criminal law memory aids

 

 

BOOK ONE

 

CRIMINAL LAW - that branch or division of law which defines crimes, treats of their nature and provides for their punishment.

 

CHARACTERISTICS OF CRIMINAL LAW

1.      GENERAL - it is binding on all persons who live or sojourn in the Philippine territory (Art. 14, NCC)

EXCEPTIONS:

a)      Treaty stipulations

b)      Laws of preferential application

c)       Principles of Public International Law.

The following persons are exempted:

a.      Sovereigns and other chief of state

b.      Ambassadors,ministers, plenipotentiary,         minister resident            and                   charges d’affaires.

 

Ø  Consuls, vice-consuls and other commercial representatives of foreign nation cannot claim the privileges and immunities accorded to ambassadors and ministers.

 

2.      TERRITORIAL – penal laws of the Philippines are enforceable only within its territory.

EXCEPTIONS:    (Art.    2,    RPC)    i.e.,

enforceable even outside Philippine territory.

1)      Offense committed while on a Philippine ship or airship

2)      Forging or counterfeiting any coin or currency note of the Philippines or obligations and securities issued by the Government.

3)      Introduction into the country of the above-mentioned obligations and securities.

4)      While being public officers or employees should commit an offense in the exercise of their functions.

5)      Should commit any of the crimes against national security and the law of nations defined in Title One of Book Two.

EXCEPTION     TO    THE    EXCEPTION:

Penal laws not applicable within or without Philippine territory if so provided in treaties and laws of preferential application. (Art.2, RPC)

 

3.      PROSPECTIVE

MEMORY AID IN CRIMINAL LAW

 

GENERAL RULE: Penal laws cannot make an act punishable in a manner in which it was not punishable when committed.

EXCEPTION: (it may be applied retroactively) When the new law is favorable to the accused.

EXCEPTION TO THE EXCEPTION

a)      The new law is expressly made inapplicable to pending actions or existing causes of actions.

b)      Offender is a habitual criminal.

 

LIMITATIONS     ON     THE     POWER     OF CONGRESS TO ENACT PENAL LAWS:

1.      No ex post facto law shall be enacted

2.      No bill of attainder shall be enacted

3.      No law that violates equal protection clause of the constitution shall be enacted

4.      No law which imposes cruel and unusual punishments nor excessive fines shall be enacted.

 

THEORIES IN CRIMINAL LAW

1.      Classical Theory - basis of criminal liability is human free will. Under this theory, the purpose of penalty is retribution. The RPC is generally governed by this theory.

2.      Positivist Theory – basis of criminal liability is the sum of the social and economic phenomena to which the actor is exposed wherein prevention and correction is the purpose of penalty. This theory is exemplified in the provisions regarding impossible crimes and habitual delinquency.

3.      Eclectic or Mixed Theory – combination of positivist and classical thinking wherein crimes that are economic and social in nature should be dealt in a positive manner; thus, the law is more compassionate.

 

 

PRELIMINARY TITLE

 

? ART. 2 – APPLICATION OF ITS PROVISIONS

 

RULES ON VESSELS:

1.) Philippine vessel or aircraft.

Ø  Must be understood as that which is registered in the Philippine Bureau of Customs.

 

2.) On Foreign Merchant Vessels

Ø  ENGLISH RULE: Crimes committed aboard a vessel within the territorial waters of a country are triable in the courts of such country.

 

 

EXCEPTION: When the crimes merely affect things within the vessel or when they only refer to the internal management thereof.

 

Ø  FRENCH RULE:

GENERAL RULE: Crimes committed aboard vessel within the territorial waters of a country are not triable in the courts of said country.

EXCEPTION: When their commission affects the peace and security of the territory or when the safety of the state is endangered.

 

Ø  In the Philippines, we follow the English Rule.

 

Ø  In the case of a foreign warship, the same is not subject to territorial laws.

 

TITLE ONE: FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY

 

Chapter One: Felonies (Arts. 3-10)

 

? ART. 3 – FELONIES

 

Felonies – are acts or omissions punishable by the RPC.

 

ELEMENTS OF FELONIES (GENERAL)

1.      there must be an act or omission ie, there must be external acts.

2.      the act or omission must be punishable by the RPC.

3.      the act is performed or the omission incurred by means of dolo or culpa.

 

“NULLUM CRIMEN, NULLA POENA SINE

LEGE” - there is no crime where there is no law punishing it.

 

CLASSIFICATION OF FELONIES ACCORDING TO THE MEANS BY WHICH THEY ARE COMMITTED:

 

1.      Intentional Felonies – the act is performed with deliberate intent or malice.

Requisites of DOLO or MALICE:

a.    Freedom

b.     Intelligence

c.     Criminal Intent

 

Mistake of Fact – is a misapprehension of fact on the part of the person causing injury to another. Such person is not criminally liable as he acted without criminal intent.

Requisites of mistake of fact as a defense:

a.      That the act done would have been lawful had the facts been as the accused believed 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.

 

2.      Culpable Felonies - performed without malice.

Requisites of CULPA:

a.      Freedom

b.      Intelligence

c.       Negligence and Imprudence

 

Ø  REASON FOR PUNSHING ACTS OF NEGLIGENCE: A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful and prudent.

 

Mala Prohibita - the class of crimes punishable by SPECIAL LAWS and where criminal intent is not, as a rule, necessary, it being sufficient that the offender has the intent to perpetrate the act prohibited by the special law.

 

MALA IN SE MALA PROHIBITA 1. As to The moral trait The       moral moral is     considered. trait    of    the trait of Liability       will offender is not the arise only when considered. It offender there is dolo or is enough that   culpa. the prohibited     act           was     voluntarily     done. 2. As to Good faith or Good faith is use    of lack of criminal not a defense. good intent is a valid   faith as defense; unless   a the crime is the   defense result of culpa.   3. As to The degree of The act gives degree accomplishment rise to a crime of of the crime is only when it is accom- taken          into consummated. plish- account         in   ment of punishing     the   the crime offender.

MALA IN SE vs. MALA PROHIBITA

MEMORY AID IN CRIMINAL LAW

 

3.     

4. As to mitigati ng    and aggravat ing circum- stances Mitigating              and aggravating circumstances are taken into account        in imposing               the penalty. Mitigating and aggravating circumstances are    generally not taken into account. 5. As to degree of partici- pation When there is more than one offender, the degree         of participation of each in the commission of the crime is taken into account. Degree of participation is generally not taken into account.     All who participated in the    act    are punished     to the         same extent. 6. As to what laws are violated Violation of the RPC (General rule) Violation of Special Laws (General rule)

Praeter intentionem – lack of intent to commit so grave a wrong.

 

PAR. 2 (IMPOSSIBLE CRIME) REQUISITES:

a)      That the act performed would be an offense against persons or property.

b)      That the act was done with evil intent.

c)       That its accomplishment is inherently impossible, or that the means employed is either inadequate or ineffectual.

d)      That the act performed should not constitute a violation of another provision of the RPC.

 

 

?         ART. 6 – CONSUMMATED, FRUSTRATED & ATTEMPTED

FELONIES

 

 

 

Intent distinguished from Motive

INTENT	MOTIVE
1. Is the purpose  to use    a     particular means    to    effect such result	1. Is the moving power which impels one to act
2. Is an element of the crime, except in unintentional felonies (culpable)	2. Is NOT an  element of the crime
3. Is essential in intentional felonies	3. Is essential only when the identity of the perpetrator is in doubt

 

 

? ART. 4 – CRIMINAL LIABILITY

 

PAR. 1 - Criminal Liability for a felony different from that intended to be committed

 

REQUISITES:

a)      That an intentional felony has been committed.

b)      That the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed.

 

PROXIMATE CAUSE – that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred.

 

Thus, the person is still criminally liable in:

1.      Error in personae- mistake in the identity of the victim.

2.      Abberatio ictus – mistake in the blow.

STAGES OF EXECUTION:

1.      CONSUMMATED FELONY

Ø  When all the elements necessary for its execution and accomplishment are present.

 

2.       FRUSTRATED FELONY ELEMENTS:

a)      The offender performs all the acts of execution.

b)      All the acts performed would produce the felony as a consequence.

c)       But the felony is not produced.

d)      By the reason of causes independent of the will of the perpetrator.

 

WHAT CRIMES DO NOT ADMIT OF FRUSTRATED STAGE?

1)    Rape

2)    Bribery

3)    Corruption of Public Officers

4)    Adultery

5)    Physical Injury

 

3.       ATTEMPTED FELONY ELEMENTS:

a)      The offender commences the commission of the felony directly by overt acts.

b)      He does not perform all the acts of execution which should produce the felony.

c)       The offender’s acts are not stopped by his own spontaneous desistance.

 

 

 

DESISTANCE - is an absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime.

 

 

- this is applicable only in the attempted stage.

 

OVERT ACTS – Some physical activity or deed, indicating intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles, nor by voluntary desistance of the perpetrator will logically ripen into a concrete offense.

 

INDETERMINATE  OFFENSE:     One where

the purpose of the offender in performing an act is not certain. The accused maybe convicted for a felony defined by the acts performed by him up to the time of desistance.

 

2 STAGES IN THE DEVELOPMENT OF A CRIME:

1)    Internal acts

Ø  Such as mere ideas in the mind of person.

Ø  Not punishable.

2)      External acts cover:

a)      Preparatory acts - ordinarily not punished except when considered by law as independent crimes (e.g. Art. 304, Possession of picklocks and similar tools)

b)      Acts of Execution - punishable under the RPC

 

? ART. 7 – LIGHT FELONIES

 

Ø  Light Felonies are punishable only when they have been consummated EXCEPT: If committed against persons or property, punishable even if not consummated.

 

Ø  Only principals and accomplices are liable, accessories are not liable even if committed against persons or property.

 

 

? ART. 8 – CONSPIRACY AND PROPOSAL TO COMMIT FELONY

 

REQUISITES OF CONSPIRACY

1.      That 2 or more persons came to an agreement.

2.      That the agreement pertains to the commission of a felony.

3.      That the execution of the felony was decided upon.

 

2 CONCEPTS OF CONSPIRACY

1.      Conspiracy as a crime by itself.

EXAMPLE: conspiracy to commit rebellion or insurrection, treason, sedition.

2.      Conspiracy as a means of committing a crime

a)      There is a previous and express

agreement;

b)      The participants acted in concert or simultaneously which is indicative of a meeting of the minds towards a common criminal objective. There is an implied agreement.

 

GENERAL RULE: Mere conspiracy or proposal to commit a felony is not punishable since they are only preparatory acts

EXCEPTION: in cases in which the law specially provides a penalty therefor, such as in treason, coup d’etat, and rebellion or insurrection

 

“The act of one is the act of all” GENERAL   RULE:   When    conspiracy                     is established, all who participated therein, irrespective of the quantity or quality of his participation is liable equally, whether conspiracy          is         pre-planned         or instantaneous. EXCEPTION: Unless one or some of the conspirators committed some other crime which is not part of the intended crime.

EXCEPTION TO THE EXCEPTION: When the

act     constitutes     a    “single     indivisible offense”.

 

Ø  Conspiracy may be inferred when two or more persons proceed to perform overt acts towards the accomplishment of the same felonious objective, with each doing his act, so that their acts though seemingly independent were in fact connected, showing a common design.

 

Ø  These overt acts must consist of:

-         active participation in the actual commission of the crime itself, or

-         moral assistance to his co- conspirators by being present at the time of the commission of the crime, or

-          exerting a moral ascendance over the other co-conspirators by moving them to execute or implement the criminal plan (PEOPLE vs. ABUT, et al., GR No. 137601, April 24, 2003)

 

REQUISITES OF PROPOSAL:

1.      That a person has decided to commit a felony; and

2.      That he proposes its execution to

MEMORY AID IN CRIMINAL LAW

 

some other person or persons.

