CRIMINAL LAW REVIEW LECTURE TRANSCRIBED
JUDGE PIMENTEL
BLOCK A & C 2018
Art. 14. Aggravating circumstances. The following
are aggravating circumstances:
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9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one
crime, shall have been previously convicted by final
judgment of another crime embraced in the same title
of this Code.
When the accused is a recidivist, this is an aggravating
circumstance. A recidivist is a person, who at the time of
his trial for one felony, shall have been previously
convicted of another felony embraced in the same title of
the code. Now do not put it as an offense because you
will be probably given a deduction. It should be a felony
and another felony because it is embraced in the same
title of the code, so it must be a felony.
There are so many other privileges in the Revised Penal
Code (RPC) of which a person suffering from recidivism
is disqualified from such benefits that are given to
persons who committed a felony. For example, in
allowances for good behavior, he is not entitled to that.
Those who escaped from detention or from serving his
sentence by virtue of a final judgment and he returned
within 48 hours from the announcement of the passing
away of the calamity; or that he remained in prison, he is
not entitled to either 1/5th or 2/5th reduction of his original
sentence because he is a recidivist.
There are so many that if the offender has only been very
careful with his time, he will not be suffering from such
disqualification that is why it is also one of your duties
and responsibilities if ever you have a client who for the
first time may be convicted of a felony. You have to tell
him, if you committed another felony, in the future, those
benefits under the RPC will not be given to you. So you
have already to teach them a lesson as their lawyer.
Some lawyers do not do that. The lawyer will just say,
oh. You are already convicted, we have to convince the
judge that you are entitled to several mitigating
circumstances. I have lowered the penalty for you, but
still, if he committed another offense that is embraced in
the same title of the code. Then, he is a recidivist and,
therefore, the several disqualifications cannot actually be
erased from his record and, therefore, he will be
disqualified.
In relation to this, the person must be or must have
committed an offense. And he has been previously
convicted by a penal judgment of another crime
embraced in the same title of the Code. But in the offense
recently committed, he must be on trial for that offense.
Meaning to say, that he must also be convicted of the
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felony that is embraced in the same title of the Code.
Without conviction, he cannot be a recidivist. What he'll
be, what could be the crime that he has committed, when
he is either acquitted or declared innocent, or that the
case is dismissed, he cannot be considered a recidivist.
There is a need for a certain conviction. They don't want
to say he must be on trial, but the law also did not say
that he must be convicted of this second offense. He
must be convicted really to become a recidivist because if
he has committed only one trial and convicted of that, he
cannot be a recidivist. Because this situation of an
offender is likened to those others who are committing
multiple offenses.
Now, in connection with recidivism, what is controlling is
at the time of the trial, not at the time of the commission
of the offense. Because he has been previously
convicted of an offense embraced in the same title of the
court, and then he actually, he was on trial at the time of
his conviction of a felony impressed in the same title of
the Code. He is on trial for another offense, but he was
previously convicted of a felony embraced in the same
title of the Code. The two must be concur with each other
in order that the person may be considered a recidivist.
Recidivism must be taken into account no matter how
many years have intervened between the first and the
second offense or the second felony. Even if 30 years
have passed, and he committed another felony, and he's
on trial for that particular felony embraced in the same
title of the Code. But previously 30 years have passed he
was convicted of a felony embraced in the same title of
the court, he is still a recidivist. There is no prescription
with respect to the crime that he has committed for the
second time. Thus, the old conviction can be erased
victory the passage of time? No. It is still in the records of
the case.
And remember, aside from alleging that he is a recidivist,
it is the duty of the prosecutor not to only allege that he is
a recidivist, the prosecutor must attach to the information
the judgment of conviction by virtue of the final judgment.
Without that, the court can dismiss the case, but only
without prejudice, not with prejudice because that is a
lapse of the part of the prosecutor which may be
cured, after the case has been dismissed by filing an
amended information. Do not, have the belief that
because the prosecutor has failed to attach the decision,
the certified decision of conviction which has become
final in the signatory, that is already a ground for a
permanent dismissal of the case. No, it is not. Amnesty
extinguishes penalty and its effects. That is the effect of
an amnesty.
Amnesty extinguishes the penalty and its effects. There
are some people who benefited from amnesty, not only
the members of the NPA or other lawless elements
whose agenda is political in nature. There have been so
many amnesty cases that we do not know because they
are kept under wraps.
