undergoing rehabilitation at
the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child.
SEC. 65. Children Detained Pending Dial. - If the child is detained pending trial, the Family Court shall also determine
whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention.
If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child
to a youth detention home.
SEC. 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. - The PNP, the BJMP and the BUCOR are
hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all
children in conflict with the law under their custody.
SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. - If a child reaches the
age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation
with the local social welfare and development officer or the Family Court in consultation with the Social Services and
Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In
case the appropriate court executes the judgment of conviction, and unless the child in conflict the law has already
availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if
qualified under the provisions of the Probation Law.
SEC. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been convicted and are serving
sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time the
commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the
retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their
sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or
other applicable law.
TITLE IX
FINAL PROVISIONS
SEC. 69. Rule Making Power. - The JJWC shall issue the IRRs for the implementation of the provisions of this act within
ninety (90) days from the effectivity thereof.
SEC. 70. Separability Clause. - If, for any reason, any section or provision of this Act is declared unconstitutional or
invalid by the Supreme Court, the other sections or provisions hereof not dfected by such declaration shall remain in
force and effect.
SEC. 71. Repealing Clause. - All existing laws, orders, decrees, rules and regulations or parts thereof inconsistent with
the provisions of this Act are hereby repealed or modified accordingly.
SEC. 72. Effectivity. - This Act shall take effect after fifteen (15) days from its publication in at least two (2) national
newspapers of general circulation.
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
288
Approved,
FRANKLIN DRILON
President of the Senate
This Act which is a consolidation of Senate Bill No. 1402 and House Bill No. 5065 was finally passed by the Senate and
the House of Representatives on March 22, 2006.
OSCAR G. YABES
Secretary of Senate
ROBERTO P. NAZARENO
Secretary General
House of Represenatives
ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabaero
ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz
289