 

 

? ART. 9 – CLASSIFICATION OF FELONIES ACCORDING TO GRAVITY

 

Importance of Classification

1.      To determine whether these felonies can be complexed or not.

2.      To determine the prescription of the crime and the prescription of the penalty.

 

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 the Code.

 

Less grave felonies – are those which the law punishes with penalties which in their maximum period are correctional, in accordance with Art. 25 of the Code.

 

Light felonies – are those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 200 pesos, or both, is provided.

 

 

 

? ART. 10 – OFFENSES NOT SUBJECT TO THE PROVISIONS OF THE RPC

 

GENERAL RULE: RPC provisions are supplementary to special laws.

EXCEPTION:

1.      Where the special law provides otherwise; and

2.      When the provisions of the RPC are impossible of application, either by express provision or by necessary implication.

 

Thus, when the special law adopts the penalties imposed in the RPC, such as reclusión perpetua or reclusión temporal, the provisions of the RPC on imposition of penalties based on stage of execution, degree of participation, and attendance of mitigating and aggravating circumstances may be applied by necessary implication.

 

 

Chapter Two: Justifying Circumstances and Circumstances Which Exempt from Criminal Liability (Arts. 11-12)

? ART. 11. JUSTIFYING CIRCUMSTANCES JUSTIFYING  CIRCUMSTANCES  –  are those

where the act of a 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 both criminal and civil liability. There is no civil liability, except in par. 4 of Art. 11, where the civil liability is borne by the persons benefited by the act.

1. SELF- DEFENSE REQUISITES:

a)      Unlawful aggression (condition sine

qua non);

b)      Reasonable necessity of the means employed to prevent or repel it; and

c)       Lack of sufficient provocation on the part of the person defending himself.

 

 

 

UNLAWFUL AGGRESSION

-            is equivalent to an actual physical assault or, at least

-         threatened assault of an immediate and imminent kind which is offensive and positively strong, showing the wrongful intent to cause injury.

 

 

TEST  OF  REASONABLENESS  –  the means

employed depends upon the nature and quality of the (1) weapon used by the aggressor, and (2) his physical condition, character,  size  and  other circumstances,

(3) and those of the person defending himself, (4) and also the place and occasion of the assault.

 

 

Ø  Perfect equality between the weapons used by the one defending himself and that of the aggressor is not required, nor material commensurability between the means of attack and defense.

REASON: Because the person assaulted does not have sufficient tranquility of mind to think and to calculate.

 

 

Rights included in self-defense:

Self-defense includes not only the defense of the person or body of the one assaulted but also that of his rights, the enjoyment of which is protected by law. Thus, it includes:

1.      The right to honor. Hence, a slap on the face is considered as unlawful aggression directed against the honor of the actor (People vs. Sabio, 19 SCRA 901).

 

 

2.      The defense of property rights, only if there is also an actual and imminent danger on the person of the one defending ( People vs Narvaez, 121 SCRA 389).

 

“Stand ground when in the right” - the law does not require a person to retreat when his assailant is rapidly advancing upon him with a deadly weapon.

 

Under Republic Act 9262, known as the Anti- Violence against Women and their Children Act of 2004:

Victim-survivors who are found by the courts to be suffering from Battered Woman Syndrome do not incur any criminal or civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the RPC. (Sec. 26, R.A. No. 9262) The law provides for an additional justifying circumstance.

Battered Woman Syndrome – refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

Battery – refers to any act of inflicting physical harm upon the woman or her child resulting to physical and psychological or emotional distress.

2.   DEFENSE OF RELATIVES REQUISITES:

1.      Unlawful Aggression;

2.      Reasonable necessity of the means employed to prevent or repel it; and

3.      In case the provocation was given by the person attacked, the one making the defense had no part therein.

 

RELATIVES THAT CAN BE DEFENDED:

1.      Spouse

2.      Ascendants

3.      Descendants

4.      Legitimate, natural or adopted brothers and sisters, or relatives by affinity in the same degrees.

5.      Relatives by consanguinity within the fourth civil degree.

3. DEFENSE OF STRANGER REQUISITES:

1.      Unlawful Aggression;

2.      Reasonable necessity of the means employed to prevent or repel it; and

3.      The person defending be not induced by revenge, resentment or other evil motive.

4.      AVOIDANCE OF GREATER EVIL OR INJURY

 

REQUISITES:

1.          That the evil sought to be avoided actually exists:

2.          That the injury feared be greater than that done to avoid it; and

3.          There be no other practical and less harmful means of preventing it.

 

Ø  No civil liability except when there is another person benefited in which case the latter is the one liable.

 

Ø  Greater evil must not be brought about by the negligence or imprudence or violation of law by the actor.

 

5. FULFILLMENT OF DUTY; OR LAWFUL EXERCISE OF RIGHT OR OFFICE.

 

REQUISITES:

1.                That the accused acted in the performance of a duty or in the lawful exercise of a right or office;

2.                That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.

 

6. OBEDIENCE TO AN ORDER ISSUED 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

3.          That the means used by the subordinate to carry out said order is lawful.

 

Ø  Subordinate is not liable for carrying out an illegal order if he is not aware of its illegality and he is not negligent.

 

 

? ART. 12. EXEMPTING CIRCUMSTANCES

 

Exempting Circumstances (or the circumstances for non-imputability) – are those grounds for exemption from punishment, because there is wanting in the agent of the crime any of the conditions which makes the act voluntary, or negligent.

 

BASIS:

MEMORY AID IN CRIMINAL LAW

 

The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused.

 

JUSTIFYING CIRCUMSTANCE	EXEMPTING CIRCUMSTANCE
1. It affects the act not the actor.	1.    It    affects    the actor not the act.
2. The act is considered to have been done within the bounds of law; hence, legitimate and lawful in the eyes of the law.	2.            The act complained of is actually wrongful, but the actor is not liable.
3. Since the act is considered lawful, there is no crime.	3.      Since the act complained    of     is actually wrong there is a crime but since the     actor     acted without voluntariness, there is no dolo nor culpa
4. Since there is no crime, nor a criminal, there is also no criminal or civil liability. (except Art. 11, par. 4)	4. Since there is a crime committed though there is no criminal, there is civil liability.

 

1.       IMBECILITY OR INSANITY

Insanity or imbecility exists when there is a complete deprivation of intelligence or freedom of the will.

Ø  An insane person is not so exempt if it can be shown that he acted during a lucid interval. But an imbecile is exempt in all cases from criminal liability.

 

 

TWO TESTS OF INSANITY:

1.      Test of COGNITION – complete deprivation of intelligence in committing the crime.

2.      Test of VOLITION – total deprivation of freedom of will.

Ø  The defense must prove that the accused was insane at the time of the commission of the crime because the presumption is always in favor of sanity.

 

Ø  Insanity exists when there is a complete deprivation of intelligence in committing the act. Mere abnormality of the mental faculties will not exclude imputability. The accused must be "so insane as to be incapable of entertaining criminal intent." He must be deprived of reason and acting

without the least discernment because there is a complete absence of the power to discern or a total deprivation of freedom of the will. (PEOPLE vs. ANTONIO, GR No. 144266, November 27, 2002)

 

2.     PERSON UNDER NINE YEARS OF AGE

 

Ø  An infant under the age of nine years is absolutely and conclusively presumed to be incapable of committing a crime.

 

Ø  The phrase “under nine years” should be construed “nine years or less”

 

3.      PERSON OVER NINE YEARS OF AGE AND UNDER 15 ACTING WITHOUT DISCERNMENT.

 

Ø  Must have acted without discernment.

 

DISCERNMENT – mental capacity to fully appreciate the consequences of an unlawful act.

Discernment maybe shown by:

a)       The manner the crime was committed: or

b)       The conduct of the offender after its commission.

 

4.      ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT

 

Ø  Basis: Lack of negligence or intent.

 

ELEMENTS:

1.       A person is performing a lawful act;

2.       With due care;

3.      He causes injury to another by mere accident;

4.      Without fault or intention of causing it.

 

5.      A PERSON WHO ACTS UNDER THE COMPULSION OF AN IRRESISTABLE FORCE

 

ELEMENTS:

1.          That the compulsion is by means of physical force.

2.          That the physical force must be irresistable.

3.          That the physical force must come from a third person.

 

Ø  Basis: complete absence of freedom or voluntariness.

 

Ø  The force must be so irresistable as to reduce the actor to a mere instrument

 

 

who act not only without will but against his will.

6. UNCONTROLLABLE FEAR ELEMENTS:

1.      That the threat which causes the fear

is of an evil greater than, or at least equal to, that which he is required to commit;

2.      That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it.

 

Ø  Duress as a valid defense should be based on real, imminent, or reasonable fear for one’s life or limb and should not be speculative, fanciful, or remote fear.

 

“ACTUS ME INVITO FACTUS NON EST

MEUS ACTUS” – An act done by me against my will is not my act.

 

7. INSUPERABLE CAUSE.

 

INSUPERABLE CAUSE – some motive which has lawfully, morally or physically prevented a person to do what the law commands.

 

ELEMENTS:

1.      That an act is required by law to be done.

2.      That a person fails to perform such act.

3.      That his failure to perform such act was due to some lawful or insuperable cause.

 

Examples:

a.      The municipal president detained the offended party for three days because to take him to the nearest justice of the peace required a journey for three days by boat as there was no other means of transportation. (US vs. Vicentillo, 19 Phil. 118)

The distance which required a journey for three days was considered an insuperable cause.

Note: Under the law, the person arrested must be delivered to the nearest judicial authority at most within 18 hours (now 36 hours, Art. 125 RPC); otherwise, the public officer will be liable for arbitrary detention.

 

b.      A mother who at the time of childbirth was overcome by severe dizziness and extreme debility, and left the child in a thicket were said child died, is not liable for infanticide because it was

physically impossible for her to take home the child. (People vs. Bandian, 63 Phil. 530).

The severe dizziness and extreme debility of the woman constitute an insuperable cause.

 

ABSOLUTORY CAUSES - are those where the act committed is a crime but for reasons of public policy and sentiment, there is no penalty imposed.

 

 

Other absolutory causes:

1.      Spontaneous desistance (Art. 6)

2.      Accessories who are exempt from criminal liability (Art. 20)

3.      Death or physical injuries inflicted under exceptional circumstances (Art. 247)

4.      Persons exempt from criminal liability for theft, swindling and malicious mischief (Art. 332)

5.      Instigation

 

Ø  Entrapment is NOT an absolutory cause. A buy-bust  operation conducted in connection with illegal drug-related offenses is a form of entrapment.

 

ENTRAPMENT	INSTIGATION
1. Ways and means            are resorted to for the capture             of lawbreaker in the execution of his criminal plan.	1.            Instigator induces the would- be accused to commit the crime, hence he becomes a co-principal.
2. not a  bar  to the prosecution and conviction of the lawbreaker	2. it will result in the acquittal of the accused.

 

Chapter Three: Circumstances Which Mitigate Criminal Liability

? ART.13 MITIGATING CIRCUMSTANCES MITIGATING    CIRCUMSTANCES    –   those

which if present in the commission of the

crime, do not entirely free the actor from criminal liability but serve only to reduce the penalty.

 

Ø  One single fact cannot be made the basis of more than one mitigating circumstance. Hence, a mitigating circumstance arising from a single fact, absorbs all the other mitigating circumstances arising from the same fact.