Pardon does not obliterate the crime. Even if accused is
pardon by either absolute, simple or conditional pardon, it
does not obliterate his being a recidivist. The pardon only
extinguishes the criminal liability, not the crime he has
committed.
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In relation to the application of the aggravating
circumstance of recidivism, it is a generic aggravating
circumstance. (Not ordinary aggravating because
ordinary is for mitigating circumstance).
Note: Ordinary circumstance if mitigating; Generic
circumstance if mitigating.
Being a generic circumstance, recidivism affects only the
periods of the penalties (meaning minimum, medium, or
maximum period) except for prostitution and gambling
wherein recidivism increases the penalties by degrees.
No other generic circumstances produces this effect.
PROSTITUTION AND GAMBLING
For gambling, the penalty under PD 1602 of
prision correccional will be prision mayor.
For prostitution, the penalty is arresto mayor, it will
be prision correccional if ever the woman is found
to be a recidivist.
It increases the penalty from Arresto mayor sometimes to
Prision correcional and if there is shall we call it a
provision under PD 1602 that the penalty is Prision
correcional if it is gambling or prostitution it will be prision
mayor but for prostitution. The penalty for prostitution is
what? Its not Arresto Menor it is Arresto Mayor so it will
blow up to prision correcional if ever a woman is found to
be a recidivist. In this Jurisdiction, I have yet to find a
woman who has been charged for the same offense
twice. Even during the time I was a MTC Judge and even
when I was a municipal judge I only had one case of
prostitution. I was even surprised that the prosecution
was able to set the arresting officers have to acquit the
suppose offender but well I was telling the prosecutor, do
you have other witnesses so I can try this even
tomorrow? I dont have your honor. So what will I do? He
doesnt have any other witnesses and the woman is
always present so I have to acquit but before acquitting
her I told her the evils of prostitution well of course their
usual reason for engaging in such unusual activity is
because of poverty, usually it is because of poverty. The
others we do not if it is because of poverty or because
they are greedy that is one thing that sometimes we a
surprised. If the succeeding offense is committed after
the commission of the preceding offense it is sufficient
that the person may be considered a recidivist. Aside
from that if both offenses were committed on the same
day, they will be considered as one, Isa lang yan. You
cannot consider that as two, which will naturally be
prejudicial to the accused. If ever the offense were
committed on the same day and the judgement was also
promulgated on the same day it is only one offense. This
is the situation if the offense is committed on the same
day. Yes but paano mangyayari yun committed on the
same day prostitution? Maybe pero if na aresto mo na
tapos sabihin mo she committed another act? Di ako
maniniwala sayo eh nasa custody mo na tapos she will
engage again in prostitution you are already trying to not
only mislead the court but it is also contemptuous a
because the possibility of the woman committing
prostitution while she is in jail. Delikado ang mga pulis
diyan. Well of course, in Recidivisim it is different from
habituality a because, in habituality.
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Art. 14 Aggravating circumstances. The following
are aggravating circumstances:
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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.
REITERACION OR HABITUALITY
(1) It is necessary that the penalty of the first offense
should have been served.
(2) The penalty of the first offense should attach an equal
or greater penalty.
(3) Also, the first offense may not be related to the
second offense. The previous and subsequent offenses
must no be embraced in the same title of the Code.
It is not necessary that is is a grave felony. However, it is
necessary that the offender was convicted of a new
offense and ended with convictionif it ended in acquittal
there is no reiteracion. It is similar to recidivism in that
theyre both generic aggravating circumstances that can
be offset by any generic mitigating circumstance.
MULTI RECIDIVISM AND HABITUAL DELINQUENCY
(Art. 62, pag. 5)
Any person, who after 10 years of his last release, after
having served his sentence or conviction of a final
judgment and he committed for the third time or oftener
any of the following offenses (1) robo (robbery) (2) horto
(theft) (3) Estafa/Swindling (4) Falsification (5) Serious
physical injuries/less serious physical injuries.
For purposes of counting, if he is convicted of a felony for
the third time, he may be sentenced by a penalty under
the law with the additional penalty of prision correccional
in it medium and maximum periods.
If he has been convicted of any of the crimes listed
above, the person shall be sentenced for the last crime
he has committed and added to this is an additional
penalty of prison mayor in its minimum period to medium
period.
If he has been convicted of the felony for the third time,
he shall be sentenced to a penalty provided for by the law
and in addition to the penalty an additional penalty of
prision correcional to its medium to maximum period shall
be added to the penalty of the third conviction.