MEMORY AID IN CRIMINAL LAW

 

 

BASIS : Diminution of either freedom of action intelligence or intent or on the lesser perversity of the offender.

 

CLASSES	ORDINARY	PRIVILEGED
Source	Subsections 1-10 of Art. 13 (RPC)	Arts. 68, 69 and   64    of RPC
As to the effect	If not offset (by          an aggravating circumstanc e)    it    will operate    to have       the penalty imposed   at its minimum period, provided the penalty is a divisible one	It    operates to      reduce the penalty by   one   to two degrees depending upon    what the        law provides
As to offset	May         be offset       by aggravating circums- tance	Cannot     be offset

 

1.      INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES

 

Ø  Applies, when all the requisites necessary to justify the act are not attendant.

 

Ø  But in the case of “incomplete self- defense, defense of relatives, and defense of a stranger”, unlawful aggression must be present, it being an indispensable requisite.

 

2.      UNDER 18, OR OVER 70 YEARS OLD

 

Ø  It is the age of the accused at the time of the commission of the crime which should be determined. His age at the time of the trial is immaterial.

 

Legal effects of various ages of offender

1.          Nine (9) years of age and below – exempting circumstance. (Art. 12, par. 2)

2.          Over 9 but not more than 15 – exempting unless, he acted with discernment in which case penalty is reduced to at least two (2) degrees lower than that imposed. (Art. 12, par. 3; Art. 68, par. 1)

3.          Above 15 but under 18 - regardless of discernment, penalty is reduced by one (1) degree lower than that imposed. (Art. 68 par. 2)

4.          Minor delinquent under 18 years of age, sentence suspended (Art. 192, PD 603 as amended by PD 1179)

5.          18 years or over – full criminal responsibility.

6.          70 years or over – mitigating, no imposition of death penalty; if already imposed, execution of death penalty is suspended and commuted.

 

Ø  BASIS: diminution of intelligence

 

3.      NO INTENTION TO COMMIT SO GRAVE A WRONG

 

Rule for the application:

Can be taken into account only when the facts proven show that there is a notable and evident disproportion between the means employed to execute the criminal act and its consequences.

 

Ø  Intention     may    be    ascertained     by considering:

a)      the weapon used

b)      the part of the body injured

c)       the injury inflicted

 

Ø  BASIS : intent is diminished

 

4.      PROVOCATION OR THREAT

 

PROVOCATION – any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating any one.

 

REQUISITES:

1.      The provocation must be sufficient.

2.      It must originate from the offended party.

3.      The provocation must be immediate to the commission of the crime by the person who is provoked.

Ø  The threat should not be offensive and positively strong. Otherwise, the threat to inflict real injury is an unlawful aggression, which may give rise to self-defense.

5. VINDICATION OF GRAVE OFFENSE REQUISITES:

1.      That there be a grave offense done to the one committing the felony, his spouse, ascendants; descendants, legitimate, natural or adopted brothers or sisters or relatives by affinity within the same degrees;

2.      That the felony is committed in immediate vindication of such grave offense.

 

 

Ø 

- the offense need not be immediate. It is only required that the influence thereof lasts until the moment the crime is committed -must immediately precede             the commission of the crime.

“Immediate” allows for a lapse of time unlike in sufficient provocation, as long as the offender is still suffering from the mental agony brought about by the offense to him.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROVOCATION VINDICATION 1. It is made directly only to the person committing the felony. 1.          The    grave offense may be committed        also against              the offender’s relatives mentioned by law. 2. The cause that brought about the provocation need not be a grave offense. 2. The offended party must have done a grave offense to the offender or his relatives mentioned by law. 3. It is necessary that the provocation or                 threat immediately preceded the act. 3. The  vindication of the grave offense may be proximate, which admits of an INTERVAL of time.

5. PASSION OR OBFUSCATION It requires that:

1.      The accused acted upon an impulse.

2.      The impulse must be so powerful that it naturally produced passion or obfuscation in him.

 

REQUISITES:

1.      That there be an act, both unlawful and sufficient to produce such a condition of mind;

2.      That said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.

 

Ø  A mitigating circumstance only when the same arose from lawful sentiments.

 

Ø  BASIS: Loss of reasoning and self- control, thereby diminishing the exercise of his will power.

 

WHEN PASSION OR OBFUSCATION NOT

MITIGATING: When committed:

1.      In the spirit of lawlessness, or

2.     

PASSION/ OBFUSCATION PROVOCATION - produced by an impulse which may be caused by provocation -    the    provocation comes    from     the injured party.

In a spirit of revenge

7.     SURRENDER AND CONFESSION OF GUILT

 

REQUISITES OF VOLUNTARY SURRENDER:

1.      That the offender had not been actually arrested;

2.      That the offender surrendered himself to a person in authority or to the latter’s agent;

3.      That the surrender was voluntary.

 

WHEN SURRENDER VOLUNTARY

A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because:

1.      he acknowledges his guilt; or

2.      he wishes to save them the trouble and expense necessarily incurred in his search and capture.

 

 

 

REQUISITES OF VOLUNTARY PLEA OF GUILTY:

1.      That the offender spontaneously confessed his guilt.

2.      That the confession of guilt was made in open court, that is, before the competent court that is to try the case; and

3.      That the confession of guilt was made prior to the presentation of evidence for the prosecution.

Ø  BASIS: lesser perversity of the offender.

 

8.          PHYSICAL DEFECT OF OFFENDER

 

Ø  When the offender is deaf and dumb, blind or otherwise suffering from some physical defect, restricting his means of action, defense or communication with others.

 

Ø  The physical defect must relate to the offense committed.

 

Ø  BASIS: diminution of element of voluntariness.

 

9.          ILLNESS OF THE OFFENDER REQUISITES:

MEMORY AID IN CRIMINAL LAW

 

1.        That the illness of the offender must diminish the exercise of his will- power.

2.        That such illness should not deprive the offender of consciousness of his acts.

 

Ø  Includes illness of the mind not amounting to insanity.

 

Ø  BASIS: diminution of intelligence and intent.

 

10. SIMILAR AND ANALOGOUS CIRCUMSTANCES

 

EXAMPLES:

1)         Impulse of jealousy, similar to passion and obfuscation.

2)         Testifying for the prosecution, analogous to plea of guilty

 

 

Chapter Four: Circumstances which Aggravate Criminal Liability (Art. 14)

 

Aggravating circumstances – are those which, if attendant in the commission of the crime, serve to have the penalty imposed in its maximum period provided by law for the offense or change the nature of the crime.

 

BASIS:

They are based on the greater perversity of the offender manifested in the commission of the felony as shown by:

1.      the motivating power itself,

2.      the place of the commission,

3.      the means and ways employed

4.      the time, or

5.      the personal circumstances of the offender, or the offended party.

 

KINDS               OF               AGGRAVATING CIRCUMSTANCES:

 

1.      Generic – those which apply to all crimes, such as:

a)      Advantage      taken      of      public position;

b)      Contempt     or    insult    of    public authorities;

c)       Crime committed in the dwelling of the offended party;

d)      Abuse of confidence or obvious ungratefulness;

e)      Place where crime is committed;

f)       Nighttime, uninhabited place, or band;

g)       Recidivism (reincidencia);

h)      Habituality (reiteracion);

i)        Craft, fraud or disguise;

j)       Unlawful entry;

k)       Breaking of parts of the house;

l)        Use of persons under 15 years of age.

 

 

2.      Specific – those which apply only to specific crimes, such as ignominy in crimes against chastity and cruelty and treachery which are applicable only to crimes against persons.

a)      Disregard of rank, age or sex due the offended party;

b)      Abuse of superior strength or means be employed to weaken the defense;

c)       Treachery (alevosia);

d)      Ignominy;

e)      Cruelty;

f)       Use of unlicensed firearm in the murder or homicide committed therewith (RA 8294).

 

 

3.      Qualifying – those that change the nature of the crime.

Ø  Alevosia (treachery) or evident premeditation qualifies the killing of a person to murder.

Ø  Art. 248 enumerates the qualifying aggravating circumstances which quality the killing of person to murder.

 

 

4.      Inherent – those which of necessity accompany the commission of the crime, therefore not considered in increasing the penalty to be imposed, such as:

a)      Evident premeditation in robbery, theft, estafa, adultery and concubinage;

b)      Abuse of public office in bribery;

c)       Breaking of a wall or unlawful entry into a house in robbery with the use of force upon things;

d)      Fraud in estafa;

e)      Deceit in simple seduction;

f)       Ignominy in rape.

 

 

5.      Special – those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances, such as:

a)      Quasi-recidivism (Art. 160);

b)      Complex crimes (Art. 48);

c)       Error in personae (Art. 49);

 

 

d)      Taking advantage of public position and membership in an organized/syndicated crime group (Par.1[a], Art. 62).

 

GENERIC AGGRAVATING CIRCUMSTANCE	QUALIFYING AGGRAVATING CIRCUMSTANCE
As to its effect
Increases the penalty which should be imposed upon the accused to the maximum period but without exceeding the limit prescribed by law.	To give the crime its proper and exclusive name and to place the author thereof in such a situation as to deserve no other penalty than that specially prescribed by law for said crime.
As to whether it can be offset by a mitigating circumstance
May be offset by a mitigating circumstance.	Cannot be offset by a mitigating circumstance

 

RULES               ON              AGGRAVATING CIRCUMSTANCES

1.      Aggravating circumstances shall not be appreciated if:

a)      They constitute a crime specially punishable by law, or

b)      They are included by the law in defining a crime and prescribing a penalty therefor, shall not be taken into account for the purpose of increasing the penalty.

EXAMPLE: “That the crime be committed by means of

…fire,…explosion” (Art. 14, par. 12) is in itself a crime of arson (Art. 321) or a crime involving destruction (Art. 324). It is not to be considered to increase the penalty for the crime of arson or for the crime involving destruction.

2.      The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. (Art. 62, par. 2)

3.      Aggravating circumstances which arise:

a)      From the moral attributes of the offender, or

b)      From his private relations with the offended party, or

c)       From any personal cause,

shall only serve to aggravate the liability of the principals, accomplices and accessories as to whom such

circumstances are attendant. (Art. 62, par. 3)

4.      The circumstances which consist

a)      In the material execution of the act, or

b)      In the means employed to accomplish it,

shall serve to aggravate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. Except when there is proof of conspiracy in which case the act of one is deemed to be the act of all, regardless of lack of knowledge of the facts constituting the circumstance. (Art. 62, par. 4)

5.      Aggravating circumstances, regardless of its kind, should be specifically alleged in the information AND proved as fully as the crime itself in order to increase the penalty. (Sec. 9, Rule 110, 2000 Rules of Criminal  Procedure)

6.      When there is more than one qualifying aggravating circumstance present, one of them will be appreciated as qualifying aggravating while the others will be considered as generic aggravating.

 

 

? ART. 14 – AGGRAVATING CIRCUMSTANCES

 

Par. 1. – That advantage be taken by the offender of his public position.

 

Ø  Applicable only when the offender is a public officer.

Ø  The offender must have abused his public position or at least use of the same facilitated the commission of the offense.

Ø  This circumstance cannot be taken into consideration in offenses where taking advantage of official position is made by law an integral element of the crime, such as in malversation under Art. 217, or in falsification of a document committed by public officers under Art. 171.

Ø  Taking advantage of a public position is also inherent in the case of accessories under Art. 19, par. 3 (harboring, concealing, or assisting in the escape of the principal of the crime), and in crimes committed by public officers (Arts. 204-245).

MEMORY AID IN CRIMINAL LAW

 

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

 

REQUISITES OF THIS CIRCUMSTANCE:

1.      That the public authority is engaged in the exercise of his functions.

2.      That he who is thus engaged in the exercise of said functions is not the person against whom the crime is committed.

3.      The offender knows him to be a public authority.

4.      His presence has not prevented the offender from committing the criminal act.

 

Public authority – sometimes also called a person in authority, is a public officer who is directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws; like a  mayor, councilor, governor, barangay captain and barangay chairman.

 

Ø  A teacher or professor of a public or recognized private school is not a “public authority within the contemplation of this  paragraph. While he is a person in authority under Art. 152, that status is only for purposes of Art. 148 (direct assault) and Art. 152 (resistance and disobedience).

 

Par. 3 – That the act be committed

(1)   with insult or in disregard of the respect due the offended party on account of his (a) rank, (b) age, or (c) sex, or

(2)    that it be committed in the dwelling of the offended party, if the latter has not given provocation.

 

Ø  The four circumstances enumerated should be considered as one aggravating circumstance only.

Ø  Disregard of rank, age or sex is essentially applicable only to crimes against person or honor. They are not taken into account in crimes against property.

Ø  To be appreciated as an aggravating circumstance, there must be evidence that in the commission of the crime, the offender deliberately intended to offend or insult the sex, age and rank of the offended party.

Rank of the offended party – is the designation or title of distinction used to fix the relative position of the offended party in reference to others.

-   there must be a difference in the social condition of the offender and the offended party.

 

Age of the offended party – may refer to old age or the tender age of the victim.

 

Sex of the offended party – refers to the female sex, not to the male sex.

 

THE AGGRAVATING CIRCUMSTANCE OF DISREGARD OF RANK, AGE, OR SEX IS  NOT APPLICABLE IN THE FOLLOWING CASES:

1.      When the offender acted with passion and obfuscation.

2.      When there exists a relationship between the offended party and the offender.

3.      When the condition of being a woman is indispensable in the commission of the crime. (e.g. in parricide, abduction, seduction and rape)

 

Ø  Disregard of sex and age are not absorbed in treachery because treachery refers to the manner of the commission of the crime, while disregard of sex and age pertains to the relationship of the victim (People vs. Lapaz, March 31, 1989).

 

Dwelling – must be a building or structure, exclusively used for rest and comfort. A “combination of a house and a store” or a market stall where the victim slept is not  a dwelling.

-                      dwelling           includes dependencies, the foot of the staircase and enclosure under the house.

 

Ø  The aggravating circumstance of dwelling requires that the crime be wholly or partly committed therein or in any integral part thereof.

Ø  Dwelling does not mean the permanent residence or domicile of the offended party or that he must be the owner thereof. He must, however, be actually living or dwelling therein even for a temporary duration or purpose.

 

Ø  It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault from without.

 

 

WHAT AGGRAVATES THE COMMISSION OF THE CRIME IN ONE’S DWELLING:

1.      The abuse of confidence which the offended party reposed in the offender by opening the door to him; or

2.      The violation of the sanctity of the home by trespassing therein with violence or against the will of the owner.

 

MEANING OF PROVOCATION IN THE AGGRAVATING CIRCUMSTANCE OF DWELLING:

The provocation must be:

1.      Given by the owner of the dwelling,

2.      Sufficient, and

3.      Immediate to the commission of the crime.

 

Ø  If all these conditions are present, the offended party is deemed to have given the provocation, and the fact that the crime is committed in the dwelling of the offended party is not an aggravating circumstance.

REASON: When it is the offended party who has provoked the incident, he loses his right to the respect and consideration due him in his own house.

 

DWELLING IS NOT AGGRAVATING IN THE FOLLOWING CASES:

1.      When both the offender and the offended party are occupants of the same house, and this is true even if offender is a servant in the house.

Ø  EXCEPTION: In case of adultery in the conjugal dwelling, the same is aggravating. However, if the paramour also dwells in the conjugal dwelling, the applicable aggravating circumstance is abuse of confidence.

 

2.      When robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent.

Ø  But dwelling is aggravating in robbery with violence against or intimidation of persons because this class of robbery can be committed without the necessity of trespassing the sanctity of the offended party’s house.

 

3.      In the crime of trespass to dwelling, it is inherent or included by law in defining the crime.

 

4.      When the owner of the dwelling gave sufficient and immediate provocation.

Ø  There must exist a close relation between the provocation made by the victim and the commission of the crime by the accused.

 

5.      The victim is not a dweller of the house.

 

Par. 4. – That the act be committed with

(1)   abuse of confidence or

(2)   obvious ungratefulness.

 

Ø  Par. 4 provides two aggravating circumstances which, if present in the same case and must be independently appreciated.

Ø  While one may be related to the other in the factual situation in the case, they cannot be lumped together as abuse of confidence requires a special confidential relationship between the offender and the victim, but this is not so in ungratefulness.

 

 

REQUISITES OF ABUSE OF CONFIDENCE:

1.      That the offended party had trusted the offender.

2.      That the offender abused such trust by committing a crime against the offended party.

3.      That the abuse of confidence facilitated the commission of the crime.

Ø  Abuse of confidence is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315), and qualified seduction (Art. 337).

 

REQUISITES               OF               OBVIOUS UNGRATEFULNESS

1.      That the offended party had trusted the offender;

2.      That the offender abused such trust by committing a crime against the offended party.

3.      That the act be committed with obvious ungratefulness.

 

Ø  The ungratefulness contemplated by par. 4 must be such clear and manifest ingratitude on the part of the accused.

 

Par. 5 – That the crime be committed

(1)     in the palace of the Chief Executive, or in his presence, or

(2)    where public authorities are engaged in the discharge of their duties, or

(3)       in a place dedicated to religious worship.

MEMORY AID IN CRIMINAL LAW

 

Ø  Except for the third which requires that official functions are being performed at the time of the commission of the crime, the other places mentioned are aggravating per se even if no official duties or acts of religious worship are being conducted there.

 

Ø  Cemeteries, however respectable they may be, are not considered as place dedicated to the worship of God.

 

PAR. 5. Where public authorities are engaged in the discharge of their duties	PAR. 2. Contempt or insult to public authorities
In both Public authorities are in the performance of their duties
Place where public duty is performed
In their office.	Outside    of     their office.
The offended party
May or may not be the public authority	Public authority should not be the offended party

 

Par. 6. – That the crime be committed

(1)   in the nighttime, or

(2)   in an uninhabited place, or

(3)     by a band, whenever such circumstance may facilitate the commission of the offense.

 

Ø  When present in the same case and their element are distinctly palpable and can subsist independently, they shall be considered separately.

 

WHEN NIGHTTIME, UNINHABITED PLACE OR BAND AGGRAVATING:

1.      When it facilitated the commission of the crime; or

2.      When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or

3.      When the offender took advantage

thereof for the purpose of impunity.

 

Nighttime (obscuridad) – that period of darkness beginning at end of dusk and ending at dawn. Nights are from sunset to sunrise.

 

Ø  It is necessary that the commission of the crime was begun and completed at nighttime.

Ø  When the place of the crime is illuminated by light, nighttime is not aggravating.

 

GENERAL RULE: Nighttime is absorbed in treachery.

EXCEPTION: Where both the treacherous mode of attack and nocturnity were deliberately decided upon in the same case, they can be considered separately if such circumstances have different factual bases. Thus:

§   In People vs. Berdida, et. al. (June 30, 1966), nighttime was considered since it was purposely sought, and treachery was further appreciated because the victim’s hands and arms were tied together before he was beaten up by the accused.

§   In People vs. Ong, et. al. (Jan. 30, 1975), there was treachery as the victim was stabbed while lying face up and defenseless, and nighttime was considered upon proof that it facilitated the commission of the offense and was taken advantage of by the accused.

 

Uninhabited place (despoblado) – one where there are no houses at all; a place at a considerable distance from town, or where the houses are scattered at a great distance from each other.

 

Ø  What actually determines whether this aggravating circumstance should be considered against the accused, aside from the distance and isolation of the place, is the reasonable possibility of the victim receiving or securing aid from third persons.

 

Band (en cuadrilla) – whenever more than three (i.e., at least four) armed malefactors shall have acted together in the commission of an offense, it shall be deemed committed by a band.

Ø  The requisite four armed persons contemplated in this circumstance must all be principals by direct participation who acted together in the execution of the acts constituting the crime.

 

If one of them was a principal by inducement, there would be no cuadrilla but the aggravating circumstance of having acted with the aid of armed men may be considered against the inducer if the other two acted as his accomplice.

 

 

 

Ø  This aggravating circumstance is absorbed in the circumstance of abuse of superior strength.

Ø  This aggravating circumstance is not applicable in crimes against chastity.

 

Par. 7 – That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.

 

REASON FOR THE AGGRAVATION:

The debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune to despoil them. Therefore it is necessary that the offender took advantage of the calamity or misfortune.

 

Par. 8 – That the crime be committed with the aid of

(1)   armed men or

(2) persons      who      insure      or afford impunity.

 

REQUISITES:

1.      That armed men or persons took part in the commission of the crime, directly or indirectly.

2.      That the accused availed himself of their aid or relied upon them when the crime was committed.

 

Ø  This aggravating circumstance requires that the armed men are accomplices who take part in that minor capacity directly or indirectly, and not when they were merely present at the crime scene. Neither should they constitute a band, for then the proper aggravating circumstance would be cuadrilla.

 

 

WHEN             THIS             AGGRAVATING CIRCUMSTANCE SHALL NOT BE CONSIDERED:

1.      When both the attacking party and the party attacked were equally armed.

2.      When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose.

 

 

 

 

 

 

 

 

 

 

 

 

 

Ø 

Par. 6 “By a band” Par. 8. “With the aid of armed men” As to their number Requires more than three             armed malefactors (i.e., at least four) At least two As to their action Requires that more than three armed malefactors shall have acted together in the commission of an offense. This circumstance is present even if one of the offenders merely relied on their aid, for actual aid is not necessary.

If there are four armed men, aid of armed men is absorbed in employment of a band. If there are three armed men or less, aid of armed men may be the aggravating circumstance.

Ø  “Aid of armed men” includes “armed women.”

 

Par. 9 – That the accused is a recidivist.

 

REQUISITES:

1.      That the offender is on trial for an offense;

2.      That he was previously convicted by

final judgment of another crime;

3.      That both the first and the second offenses are embraced in the same title of the Code;

4.      That the offender is convicted of the new offense.

 

MEANING OF “at the time of his trial for one crime.”

It is employed in its general sense, including the rendering of the judgment. It is meant to include everything that is done in the course of the trial, from arraignment until after sentence is announced by the judge in open court.

 

Ø  Being an ordinary aggravating circumstance, recidivism affects only the periods of a penalty, except in prostitution and vagrancy (Art. 202) and gambling (PD 1602) wherein recidivism increases the penalties by degrees. No other generic aggravating circumstance produces this effect.

 

Ø  In recidivism it is sufficient that the succeeding offense be committed after the commission of the preceding offense provided that at the time of his trial for the second offense, the accused had already been convicted of the first offense.

MEMORY AID IN CRIMINAL LAW

 

Ø  If both offenses were committed on the same date, they shall be considered as only one, hence, they cannot be separately counted in order to constitute recidivism. Also, judgments of convicted handed down on the same day shall be considered as only one conviction.

REASON: Because the Code requires that to be considered as separate convictions, at the time of his trial for one crime the accused shall have been previously convicted by final judgment of the other.

Ø  To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copy of the sentences rendered against the accused.