If he has been convicted for any of the six crimes that I
have mentioned the person shall be sentenced for the
last crime that he has committed and added to this is an
additional penalty of prision mayor in its minimum period
or medium period.
If he has been convicted for the fifth time, the penalty for
the crime he has been convicted for the fifth time added
with prision mayor in maximum penalty to reclusion
temporal in its minimum period. In no case, however,
shall the totality of the penalty to be served by the
accused be more than 30 years.
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If he is a habitual delinquent, you will notice that the
felonies here are exclusive. The problem that I have here
is estafa because there is estafa committed by a public
officer with abuse of public position and there are
syndicated estafa or estafa committed in a large scale
under special law. Are they included?
J.P.: Although they are in special law, they should be
included because the elements are almost the same as
the elements of estafa under Art. 315 of the RPC.
Art. 14 Aggravating circumstances. The following
are aggravating circumstances:
xxx
11. That the crime be committed in consideration of a
price, reward, or promise.
If the crime is committed in consideration of a prize or
promise, this is what we call a qualifying aggravating
circumstance. Meaning to say, that if such circumstance
is present, the penalty that shall be imposed should be at
the maximum period. In relation to the felony that may be
committed a person who is a principal by inducement, the
aggravating circumstance is not applicable. Neither is it
applicable to principle by indispensable cooperation. It is
only applicable to principal to direct participation because
he was induced or motivated by the lure of a money or
reward, in which if there was no prize or reward, he will
not be induced to commit the crime. That is the nature of
this aggravating circumstance.
J.P.: Some people say that the circumstance is
applicable to all principals, I dont believe so because it is
inherent in the principal by inducement is the element of
a prize, reward or promise. It has no effect at all because
it is an element of the felony. It is an element of the
aggravating circumstance. Kung walang price or reward,
what will happen? No, aggravating circumstance. Thus, it
is inherent in the commission of the crime, although it is
an aggravating circumstance to the principal by direct
participation.
There have been so many cases of which the crime is
committed with a promise. Do you think that these people
who are killing other people are not being paid? They are
being paid. We know that.
Actually, there are so many cases right now where the
actual crime is committed with a promise of reward or a
prize was actually given.
Do we think that these people who kill others while they
are riding in tandem are not being paid? They are being
paid. We know that. Cases have been tried on this
matter.
Sasabihin ng gun for hire diyan, isang kontrabandos (?)
lang okay na. That kontrabandos is a prize. For bottles of
gin, a person will be killed. That is the prize.
The prize, reward, or promise is sometimes
absorbed in evident premeditation because that is
already a period of realizing the consequences of the act
of the offender. And despite the lapse of time, the
offender still commits the crime. That is evident
premeditation. That prize is included in that particular
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reflection.
Tatanungin niya, tatanggapin ko ba iyan? Tapos
sasabihin ng demonyo niya tanggapin mo na iyan. Hindi
ka kikita niyan sa isang buwan.
Most of the killings that are taking place right now
wherein the killers are riding in tandem are usually
induced by prize, reward, or promise.
Art. 14 Aggravating circumstances. The following
are aggravating circumstances:
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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, if the crime is committed by means of inundation,
fire, poison, or explosion, stranding of a vessel,
intentional damage thereto, derailment of locomotive or
by the use of any artifice involving great waste and ruin,
everybody knows that these are the means by which the
crime is committed.
FIRE
People v. Pugay
Facts: This case involves the death of a person who is
known in the community as an idiot or a dumb person.
Two persons who wanted to make fun of this dumb
person got a gallon of gasoline, then they poured the
gasoline on the body of the dumb person. Then they
lighted it. They were clapping. Those who were watching
were actually very animated by the person jumping up
and down, crying, and shouting until somebody doused
that person with water. But that dumb person already
died. Are the accused guilty of murder?
Held: NO. The Supreme Court said that there is no intent
to kill, and there being no intent to kill the crime is only
reckless imprudence resulting to homicide. Supreme
Court ruled that the accused only intended to make fun of
the deceased by burning his clothes.
I cannot believe that. For the years that I have been
teaching law and being a member of the bench, I dont
subscribe to that decision. I dont think that case should
be part of the jurisprudence that well follow and become
law.
EXPLOSION
Now, for explosion, there is no problem there. It could be
by means of grenade or other explosive materials.
I was conducting a preliminary investigation of a case
that is one for the books.
In one island in the town where I used to be circuit trial
judge, a case in my court involves the crime of murder.