 

Ø  Recidivism must be taken into account no matter how many years have intervened between the first and second felonies.

 

Ø  Even if the accused was granted a pardon for the first offense, but he commits another felony embraced in the same title of the Code, the first conviction is still counted to make him a recidivist since pardon does not obliterate the fact of his prior conviction.

The rule is different in the case of amnesty which theoretically considers the previous transgressions as not punishable.

 

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

 

REQUISITES of REITERACION or HABITUALITY:

1.      That the accused is on trial for an offense;

2.      That he previously served sentence for another offense to which the law attaches an

a)      Equal or

b)      Greater penalty, or

c)       For two or more crimes to which it attaches a lighter penalty than that for the new offense; and

3.      That he is convicted of the new offense

 

REITERACION	RECIDIVISM
As to the first offense

It is necessary that the offender shall have served out his sentence for the first offense	It is enough that a final judgment has been rendered in the first offense.
As to the kind of offenses involved
The previous and subsequent offenses must not be em braced in the same title of the Code.	Requires that the offenses             be included in the same title of the Code.

 

THE FOUR FORMS OF REPETITION ARE:

 

1.      Recidivism (par. 9, Art. 14) – where a person, on separate occasions, is  convicted of two offenses embraced in the same title in the RPC. This is a generic aggravating circumstance.

 

2.     Reiteracion or habituality (par. 10, Art.

14) – where the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two crimes to which it attaches a lighter penalty. This is a generic aggravating circumstance.

 

3.   Multi-recidivism or habitual delinquency (Art. 62, par, 5) – where a person within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification, is found guilty of the said crimes a third time or oftener. This is an extraordinary aggravating circumstance.

 

4.       Quasi-recidivism (Art. 160) – Where a person commits felony before beginning to serve or while serving sentence on a previous conviction for a felony. This is a special aggravating circumstance.

 

Ø  Since reiteracion provides that the accused has duly served the sentence for his previous conviction/s, or is legally considered to have done so, quasi-recidivism cannot at the same time constitute reiteracion, hence this aggravating circumstance cannot apply to a quasi-recidivist.

 

Ø  If the same set of facts constitutes recidivism and reiteracion, the liability of the accused should be aggravated by recidivism which can easily be proven.

 

Par. 11 – That the crime be committed in consideration of a price, reward or promise.

 

 

Ø  When this aggravating circumstance is present, there must be two or more principals, the one who gave or offered the price or promise and the one who accepted it, both of whom are principals.

 

Ø  If without previous promise it was given voluntarily after the crime had been committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty.

 

Ø  The price, reward or promise need not consist of or refer to material things or that the same were actually delivered, it being sufficient that the offer made by the principal by inducement be accepted by the principal by direct participation before the commission of the offense.

 

Par. 12 – That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin.

 

Ø  When           another           aggravating circumstance already qualifies the crime, any of these aggravating circumstances shall be considered as generic aggravating circumstance only.

 

Ø  A killing committed through any of these qualifies the crime to murder, except if arson was resorted to but without intent to kill, in view of P.D. 1613 which provides a specific penalty for that situation.

 

PAR. 12 “by means of inundation, fire, etc.”	PAR. 10 “on the occasion of a conflagration, shipwreck, etc.
The       crime       is committed          by means of any such acts  involving great waste or ruin.	The crime is committed on the occasion of a calamity              or misfortune.

 

Par. 13 – That the act be committed with evident premeditation

 

REQUISITES:

The prosecution must prove –

1.      The time when the offender determined to commit the crime;

2.      An act manifestly indicating that the culprit has clung to his determination; and

3.      A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will.

 

Ø  To establish evident premeditation, it must be shown that there was a period sufficient to afford full opportunity for meditation and reflection, a time adequate to allow the conscience to overcome the resolution of the will, as well as outward acts showing the intent to kill. It must be shown that the offender had sufficient time to reflect upon the consequences of his act but still persisted in his determination to commit the crime. (PEOPLE vs. SILVA, et. al., GR No. 140871, August 8, 2002)

 

Ø  The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent within a space of time sufficient to arrive at a calm judgment. (PEOPLE vs. ABADIES, GR No. 135975, August 14, 2002)

 

Ø  Evident premeditation is presumed to exist when conspiracy is directly established. When conspiracy  is merely implied, evident premeditation cannot be presumed, the latter must be proved like any other fact. (PEOPLE vs. SAPIGAO, et. al., GR No. 144975, June 18, 2003)

 

Ø  Premeditation is absorbed by reward or promise.

 

Ø  When the offender decides to kill a particular person and premeditated on the killing of the latter, but when he carried out his plan he actually killed another person, it cannot properly be said that he premeditated on the killing of the actual victim.

 

Ø  But if the offender premeditated on the killing of any person, it is proper to consider against the offender the aggravating circumstance of premeditation, because whoever is killed by him is contemplated in his premeditation.

 

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

MEMORY AID IN CRIMINAL LAW

 

 

Craft (astucia) – involved the use of intellectual trickery or cunning on the part of the accused.

- it is a chicanery  resorted to by the accused to aid in the execution of his criminal design. It is employed as a scheme in the execution of the crime.

 

Fraud (fraude) – insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design.

 

FRAUD	CRAFT
Where there is a direct inducement by insidious words or machinations, fraud is present.	The act of the accused done in order not to arouse the suspicion of the victim constitutes craft.

 

Ø  According to Justice Regalado, the  fine distinctions between “craft” and “fraud” would not really be called for as these terms in Art. 14 are variants of means employed to deceive the victim and if all are present in the same case, they shall be applied as a single aggravating circumstance.

 

Ø  Craft and fraud may be absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or they may co-exist independently where they are adopted for a different purpose in the commission of the crime.

 

Ø   For instance:

§   In People vs. San Pedro (Jan. 22, 1980), where the accused pretended to hire the driver in order to get his vehicle, it was held that there was craft directed to the theft of the vehicle, separate from the means subsequently used to treacherously kill the defenseless driver.

§   In People vs. Masilang (July 11, 1986) there was also craft where after hitching a ride, the accused requested the driver to take them to a place to visit somebody, when in fact they had already planned to kill the driver.

 

Disguise (disfraz) – resorting to  any device to conceal identity.

Ø  The test of disguise is whether the device or contrivance resorted to by the offender was intended to or did make identification more difficult, such as the use of a mask or false hair or beard.

 

Ø  The use of an assumed name in the publication of a libel constitutes disguise.

 

Par. 15 – That (1) advantage be taken of superior strength, or (2) means be employed to weaken the defense.

 

Ø  Par. 15 enunciates two aggravating circumstances, namely, that advantage was taken of superior strength, or that means were employed by the offender to weaken the defense of the victim, either of which qualifies a killing to murder.

 

MEANING OF “advantage be taken”:

To deliberately use excessive force that is out of proportion to the means for self- defense available to the person attacked. (PEOPLE vs. LOBRIGAS, et. al., GR No.

147649, December 17, 2002)

 

 

NO ADVANTAGE OF SUPERIOR STRENGTH IN THE FOLLOWING:

1.      One who attacks another with passion and obfuscation does not take advantage of his superior strength.

2.      When a quarrel arose unexpectedly and the fatal blow was struck at a time when the aggressor and his victim were engaged against each other as man to man.

 

Ø  For abuse of superior strength, the test is the relative strength of the offender and his victim, whether or not he took advantage of his greater strength.

 

Ø  When there are several offenders participating in the crime, they must all be principals by direct participation and their attack against the victim must be concerted and intended to be so.

 

Ø  Abuse of superior strength is inherent in the crime of parricide where the husband kills the wife. It is generally accepted that the husband is physically stronger than the wife.

 

 

Ø  Abuse of superior strength is also present when the offender uses a weapon which is out of proportion to the defense available to the offended party.

 

“by a band”	“abuse of superior strength”
The     element    of band is appreciated when the offense is committed by more than three armed malefactors regardless   of    the comparative strength     of     the victim or victims.	The gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims.
	Hence, what is taken into account here is not the number    of aggressors nor the fact that they are armed, but their relative physical strength vis-a vis the offended party.

 

Ø  Abuse of superior strength absorbs cuadrilla (“band”).

 

“Means employed to weaken defense” - the offender employs means that materially weakens the resisting power of the offended party.

Treachery (alevosia) – is present when the offender commits any of the crimes against 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.

 

 

REQUISITES OF TREACHERY:

1.      That at the time of the attack, the victim was not in a position to defend himself; and

2.      That the offender consciously adopted the particular means, method or form of attack employed by him.

 

Ø  The test of treachery is not only the relative position of the parties but, more specifically, whether or not the victim was forewarned or afforded the opportunity to make a defense or to ward off the attack.

 

RULES REGARDING TREACHERY:

1.      Applicable   only   to    crimes    against persons.

2.      Means, methods or forms need not insure accomplishment of crime.

3.      The     mode     of    attack     must     be consciously adopted.

 

Ø  Treachery is taken into account even if the          crime    against  the        person   is

EXAMPLES OF “means employed to weaken defense”

1.      Where one, struggling with another, suddenly throws a cloak over the head of his opponent and while in this situation he wounds or kills him.

2.      One who, while fighting with another, suddenly casts sand or dirt upon the latter eyes and then wounds or kills him.

3.      When the offender, who had the intention to kill the victim, made the deceased intoxicated, thereby materially weakening the latter’s resisting power.

 

Ø  This circumstance is applicable only to crimes against persons, and sometimes against person and property, such as robbery with physical injuries or homicide.

 

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

complexed with another felony involving a different classification in the Code. Accordingly, in the special complex crime of robbery with homicide, treachery but can be appreciated insofar as the killing is concerned.

Ø  The suddenness of attack does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental.

Ø  Treachery must be appreciated in the killing of a child even if the manner of attack is not shown. It exists in the commission of the crime when the adult person illegally attacks a child of tender years and causes his death.

 

WHEN MUST TREACHERY BE PRESENT:

When the aggression is continuous, treachery must be present in the beginning of the assault. (PEOPLE vs. MANALAD, GR No. 128593, August 14, 2002)

Ø  Thus, even if the deceased was shot while he was lying wounded

MEMORY AID IN CRIMINAL LAW

 

on the ground, it appearing that the firing of the shot was a mere continuation of the assault in which the deceased was wounded, with no appreciable time intervening between the delivery of the blows and the firing of the shot, it cannot be said that the crime was attended by treachery.

 

 

When the assault was not continuous, in that there was interruption, it is sufficient that treachery was present at the moment the fatal blow was given.

Ø  Hence, even though in the inception of the aggression which ended in the death of the deceased, treachery was not present, if there was a break in the continuity of the aggression and at the time of the fatal wound was inflicted on the deceased he was defenseless, the circumstance of treachery must be taken into account.

 

ALEVOSIA SHOULD BE CONSIDERED EVEN IF:

1.      The victim was not predetermined but there was a generic intent to treacherously kill any first two persons belonging to a class. (The same rule obtains for evident premeditation).

2.      There was aberratio ictus and the bullet hit a person different from that intended. (The rule is different in evident premeditation).

3.      There was error in personae, hence the victim was not the one intended by the accused. (A different rule is applied in evident premeditation). REASON FOR THE RULE: When there  is treachery, it is impossible for either the intended victim or the actual victim to defend himself against the aggression.

 

 

 

TREACHERY ABSORBS:

1.      Craft

2.      Abuse of superior strength

3.      Employing    means    to    weaken    the defense

4.      Cuadrilla (“band”)

5.      Aid of armed men

6.      Nighttime

 

Par. 17 – That means be employed or circumstances brought about which add

ignominy to the natural effects of the act.