The allegations in the complaint is that the offender, by
means of dynamite, killed another. Of course, it was a
general term, but it was sufficient already. The facts
however, revealed that they were both fishermen in
Mauban, Quezon.
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The province is populated by fishermen whose means of
catching fish is through dynamites. So, when the
accuseds enemy was sleeping on a bench, he tied a
stick of dynamite beneath the bench where his enemy
was sleeping and lighted the dynamite.
That is the use of explosion. Now there are so many
others.
People v. Guillen (1950)
Facts: The accused Julio Guillen, was found guilty
beyond reasonable doubt of the crime of murder and
multiple frustrated murder after his attempt to assassinate
the President of the Philippines, Manuel Roxas on March
10, 1947. The accused, determined to assassinate the
President and having found the opportunity to do so
when the President attended a popular meeting by the
Liberal Party at Plaza de Miranda, Quiapo, Manila, used
two hand grenades given to him by an American soldier.
The accused then stood on the chair he had been sitting
on and hurled the grenade at the President when the
latter had just closed his speech. A general who was on
the platform saw the smoking grenade and kicked it away
from the platform towards an open space where he
thought the grenade was likely to do the least harm. The
grenade exploded in the middle of a group of persons
standing close to the platform and grenade fragments
seriously injured. Simeon Varela died the next day due to
the mortal wounds caused. Guillen was arrested and he
readily admitted his responsibility.
Was Guillen guilty of homicide through reckless
imprudence with regard to the death of Simeon Varela
and of less serious physical injuries in regard to the other
injured persons?
Held: NO, the crime cannot be considered reckless
imprudence because there was intent. In throwing the
hand grenade at the President with the intention of killing
him, the appellant acted with malice and is therefore
liable for all the consequences of his wrongful act. As
provided by Art. 4 of the Revised Penal Code, criminal
liability is incurred by any person committing a felony
although the wrongful act done be different from that
which he intended. In criminal negligence, the injury
caused to another should be unintentional, it being simply
the incident of another act performed without malice. As
held by this Court, a deliberate intent to do an unlawful
act is essentially inconsistent with the idea of reckless
imprudence. Where such unlawful act is wilfully done, a
mistake in the identity of the intended victim cannot be
considered reckless imprudence. The sentence of the
trial court is affirmed by unanimous vote and death
sentence shall be executed in accordance with article 81
of the Revised Penal Code.
QUIAPO MASSACRE (PLAZA MIRANDA BOMBING)
Jovit Salonga sustained mortal wounds but he survived. It
was the meeting of the Liberal Party at that time, Ninoy
Aquino was supposed to be there but at the time of the
explosion he has not yet arrived. It is with a use of the
explosion, and therefore it is considered as an
aggravating circumstance.
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EXAMPLE OF USE OF ANY OTHER ARTIFICE
INVOLVING GREAT WASTE AND RUIN.
Gusto mong patayin si Pedro, pero hindi mo mapasok
yung bahay niya dahil naka-barikada (barricade). Anong
ginawa mo? Sinunog mo yung bahay. You are not guilty
of arson, only murder. This example involves great waste
and ruin. You could have waited for him to go outside of
his residence and kill him. You choose to use great waste
and ruin to kill him.
Article 14. Aggravating circumstances. The
following are aggravating circumstances:
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15. That advantage be taken of superior strength, or
means be employed to weaken the defense.
This contemplates two aggravating circumstance, either
of which qualifies the killing to murder.
TAKING ADVANTAGE OF SUPERIOR STRENGTH
There is a deliberate use of excessive force that is out of
proportion to the defense of the offended party. The
consideration is not only the size of the person, but also
the means employed in taking advantage of superior
strength.
Ex. There are two offenders, one was able to approach
from behind and embrace the victim tightly. His
companion was able to take advantage of the immobility
of the victim at the time of the offense.
Another example is if a person possesses superior
strength and the other is a weakling. The former, who is
known for his superior strength, attacked the latter.
(I dont know if Pacquiao still has superior strength, he is
backing out of the fight with Horn, claiming that he has
duties in the Senate. Ano kayang duty niya sa Senate?
But then I think he should stop already, and devote
himself in being present, not necessarily in crafting laws
that will benefit the Philippines. Tama na yung wag
siyang mag-absent, pwede na yung sabihin niya I
move, okay na sa akin yun. Parating mayroon tayong
ganyan sa Kongreso at sa Senado.)
The test of superior strength is the relative strength of the
offender and his victim and whether or not he took
advantage of his greater strength.
Now if there are several offenders participating by direct
participation and as of attack against the victim is
consented and intended to be so then there is abuse of
superior strength. There are many that we can cite and
all that you have to remember is that is the victim a
person who can match the strength of the others if not
then there will abuse of superior strength on the part of
other parties.
In the other aggravating circumstance that means are
employed in order to weaken the defense. It could be by
so many things that are adopted by the offender say for
example in a fight between two persons the other one
having seen sand and pick up an amount of sand and
threw it in the face of the other person actually blinding
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the eyes of the other person and taking advantage of the
person not being able to see. That is an act of weakening
the defense of the other person.
Sometimes, the offender had the intention to kill the
victim made the victim intoxicated or affected by some
medicines that are being used by some people so that
this people can sleep. You have probably heard those
who are visiting some pub houses some KTV bars or
other kind of establishment. It has already happened for
several times here in Makati. These people are sort of
visitors or if not visitors they are usually inhabiting some
of the clubs here in Makati drinking 2-3 bottles of beer
and they are always waiting for the victim when they see
the victim whom they feel have plenty of money they will
offer the victim a drink sometimes they are being refused
but if the person has already drunk so much he will
already accept. In his acceptance he will not know that a
drug that is already laced with Ativan- The Ativan gang.
The woman that has taken the drink slowly his eyes will
be droopy and these people take advantage of his being
without any or means to weaken his defense going to
the side of the offended party and two of them will say to
the bartender barkada namin to hahatid naming to sa
sasakyan kelagan lang nito mag pahinga and because
of the pretentions of the offender instead of going to the
car of the offended party they will go their car and drove
away with the offended party in an uninhabited places or
where they can divest the person of all the things in the
victims possession (money, jewelry, etc.)
Now, when the offended party regains consciousness, he
will immediately go to the police to ask who are the two
people who brought him there. But they will not know who
the two people are, so they will use torture. Anti-Torture
Law. (??? Sorry it doesnt make sense, but thats what he
said.)
These are the cases we handle. Sometimes, tinubig
where they are made to drink 2-3 shots but the other
party is merely drinking water. There are people who
uses means and methods to weaken the defense of the
people which is an aggravating circumstance)
Article 14. Aggravating circumstances. The
following are aggravating circumstances:
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16. That the act be committed with treachery
(alevosia).
There is treachery when the offender commits any of
the crimes against the person, employing means,
methods, or forms in the execution thereof which
tend directly and specially to insure its execution,
without risk to himself arising from the defense
which the offended party might make.
TREACHERY
If the act is committed with treachery or alevosia, the
offender commits any of the crimes AGAINST PERSONS
ONLY HA, employs methods which tends to directly
secure the commission without risk to himself arising
from the defense of the offended party, this is treachery.
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Now, treachery may not be only present prior to the
commission of the crime. Yes. Treachery also may be
present during, shall we call it, during the commission of
the crime when there is, shall we call it, a period, which
may allow the offender, to, shall we call it, make some
kind of, acts that would tend to ensure that he is, sure of
committing the offense that he intends to commit.
Actually, sometimes there is a persistence of a fight (?)
but in the second stage, there is already treachery.
One example of this is a case already decided by the
Supreme Court, regarding a victim who is a member of
the crew of the ship. He, shall we call it, created a serious
disturbance in the ship, and, he, assaulted and attacked
other members of the crew, when he has already been
attacking almost several members of the crew, the crew,
shall we call it, were able to subdue him, and tied him
and placed him at the corner of the ship, and informed
other shall we call it, chief mate (?) that this crewmember
has created a disturbance attacking almost everybody.
The chief mate (?) arrived and seeing a piece of iron bar
along the spot, he picked up the piece of iron bar, and
while the person is tied up, and is defenseless, he hit the
victim with that iron bar, causing the death of the victim.
According to the Supreme Court, the act that was
committed by the chief mate actually speaks of treachery
in the second stage of the incident, which is a qualified
aggravating circumstance.
Now, a sudden attack sometimes is treacherous. But not
all, ha. Because sometimes, if there has already been a,
shall we call it, fight between two persons, sometimes,
some people, are adapting to a sudden attack, not only
sudden attack by trying to protect that they are not going
to attack the person they intend to.and if that person is
attacked, there will be treachery. One example of that is
when some, shall we call it, basketball players had either
an altercation because of the rough plays of the other
team.