 

Ignominy – is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime.

 

MEANING OF “which add ignominy to the natural effects thereof”

The means employed or the circumstances brought about must tend to make the effects of the crime more humiliating to victim or to put the offended party to shame, or add to his moral suffering. Thus it is incorrect to appreciate ignominy where the victim was already dead when his body was dismembered, for such act may not be considered to have added to the victim’s moral suffering or humiliation. (People vs. Carmina, G.R. No. 81404, January 28,

1991)

 

Ø  Applicable to crimes against chastity, less serious physical injuries, light or grave coercion, and murder.

 

Par. 18 – That the crime be committed after an unlawful entry.

 

Unlawful entry – when an entrance is effected by a way not intended for the purpose.

 

Ø  Unlawful entry must be a means to effect entrance and not for escape.

 

REASON FOR AGGRAVATION:

One who acts, not respecting the walls erected by men to guard their property and provide for their personal safety, shows a greater perversity, a greater audacity; hence, the law punishes him with more severity.

 

Par. 19 – That as a means to the commission of a crime, a wall, roof, floor, door, or window be broken.

 

Ø  This circumstance is aggravating only in those cases where the offender resorted to any of said means to enter the house. If the wall, etc., is broken in order to get out of the place, it is not an aggravating circumstance.

PAR. 19	PAR. 18
It      involves     the breaking (rompimiento)      of the       enumerated parts of the house.	Presupposes that there is no such breaking as by entry through             the window.

 

 

Ø  If the offender broke a window to enable himself to reach a purse with money on the table near that window, which he took while his body was outside of the building, the crime of theft was attended by this aggravating circumstance. It is not necessary that the offender should have entered the building.

 

Par. 20 – That the crime be committed

(1)   with the aid of persons under fifteen years of age, or

(2)    by means of motor vehicles, airships, or other similar means.

 

TWO        DIFFERENT        CIRCUMSTANCES GROUPED IN THIS PARAGRAPH:

1.      With the aid of persons under fifteen years of age:

Ø  Tends to repress, so far as possible, the frequent practice resorted to by professional criminals to avail themselves of minors taking advantage of their irresponsibility.

2.      By means of motor vehicles, airships, or other similar means:

Ø  Intended to counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed.

Ø  Use of motor vehicle is aggravating where the accused purposely and deliberately used the motor vehicle in going to the place of the crime, in carrying away the effects thereof, and in facilitating their escape.

 

MEANING OF “or other similar means” Should be understood as referring to motorized         vehicles             or              other             efficient means     of                transportation    similar   to automobile or airplane.

 

Par. 21 – That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission.

 

Cruelty – there is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing unnecessary physical pain in the consummation of the criminal act.

 

REQUISITES OF CRUELTY:

1.      That the injury caused be deliberately increased by causing other wrong;

2.      That the other wrong be unnecessary for the execution of the purpose of the offender.

 

Ø  Cruelty is not inherent in crimes against persons. In order for it to be appreciated, there must be positive proof that the wounds found on the body of the victim were inflicted while he was still alive in order unnecessarily to prolong physical suffering.

 

Ø  If the victim was already dead when the acts of mutilation were being performed, this would also qualify the killing to murder due to outraging of his corpse.

 

IGNOMINY (PAR.17)	CRUELTY (PAR. 21)
Involves         moral suffering	Refers to physical suffering

 

Ø  Unlike mitigating circumstances (par. 10, Art. 13), there is no provision for aggravating circumstances of a similar or analogous character.

 

? ART. 15 – ALTERNATIVE CIRCUMSTANCES

 

Alternative circumstances – are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission.

 

BASIS:

The nature and effects of the crime and the other conditions attending its commission.

 

THE ALTERNATIVE CIRCUMSTANCES ARE:

1.      Relationship;

2.      Intoxication; and

3.      Degree of instruction and education of the offender.

 

RELATIONSHIP

The alternative circumstance of relationship shall be taken into consideration when the offended party is the –

a)      Spouse,

b)      Ascendant,

c)       Descendant,

d)      Legitimate, natural, or adopted brother or sister, or

e)      Relative by affinity in the same degree of the offender.

MEMORY AID IN CRIMINAL LAW

 

OTHER RELATIVES INCLUDED:

1.      The relationship of stepfather or stepmother and stepson or stepdaughter.

REASON: It is the duty of the stepparents to bestow upon their stepchildren a mother’s/father’s affection, care and protection.

2.      The relationship of adopted parent and adopted child.

Ø  But the relationship of uncle and niece is not covered by any of the relationship mentioned.

 

WHEN RELATIONSHIP MITIGATING AND WHEN AGGRAVATING:

1.      As a rule, relationship is mitigating in crimes against property, by analogy to the provisions of Art. 332.

Ø  Thus, relationship is mitigating in the crimes of robbery (Arts. 294- 302), usurpation (Art. 312), fraudulent insolvency (Art. 314) and arson (Arts. 321-322, 325- 326).

 

2.      In crimes against persons –

a)      It is aggravating where the offended party is a relative of

I.      a higher degree than the offender, or

II.      when the offender and the offended party are relatives of the same level (e.g. brothers)

b)      But when it comes to physical injuries:

i.        It is aggravating when the crime involves serious physical injuries (Art. 263), even if the offended party is a descendant of the offender. But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement.

ii.        It is mitigating when the offense committed is less serious physical injuries or slight physical injuries, if the offended party is a relative of a lower degree.

iii.      It is aggravating if the offended party is a relative of a higher degree of the offender.

c)       When the crime is homicide or murder, relationship is aggravating even if the victim of the crime is a relative of a lower degree.

d)      In rape, relationship is aggravating where a stepfather raped his stepdaughter or in a case where a father raped his own daughter.

3.      In crimes against chastity, like acts of lasciviousness (Art. 336), relationship is always aggravating, regardless of whether the offender is a relative of a higher or lower degree of the offended party.

 

Ø  When the qualification given to the crime is derived from the relationship between the offender and the offended party, it is neither mitigating nor aggravating, because it is inseparable from and inherent in the offense. (e.g. parricide, adultery and concubinage).

 

WHEN INTOXICATION MITIGATING AND WHEN AGGRAVATING:

1.      Mitigating –

i.      If intoxication is not habitual, or

ii.      If intoxication is not subsequent to the plan to commit a felony.

2.      Aggravating –

i.      If intoxication is habitual, or

ii.      If it is intentional (subsequent to the plan to commit a felony).

 

TO BE ENTITLED TO THE MITIGATING CIRCUMSTANCE OF INTOXICATION, IT MUST BE SHOWN:

1.      That at the time of the commission of the criminal act, the accused has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of control, and

2.      That such intoxication is not habitual, or subsequent to the plan to commit the felony.

Ø  To be mitigating, the accused’s state of intoxication must be proved. Once intoxication is established by satisfactory evidence, in the absence of proof to the contrary, it is presumed to be non-habitual or unintentional.

 

Instruction or education

– as an alternative circumstance, does not refer only to literary but more to the level of intelligence of the accused.

-    refers to the lack of sufficient intelligence and knowledge of the full significance of one’s acts.

-     Low degree of instruction and education or lack of it is generally mitigating. High degree of instruction and education is aggravating, when the offender took advantage of his learning in committing the crime.

 

GENERAL RULE: Lack of sufficient education is mitigating.

EXCEPTIONS:

 

 

1.      Crimes against property (e.g. arson, estafa, theft, robbery)

2.      Crimes against chastity, and

3.      Treason – because love of country should be a natural feeling of every citizen, however unlettered or uncultured he may be.

 

 

TITLE TWO: PERSONS CRIMINALLY LIABLE FOR FELONIES

 

? ART. 16 – WHO ARE CRIMINALLY LIABLE

 

FOR GRAVE AND LESS GRAVE FELONIES

1.      Principals

2.      Accomplices

3.      Accessories

 

FOR LIGHT FELONIES

1.      Principals

2.      Accomplices

 

Ø  Accessories are not liable for light felonies.

REASON: In the commission of light felonies, the social wrong as well as the individual prejudice is so small that penal sanction is deemed not necessary for accessories.

 

Ø  The classification of the offenders as principal, accomplice, or an accessory is essential under the RPC. The classification maybe applied to special laws only if the latter provides for the same graduated penalties as those provided under the RPC.

 

TWO PARTIES IN ALL CRIMES

 

1.      Active subject (the criminal)

Ø  Art. 16 enumerates the active subjects of the crime.

2.      Passive subject (the injured party)

Ø  Is the holder of the injured right: the man, the juristic person, the group, and the State.

 

Ø  Only natural persons can be the active subject of crime because of the highly personal nature of the criminal responsibility.

 

Ø  However, corporation and partnership can be a passive subject of a crime.

 

Ø  Corpses and animals cannot be passive subjects because they have no rights that may be injured.

EXCEPTION: Under Art. 253, the crime of defamation may be committed if

the imputation tends to blacken the memory of one who is dead.

 

Ø  This article applies only when the offenders are to be judged by their individual, and not collective, liability.

 

 

? ART. 17 PRINCIPALS THE FOLLOWING ARE PRINCIPALS:

1.      Those who take a direct part in the execution of the act (PRINCIPAL BY DIRECT PARTICIPATION)

2.      Those who directly force or induce others to commit it (PRINCIPAL BY INDUCTION)

3.      Those who cooperate in the commission of the offense by another act without which it would not have been accomplished (PRINCIPAL BY INDISPENSABLE COOPERATION).

 

Par. 1 – Principals by direct participation

 

REQUISITES:

1.      That they participated in the criminal resolution; and

2.      That they carried out their plan and personally took part in its execution by acts which directly tended to the same end.

 

MEANING OF “personally took part in its execution”

That the principal by direct participation must be at the scene of the commission of the crime, personally taking part in its execution.

 

Par. 2 – Principals by induction

 

REQUISITES

1.      That the inducement be made directly with the intention of procuring the commission of the crime; and

2.      That such inducement be the determining cause of the commission of the crime by the material executor.

 

Ø  One cannot be held guilty of having instigated the commission of the crime without first being shown that the crime was actually committed (or attempted) by another.

Thus, there can be no principal by inducement (or by indispensable cooperation) unless there is a principal by direct participation. But there can be a principal by direct participation

MEMORY AID IN CRIMINAL LAW

 

without a principal by inducement (or by indispensable cooperation).

 

TWO WAYS OF BECOMING PRINCIPAL BY INDUCTION:

1.      By directly forcing another to commit a crime by –

a)      Using irresistible force.

b)      Causing uncontrollable fear.

Ø  In these cases, there is no conspiracy, not even a unity of criminal purpose and intention. Only the one using the force or causing the fear is criminally liable. The material executor is not criminally liable because of Art. 12, pars. 5 and 6 (exempting circumstances)

2.      By directly inducing another to commit a crime by –

a)      Giving of price, or offering of reward or promise.

Ø  The one giving the price or offering the reward or promise is a principal by inducement while the one committing the crime in consideration thereof is a principal by direct participation. There is collective criminal responsibility.

b)      Using words of command

Ø  The person who used the words of command is a principal by inducement while the person who committed the crime because of the words of command is a principal by direct participation. There is also collective criminal responsibility.

 

Ø  The inducement must precede the act induced and must be so influential in producing the criminal act that without it, the act would not have been performed.

 

Ø 

PRINCIPAL BY INDUCEMENT OFFENDER WHO MADE PROPOSAL TO COMMIT A FELONY In both   There is an inducement to commit a crime When liable

If the person who actually committed the crime had reason of his own to commit the crime, it cannot be said that the inducement was influential in producing the criminal act.

Becomes liable only when the crime is committed by the principal by direct participation.	The mere proposal to commit a felony is punishable            in treason or rebellion. However, the person to       whom      the proposal    is    made should not commit the crime, otherwise,          the proponent becomes a      principal      by inducement.
What kind of crime involved
Involves any crime	The proposal to be punishable must involve only treason or rebellion.

 

EFFECTS OF ACQUITTAL OF PRINCIPAL BY DIRECT PARTICIPATION UPON LIABILITY OF PRINCIPAL BY INDUCEMENT:

1.      Conspiracy is negatived by the acquittal of co-defendant.

2.      One cannot be held guilty of having instigated the commission of a crime without first being shown that the crime has been actually committed by another.

Ø  But if the one charged as principal by direct participation is acquitted because he acted without criminal intent or malice, his acquittal is not a ground for the acquittal of the principal by inducement. REASON FOR          THE    RULE:  In exempting circumstances, such as when the act is not voluntary because of lack of intent on the part of the accused, there is a crime committed, only that the accused is not a criminal.

 

Par. 3 – Principal by indispensable cooperation

 

REQUISITES:

1.      Participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; and

2.      Cooperation in the commission of the offense by performing another act, without which it would not have been accomplished.

 

 

MEANING OF “cooperation in the commission of the offense”

Means to desire or wish in common a thing. But that common will or purpose does not necessarily mean previous understanding, for it can be explained or inferred from the circumstances of each case.

 

Ø  If the cooperation is not indispensable, the offender is only an accomplice.

 

 

COLLECTIVE CRIMINAL RESPONSIBILITY

Ø  This is present when the offenders are criminally liable in the same manner and to the same extent. The penalty to be imposed must be the same for all.

Ø  Principals by direct participation have collective criminal responsibility. Principals by induction, except those who directly forced another to commit a crime, and principals by direct participation have collective criminal responsibility. Principals by indispensable cooperation have collective criminal responsibilities with the principals by direct participation.

 

INDIVIDUAL CRIMINAL RESPONSIBILITY

Ø  In the absence of any previous conspiracy, unity of criminal purpose and intention immediately before the commission of the crime, or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the act committed by him.

 

 

? ART. 18 ACCOMPLICES

Accomplices are persons who, not acting as principals, cooperate in the execution of the offense by previous and simultaneous acts, which are not indispensable to the commission of the crime.

 

They act as mere instruments who perform acts not essential to the perpetration of the offense.

 

REQUISITES:

1.      That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter his purpose;

2.      That he cooperates in the execution of the offense by previous or

simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and

3.      That there be a relation between the acts done by the principal and those attributed to the person charged as an accomplice.

 

Ø  Before there could be an accomplice, there must be a principal by direct participation.

Ø  The person charged as an accomplice should not have inflicted a mortal wound. If he inflicted a mortal wound, he becomes a principal by direct participation.

Ø  In case of doubt, the participation of the offender will be considered that of an accomplice rather than that of a principal.

 

 

? 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 acts:

 

1.      By profiting themselves or assisting the offender to profit by the effects of the crime.

2.      Assisting the offender to profit by the effects of the crime.

3.      By concealing or destroying the body of the crime to prevent its discovery.

 

Ø  In profiting by the effects of the crime, the accessory must receive the property from the principal. He should not take it without the consent of the principal. If he took it without the consent of the principal, he is not an accessory but a principal in the crime of theft.

 

TWO       CLASSES       OF       ACCESSORIES CONTEMPLATED IN PAR. 3 OF ART. 19

a)      Public officers who harbor, conceal or assist in the escape of the principal of any crime (not light felony) with abuse of his public functions.

 

Requisites:

1.      The accessory is a public officer.

2.      He harbors, conceals, or assists in the escape of the principal.

3.      The public officer acts with abuse of his public functions.

MEMORY AID IN CRIMINAL LAW

 

4.      The crime committed by the principal is any crime, provided it is not a light felony.

 

b)      Private persons who harbor, conceal or assist in the escape of the author of the crime who is guilty of treason, parricide, murder, or attempts against the life of the President, or who is known to be habitually guilty of some other crime.

 

Requisites:

1.      The accessory is a private person.

2.      He harbors, conceals or assists in the escape of the author of the crime.

3.      The crime committed by the principal is either:

i.      Treason,

ii.      Parricide,

iii.      Murder,

iv.      An attempt against the life of the President, or

v.      That the principal is known to be habitually guilty of some other crime.

 

Ø  Where the alleged principal is acquitted, it is neither proper nor possible to convict the defendant as an accessory. The responsibility of the accessory is subordinate to that of the principal in a crime

HOWEVER, conviction of an accessory is possible notwithstanding the acquittal of the principal, if the crime was in fact committed, but the principal was not held liable, because of an exempting circumstance (Art. 12), such as insanity or minority.

 

Ø  Neither the letter nor the spirit of the law requires that the principal be convicted before one may be punished as an accessory. As long as the corpus delicti is proved and the accessory’s participation as such is shown, he can be held criminally responsible and meted out the corresponding penalty (Inovero vs. Coronel, CA, 65 O.G. 3160).

 

Ø  The prescribed acts of the accessory under par. 2 must have been intended to prevent the discovery of the crime, hence, mere silence does not make one an accessory. If, however, the crime involved is a conspiracy to commit treason, his silence may hold him liable for misprision of treason (Art. 116) but as a principal thereof.

Ø  Where the accused misleads the authorities by giving them false information, such act is equivalent to concealment and he should be held as an accessory.

 

 

Anti-Fencing Law of 1979 Pres. Decree 1612

Fencing – is an act, with intent to gain, of buying, selling, receiving, possessing, keeping, or in any other manner dealing in anything of value which a person knows or should have known to be derived from the proceeds of the crime of robbery or theft.

 

Fence – is a person who commits the act of fencing. A fence who receives stolen property as above-provided is not an accessory but a principal in the crime defined in and punished by the Anti- Fencing Law.

Mere possession of anything of value which has been the subject of robbery or theft shall be prima facie evidence of fencing.

 

 

? ART. 20 – ACCESSORIES WHO ARE EXEMPT FROM CRIMINAL LIABLITY

 

Ø  The exemption provided for in this article is based on the ties of blood and the preservation of the cleanliness of one’s name, which compels one to conceal crimes committed by relatives so near as those mentioned in this article.

 

AN ACCESSORY IS EXEMPT FROM CRIMINAL LIABLITY WHEN THE PRINCIPAL IS HIS –

1.      spouse, or

2.      ascendant, or

3.      descendant, or

4.      legitimate, natural or adopted brother, sister or relative by affinity within the same degree.

 

ACCESSORY IS NOT EXEMPT FROM CRIMINAL LIABILITY EVEN IF THE PRINCIPAL IS RELATED TO HIM, IF SUCH ACCESSORY –

1.      profited by the effects of the crime, or

2.      assisted the offender to profit by the effects of the crime.

REASON: Because such acts are prompted not by affection but by a detestable greed.

 

Ø  Public officer contemplated in par. 3 of Art. 19 is exempt by reason of relationship to the principal, even if

 

 

such public officer acted with abuse of his official functions.

REASON: Ties of blood or relationship constitutes a more powerful incentive than the call of duty.

 

P.D. 1829 penalizes the act of any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases.

 

Ø  The benefits of the exception in Art. 20 do not apply to PD 1829.

 

TITILE THREE: PENALTIES

 

Chapter One: Penalties in General (Arts. 21-24)

 

Penalty – is the suffering that is inflicted by the State for the transgression of the law.

 

DIFFERENT JURIDICAL CONDITIONS OF PENALTY

1.      Must be productive of suffering, without however affecting the integrity of the human personality.

2.      Must be commensurate with the offense – different crimes must be punished with different penalties.

3.      Must be personal – no one should be punished for the crime of another.

4.      Must be legal – it is the consequence of a judgment according to law.

5.      Must be certain – no one may escape its effects.

6.      Must be equal for all.

7.      Must be correctional.

 

PURPOSE OF THE STATE IN PUNISHING CRIMES

The State has an existence of its own to maintain, a conscience to assert, and moral principles to be vindicated. Penal justice must therefore be exercised by the State in the service and satisfaction of a duty, and rests primarily on the moral rightfulness of the punishment inflicted.

 

Ø  The basis of the right to punish violations of penal law is the police power of the State.

 

THEORIES JUSTIFYING PENALTY:

1.      Prevention – to prevent or suppress the danger to the State arising from the criminal act of the offender.

2.      Self-defense – so as to protect society from the threat and wrong inflicted by the criminal.

 

3.      Reformation – the object of punishment in criminal cases is to correct and reform the offender.

 

4.      Exemplarity – the criminal is punished to serve as an example to deter others from committing crimes.

 

5.      Justice – that crime must be punished by the State as an act of retributive justice, a vindication of absolute right and moral law violated by the criminal.

 

THREE-FOLD     PURPOSE    OF    PENALTY UNDER THE CODE:

1.      Retribution or expiation – the penalty is commensurate with the gravity of the offense.

2.      Correction or reformation – shown by the rules which regulate the execution of the penalties consisting in deprivation of liberty.

3.      Social defense – shown by its inflexible severity to recidivists and habitual delinquents.

 

 

? ART. 21 – PENALTIES THAT MAY BE IMPOSED

 

A felony shall be punishable only by the penalty prescribed by law at the time of its commission.

Ø  It is a guaranty to the citizen of this country that no acts of his, will be considered criminal until the Government has made it so by law and has provided a penalty.

Ø  REASON: Because a law cannot be rationally obeyed unless it is first shown, and a man cannot be expected to obey an order  that has not been given.

 

 

? ART. 22 – RETROACTIVE EFFECT OF PENAL LAWS

 

Ø  GENERAL RULE: Penal laws are applied prospectively.

EXCEPTION: When retrospective application will be favorable to the person guilty of a felony; Provided that:

 

1.      The offender is NOT a habitual criminal (delinquent) under Art. 62(5);

MEMORY AID IN CRIMINAL LAW

 

2.      The new or amendatory law does NOT provide against its retrospective application.

 

Habitual delinquent – a person who, within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification, is found guilty of any said crimes a third time or oftener.

 

EX POST FACTO LAW

An act which when committed was not a crime, cannot be made so by statute without violating the constitutional inhibition as to ex post facto laws. An ex post facto law is one which:

1.      Makes criminal an act done before the passage of the law and which was innocent when done;

2.      Aggravates a crime, or makes it greater than it was, when committed;

3.      Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;

4.      Alters the legal rules of evidence, and authorizes conviction upon a less or different testimony than the law required at the time of the commission of the offense;

5.      Assumes to regulate civil rights and remedies only, in effect imposing a penalty or deprivation of a right for something which when done was lawful; and

6.      Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

 

Ø  If retroactive effect of a new law is justified, it shall apply to the defendant even if he is:

1.      presently on trial for the offense;

2.      has already been sentenced but service of which has not begun; or

3.      already serving sentence

 

Ø  The retroactive effect of criminal statutes does not apply to the culprit’s civil liability.

REASON: The rights of offended persons or innocent third parties are not within the gift of arbitrary disposal of the State.

 

Ø  The provisions of Art. 22 are applicable even to special laws which

provide more favorable conditions to the accused.

 

Criminal liability under the repealed law subsists:

1.      When the provisions of the former law are reenacted; or

Ø  The right to punish offenses committed under an old penal law is not extinguished if the offenses are still punishable in the repealing penal law.

2.      When the repeal is by implication; or

Ø  When a penal law, which impliedly repealed an old law, is itself repealed, the repeal of the repealing law revives the prior penal law, unless the language of the repealing statute provides otherwise.