Now, it was by some of those persons who were
watching the basketball game. Both of the members of
the team went to a nearby sari-sari store to drink
softdrinks. But this guy, who was a victim of one of the
rough plays of the other side, cannot take it. He went to
his bag, and took his, shall we call it, bladed instrument,
and wrapped it in a towel. When he was already in the
store, he ordered a bottle of Coke and he was able to
drink a part of it and placed the bottle of Coke on top of
the table. And beside him, actually fronting him, was the
one who was making a rough play in basketball. You
know what he did? He was holding his towel as if there
was nothing in it. He was wiping his face, and wiping his
part of the body when feels that the person is not
anymore, shall we call it, ready to defend himself, he
stabbed him with his short bladed instrument which was
wrapped in a towel. That is why you would not be able to
see whether there is something in the towel or not.
When he felt that the person is not anymore ready to
defend himself, he stabbed him with a weapon wrapped
in a towel (that is why there is treachery because the
weapon is hidden). That is treachery because the person
cannot make any defense in that situation. Not only is
that treacherous, but also there is the presence of evident
premeditation.
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Treachery is appreciated even if the crime against the
person is complexed with another crime involving a
different classification in the Code. Thus, in a special
complex crime of robbery with homicide, a treachery can
be appreciated in so far as the killing is concerned. Not in
robbery. Ipapasok yung treachery sa homicide, not in
robbery. Hindi naman crime against persons yun, crime
against property yun.
The suddenness of death does not in itself
constitute treachery even if the purpose was to kill, so
long as the decision was made all of a sudden and the
victims helpless position was accidental. However, if it is
adopted in order that the victim may be caught by
surprise and he will not be able to make any defense for
himself, then there is treachery. Treachery applies in the
killing of a child who is less than nine (9) years old.
Usually children, if there is an adult, we believe that the
adult will protect him instead of harm him.
ROLE OF PAO
As a general rule, the PAO defends the accused and
NOT the victim. However, according to a DOJ
Memorandum Circular, it is possible for PAO to also help
victims. However, this is possible only when victims go to
them that PAO may help to initiate a case, although the
Prosecutors Office will handle the processing of the
information.
CONTINUOUS TREACHERY
If the attack is continuous and the fatal wound was
inflicted at the final stage thereof, treachery, to be
appreciated, must be present at the beginning of the
assault.
If the deceased was shot while lying wounded on the
ground, and the firing of the shot was a mere continuation
of an assault already earlier began, and the deceased
was wounded, with an appreciable period of time
intervening between the delivery of the blows constituting
the first attack and the firing of the shot (i.e., the ultimate
fatal attack), it appears that the killing was attempted or
committed with treachery.
The act of shooting those who are already lying on the
ground in the first place or already kneeling on the
ground is considered treachery.
TREACHERY IN RELATION TO POLICE OFFICERS
If, for example, the person did not make any resistance or
assault at all to the peace officer, because the person is
already handcuffed and has no means of making an
assault, it is treacherous to shoot him.
The police are always saying that the deceased seriously
resisted and drew a gun. But it has consistently been
held that the mere drawing of a gun is not unlawful
aggression. There may be aggression, but this is not
unlawful aggression yet. This is because there is no
assured imminent danger yet. From the point of view of
the police now, though, the mere drawing of a gun
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entitles them to defend themselves, as this is already
unlawful aggression. In the opinion of Judge P, this is
WRONG. A policeman must always first check whether
or not his life will truly be placed in imminent danger. If
his life is not yet in imminent danger, a policeman should
not shoot the drawer of the gun. The policeman should
instead immobilize the gunman so that the gunman can
be arrested.
What is taught today to police is wrong police cannot
just shoot just because, and cannot shoot at those they
arrest without actual sign or fear of danger.
NON-CONTINUOUS ASSAULT
If the assault is not continuous, and there is no
interruption, it is sufficient that treachery was present at
the moment the fatal, final blow was given. Thus, if the
other party is already disabled or defenseless, if ever the
offender still attacks, then ther
is treachery.
TREACHERY AND IDENTITY OF THE VICTIM
Treachery should not be considered when the victim was
not predetermined, but there was a generic intent to
treacherously kill any persons belonging to a class. The
same rule as that in evident premeditation applies.
If there is aberratio ictus or mistake in the blow, and the
offenders bullet, for example, hits a person different from
that whom he intended to hit, there is no treachery. This
is because the person you hoped to treacherously kill
was not actually hit.
Perhaps another aggravating circumstance may be found
in order to charge the offender with murder.
When there is error in personae, there is also no
application of treachery in the killing.
AGGRAVATING CIRCUMSTANCES ABSORBED BY
TREACHERY
As regards the different aggravating circumstances that
treachery absorbs treachery absorbs the following:
1. Craft
2. Abuse of superior strength
3. Employing means or method to weaken the defense
4. Band
5. With aid of armed men
6. Nighttime
All these are absorbed by treachery.
OTHER INSTANCES OF APPLICABILITY OF
TREACHERY
There are other instances in which treachery may be
applicable. Sometimes, if the person is already
defenseless, and the offender is still assaulting and
attacking him, then the offenders actions are treacherous
in nature.
Article 14. Aggravating circumstances. The
following are aggravating circumstances:
xxx
17. That means be employed or circumstances
brought about which add ignominy to the natural
effects of the act.
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IGNOMINY
Ignominy is the aggravating circumstance that is
appreciated when the accused deliberately perpetrates
an ignominious act to agument the moral suffering of the
victim.
People v. Torrefiel (CA) (45 OG 8803)
Facts: When the offender raped the woman, he wound a
piece of cogon grass around his penis.
Held: The act of the offender was for the purpose of
humiliating or shaming the victim. This was considered
ignominy, as it involved the performance of an act not
necessary to commit the crime of rape.
In my opinion, if the offender has for his purpose to inflict
pain upon the victim, that is cruelty. Thus, there can be
two interpretations to that particular case. Either cruelty
or ignominy, depending on the circumstances of the
case.
Sometimes, in reading a case, use your imagination.
There are other circumstances that may affect the
commission of the crime, not only those stated in the
decision.
But to me if ever the offender has for his purpose to inflict
paion upon the victim that is cruelty. So that could be the
interpretation of that provision. It could either be ignominy
or cruelty, depending on the circumstances of the case.
So sometimes in reading a case, use your imagination,
because there are other circumstances that may affect
the commission of the crime, not just those that were
stated in the decision.
Article 14. Aggravating circumstances. The
following are aggravating circumstances:
xxx
18. That the crime be committed after an unlawful
entry.
Unlawful entry must be a means of entrance and not
escape. The reason why unlawful entry is an aggravating
circumstance is because of a showing of a greater
perversity and audacity, and hence the law punishes him
with more severity.
There was a case that happened, a crime against
persons, because it does not apply to crimes against
property, because it is an inherent element of crime of
robbery. It was a case of a
Case:
The Governor Peralta of Tarlac was informed by the
caretaker of a house that their airconditioning was pulled
out for repair. At that time, he was left in the room.
Unknown to him, the offender entered through the open
port of the airconditioning unit, and he was able to shoot
and kill Governor Peralta. He also exited through that
particular open space. When that person was
apprehended, the aggravating circumstance of unlawful
entry was being questioned by the lawyer. The SC said
that is unlawful entry, thus aggravating with the other
circumstances alleged in the information.
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Article 14. Aggravating circumstances. The
following are aggravating circumstances:
xxx
19. There is an unlawful entry when an entrance is
effected by a way not intended for the purpose.
Par. 19, different from Unlawful Entry, that a wall, roof,
door or a window be broken as a means of committing a
crime.
Inherent in robbery but it is not inherent in crimes against
persons. It is an aggravating circumstance. Note that it is
ONLY aggravating when entrance is done when there is
a breaking of a wall, door etc. Not applicable when the
offender escapes or exits the premises by breaking a
wall, roof, floor, door etc. Naturally, hell do everything he
can to not get caught
Article 14. Aggravating circumstances. The
following are aggravating circumstances:
xxx
20. That the crime be committed with the aid of
persons under eighteen (no longer fifteen) years of
age, or by means of motor vehicle, motorized
watercraft, airships, or other similar means
Back then, when one was under fifteen, one can already
be prosecuted for a crime that has been committed
because he might have acted with discernment.
Under fifteen and over nine years old, in the old law, the
person should be determined to have acted with
discernment before his conviction.
Right now, I dont believe that a person has to be over
fifteen and under eighteen in order to have the ability to
act with discernment. Because if fifteen years old and
below, the person will be exempted. What will happen
then if he is apprehended by the police?
There will be a certificate of live birth issued by the NSO
showing that the person apprehended is only fourteen
years or over fourteen but not yet fifteen. A proof that
cannot be controverted, no matter what the police say.
R.A. No. 10630, over twelve but under fifteen years of
age, cut off is the fifteenth birthday of the person,
although exempted, the person may still be confined in
the facility of Bahay Pag-asa for not less than one year.
The law states not less than one year so it means one
year or more.
If heinous crimes are committed or the offender is a
repeat offender, then Bahay Pag-asa is their
destination. Bahay Pag-asa is different from Boys
Town. Boys Town or Girls Town are for those who are
over fifteen but under eighteen or even under twenty-one.
Barangay is not concerned, except for profits. Will
actually create parking slots, saying that the Barangay
chairman decreed it. Parking will actually encroach on
your land, and if you ask them to leave, barangay tanod
will say it is allowed.
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It should be less than 18 years old. Even if there is no
intent to kill, when you use a motor vehicle that caused
the death of others, it is murder.
USE OF MOTOR VEHICLE AS MEANS TO COMMIT A
FELONY
Case
Facts: X, a driver of a jeepney, wanted to overtake a
habal-habal driven by Y, in the rural areas of Cagayan de
Oro. X kept on honking his horn to signal that he wanted
to overtake Y, but Y, instead of heeding X, accelerated.
Vexed at Y, and to make Y move faster, X lightly, but
intentionally, bumped the rear portion of the habal-habal
of Y. Because the road was winding, however, Ys habal-
habal careened & fell off a ravine, resulting in the death
of 1 passenger & serious physical injuries for the rest.
What is X liable for?
Held: This is murder, with frustrated murder for those with
injuries. Where a crime is committed with the use of a
vehicle, in accordance with Article 14, par. 20 of the RPC,
though there is no intent on the part of the offender to kill
the victims, there was an unlawful act committed (the
bumping of the rear). The aggravating circumstance of
the use of vehicle qualifies the crime to murder, as well
as multiple frustrated murder.
The driver of the habal habal lost control of the wheels,
resulting to the habal habal falling into deep precipice in
one of the hills of CDO and, eventually, (1) the death of a
passenger and (2) serious physical injuries to the rest, (3)
total damage to the property. The police charged the
driver with reckless imprudence resulting to homicide and
serious physical injuries and damage to property.
However, the prosecutor issued a resolution, claiming
that on the basis of Art. 14(20), the crime committed was
murder, because the means used was a motor vehicle.
According to him, even if there is no intention to kill any of
the victims but because there was use of a motor vehicle
(jeepney) in bumping the habal habal from the rear
(which is the unlawful act), the crime committed was
murder and multiple frustrated murder.
The accused, after having been arrested, went to the SC
questioning the prosecutors findings (which were
affirmed by the RTC).
SC said that the prosecutor and RTC are correct. The
crime committed was murder, because the act that was
committed by the jeepney driver, in bumping the rear of
the habal habal, is unlawful. While there is no intent to
kill, there was still deliberate intent on his part to bump
the habal habal, the aggravating circumstance of use of
motor vehicle as a means of committing a crime
APPLIES. Therefore, the crime committed was murder.
Case
There was a drinking spree involving drivers of delivery
vans in Subic. The Philippine Navy officers who made the
driver of the van drink, just left the driver without paying
or leaving tip. Driver of van was so pissed, he ran over all
the Philippine Navy officers. Driver of van found guilty of
double murder and multiple frustrated murder, sentenced
to reclusion perpetua.
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Article 14. Aggravating circumstances. The
following are aggravating circumstances:
xxx
21. That the wrong done in the commission of the
crime be deliberately augmented by causing other
wrong not necessary for its commission.
were signs of torture. A: I will file two cases against the
offenders Murder under the RPC and Torture under the
Anti-Torture Act. The penalty that may be imposed in
both cases is not offset by the other. The two are
independent cases. If you read the law on torture, these
cases may co-exist without a person being placed under
double jeopardy.

Examples:
cruelty
scoffing at the corpse of the victim
beheading a victim (especially if still alive)
certain cases where after the victim is
apprehended, he will be lifted via helicopter, then
while traveling they will drop the body in the middle
of the ocean. This is NOT piracy. This is one way
of committing cruelty.
While victim is handcuffed, the accused shoots
him, plus commits acts of torture. Cruelty is
present here. Judge P: As the prosecutor,
considering there are signs of torture, I will file two
cases: 1) Murder under Art. 248, and 2) torture
under the Anti-Torture Act. The penalty that may
be imposed in both cases cannot be offset by the
other one. The two are independent cases. They
can co-exist without the person being placed
under double jeopardy.

That is one of the aggravating circumstances that may be

present in that case if it is true. If that really happens,
cruelty is present.

Q: If I were the prosecutor, what am I going to do? There

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