Ø  If the repeal is absolute, criminal liability is obliterated.

3.      When there is a saving clause.

 

 

? ART. 23- EFFECT OF PARDON BY THE OFFENDED PARTY

 

GENERAL RULE – Pardon by the offended party does not extinguish the criminal liability of the offender. REASON: A crime committed is an offense against the State. Only the Chief Executive can pardon the offenders.

 

EXCEPTION - Pardon by the  offended party will bar criminal prosecution in the following crimes:

 

Adultery and Concubinage (Art.

344, RPC)

–   EXPRESS or IMPLIED pardon must be given by offended party to BOTH offenders.

-    Pardon must be given PRIOR to institution of criminal action.

 

Seduction, Abduction, Acts of Lasciviousness (Art. 344, RPC)

 

 

–         EXPRESS pardon given by offended party or her parents or grandparents or guardian

-      Pardon must be given PRIOR to the institution of the criminal action. However, marriage between the offender and the offended party EVEN AFTER the institution of the criminal action or conviction of the offender will extinguish the criminal action or remit the penalty already imposed against the offender, his

 

 

co-principals, accomplices and accessories after the fact.

 

Rape (as amended by R.A. 8353)

-       The subsequent valid marriage between the offender and the offended party shall extinguish criminal liability or the penalty imposed. In case the legal husband is the offender, subsequent forgiveness by the wife as offended party shall also produce the same effect.

 

Ø  Pardon by the offended party under Art. 344 is ONLY A BAR to criminal prosecution; it is NOT a ground for extinguishment of criminal liability.

 

Ø  Nevertheless, civil liability may be extinguished by the EXRESS WAIVER of the offended party.

 

 

 

 

 

 

 

AN OFFENSE CAUSES TWO CLASSES OF INJURIES:

SOCIAL INJURY	PERSONAL INJURY
Produced by the disturbance and alarm which are the outcome of the offense.	Caused to the victim of the crime who suffered damage either to his person, to his property, to his honor or to her chastity.
Is sought to be repaired  through the imposition of the corresponding penalty.	Is    repaired   through indemnity.
The offended party cannot pardon the offender so as to relieve him of the penalty.	The offended party may waive the indemnity and the State has no reason to insist in its payment.

 

 

? ART. 24 – MEASURES OF PREVENTION OR SAFETY WHICH ARE NOT CONSIDERED PENALTIES

 

THE FOLLOWING ARE NOT 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 Art. 80 (now Art. 192, PD No. 603) and for the purposes specified therein.

3.      Suspension from the employment or public office during the trial or in order to institute proceedings.

4.      Fines and other corrective measures which, in the exercise of their administrative or disciplinary powers, superior officials may impose upon their subordinates.

5.      Deprivation of rights and the reparations which the civil law may establish in penal form.

 

 

 

 

 

Reasons why they are not penalties:

1.      Because they are not imposed as a result of judicial proceedings. Those mentioned in paragraphs 1, 3 and 4 are merely preventive measures before conviction of offenders.

2.      The offender is not subjected to or made to suffer these measures in expiation of or as punishment for a crime.

 

Ø  Par. 1 does not refer to the confinement of an insane or imbecile who has not been arrested for a crime. It refers to “accused persons” who are detained “by reason of insanity or imbecility.”

 

Ø  Paragraphs 3 and 4 refer to administrative suspension and administrative fines and not to suspension or fine as penalties for violations of the RPC.

 

Ø  The deprivations of rights established in penal form by the civil laws is illustrated in the case of parents who are deprived of their parental authority if found guilty of the crime of corruption of their minor children, in accordance with Art. 332 of the Civil Code.

 

Ø  Where a minor offender was committed to a reformatory pursuant to Art. 80 (now, PD 603), and while thus detained he commits a crime therein, he cannot be considered a quasi-recidivist since his detention was only a preventive measure, whereas a quasi-recidivism presupposes the commission of a crime during the

MEMORY AID IN CRIMINAL LAW

 

service of the penalty for a previous crime.

 

 

Chapter Two: Classification of Penalties (Arts. 25-26)

 

? ART. 25 – PENALTIES WHICH MAY BE IMPOSED

 

Ø  The scale in Art. 25 is only a general classification of penalties based on their severity, nature and subject matter.

 

Ø  The scale of penalties in Art. 70 is provided for successive service of sentences imposed on the same accused, in consideration of their severity and natures.

Ø  The scales in Art. 71 are for the purpose of graduating the penalties by degrees in accordance with the rules in Art. 61.

 

CLASSIFICATION OF PENALTIES UNDER ARTICLE 25:

a)      Based on their severity or gravity

1.      Capital,

2.      Afflictive,

3.      Correctional,

4.      Light

Ø  This classification corresponds to the classification of felonies in Art. 9, into grave, less grave and light.

b)      Based on their nature

1.      Principal penalties – those expressly imposed by the court in the judgment of conviction. May be further classified based on divisibility

i.      Divisible – are those that have fixed duration and are divisible into three periods.

ii.      Indivisible – are those which have no fixed duration. These are:

1)      Death

2)      Reclusión perpetua

3)      Perpetual absolute or special disqualification

4)      Public censure

2.      Accessory penalties – are those that are deemed included in the principal penalties.

 

c)       Based on subject matter

1.      Corporal (death).

2.      Deprivation of freedom (reclusion, prision, arresto).

3.      Restriction of freedom (destierro).

4.      Deprivation              of            rights (disqualification and suspension).

5.      Pecuniary (fine).

 

Ø  Perpetual or temporary absolute disqualification, perpetual or temporary special disqualification, and suspension may be principal or accessory penalties.

EXAMPLES:

I.      Perpetual                        absolute disqualification is a principal penalty in prevaricacion (Art.

204) and perpetual special disqualification, in malversation (Art. 217).

II.      Temporary                      absolute disqualification is a principal penalty when the accessory acts with abuse of public functions (Art, 19[3] and Art. 58) and temporary                  special disqualification, in direct bribery (Art. 206).

III.      Suspension is a principal penalty in rendition of unjust interlocutory orders (Art. 206).

 

 

Ø  Bond to keep the peace is imposed only in the crime of threats (Art. 284), either grave (Art. 282) or light (Art. 283).

 

 

? ART. 26 FINE – WHEN AFFLICTIVE, CORRECTIONAL OR LIGHT

 

FINE IS:

1.      Afflictive – over P6,000.00

2.      Correctional – P200.00 to P6,000.00

3.      Light penalty – less than P200.00

 

Ø  Same basis may be applied to Bond to keep the peace by analogy.

 

Ø  This article determines the classification of a fine whether imposed as a single or as an alternative penalty for a crime.

 

Ø  The rule herein does not apply where the fine involved is in a compound penalty, that is, it is imposed in conjunction with another penalty.

 

Ø  Where the fine in question is exactly P200, under Art. 9 it is a light felony, hence the felony involved is a light felony; whereas under Art. 26, it is a correctional penalty, hence the offense involved is a less grave felony. It has been held that this discrepancy

 

 

should be resolved liberally in favor of the accused, hence Art. 9 prevails over Art. 26 (People vs. Yu Hai, 99 Phil. 725).

HOWEVER, according to Justice Regalado there is no such discrepancy. What is really in issue is the prescription of the offense vis-a-vis the prescription of the penalty, the former being the forfeiture of the right of the State to prosecute the offender and the latter being the loss of its power to enforce the judgment against the convict.

 

 

Chapter Three: Duration and Effects of Penalties (Arts. 27-45)

 

Section One – Duration of Penalties

? ART. 27 – DURATION OF EACH DIFFERENT PENALTIES

 

1.      Reclusión perpetua – 20 yrs. and 1 day to 40 yrs.

2.      Reclusión temporal – 12 yrs. and 1 day to 20 yrs.

3.      Prisión mayor and temporary disqualification – 6 yrs. and 1 day to 12 yrs., except when disqualification is an accessory penalty, in which case its duration is that of the principal penalty.

4.      Prisión correccional, suspensión, and destierro – 6 mos. and 1 day to 6 yrs., except when suspensión is an accessory penalty, in which case its duration is that of the principal penalty.

5.      Arresto mayor – 1 mo. And 1 day to 6 mos.

6.      Arresto menor – 1 day to 30 days

7.      Bond to keep the peace – the period during which the bond shall be effective is discretionary on the court.

 

Ø  Destierro is a principal, correctional and divisible penalty.

 

In what cases is destierro imposed?

1.      Serious physical injuries or death under exceptional circumstances. (Art. 247)

2.      In case of failure to give bond for good behavior. (Art. 284)

3.      As a penalty for the concubine in concubinage. (Art. 334)

4.      In cases where after reducing the penalty by one or more degrees, destierro is the proper penalty.

? ART. 28 – COMPUTATION OF PENALTIES

 

1.      When the offender is in prison – the duration of temporary penalties is from the day on which the judgment of conviction becomes final.

2.      When the offender is not in prison – the duration of penalties consisting in deprivation of liberty, is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty.

3.      The duration of other penalties – the duration is from the day on which the offender commences to serve his sentence.

 

 

? ART. 29 – PERIOD OF PREVENTIVE IMPRISONMENT DEDUCTED FROM TERM OF IMPRISONMENT

 

Preventive imprisonment – is the period of detention undergone by an accused where the crime with which he is charged is non-bailable or, even if bailable, he is unable to post the requisite bail.

 

Ø  These rules on preventive imprisonment apply to all sentences regardless of the duration thereof, including the so-called perpetual penalties as long as they involve deprivation of liberty. It applies to destierro.

 

When is the detention prisoner entitled to the full credit of his preventive imprisonment?

If the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners.

When will he be credited only with four- fifths the time during which he has undergone preventive imprisonment?

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners.

 

Ø  In the case of a youthful offender who has been proceeded against under the Child and Youth Welfare Code, he shall be credited in the service of his sentence with the full time of his actual detention, whether or not he agreed to abide by the same disciplinary rules of the institution.

 

The following offenders are not entitled to be credited with the full time or four-

MEMORY AID IN CRIMINAL LAW

 

fifths of the time of preventive imprisonment:

1.      Recidivists or those convicted previously twice or more times of any crime.

2.      Those who, upon being summoned for the execution of their sentence, failed to surrender voluntarily.

 

Ø  Habitual delinquents are included in No. 1.

 

Ø  No. 2 refers to convicts who failed to voluntarily surrender to serve their penalties under a final judgment, since this is indicative of a greater defiance of authority. It does not refer to failure or refusal to voluntarily surrender after the commission of the crime.

 

Section Two – Effects of the penalties according to their respective nature.

 

Ø  A plebiscite is not mentioned or contemplated in Art.30, par. 2 (deprivation of the right to vote), hence, the offender may vote in that exercise, subject to the provisions of pertinent election laws at the time.

 

Ø  Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence.

 

Ø  Temporary absolute disqualification lasts during the term of the sentence, and is removed after the service of the same, EXCEPT:

1)      Deprivation of the public office or employment, and

2)      Loss of all rights to retirement pay or other pension for any office formerly held.

 

Ø  Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime.

 

CIVIL INTERDICTION IN ART. 34 IS IMPOSED WHEN THE PENALTY IS:

1.      Death which is not carried out,

2.      Reclusión perpetua,or

3.      Reclusión temporal

 

 

? ART. 36 – PARDON; ITS EFFECTS EFFECTS OF PARDON BY THE PRESIDENT

1.      A pardon shall not restore the right to hold public office or the right of suffrage.

EXCEPTION: When any or both such rights is/are expressly restored by the terms of the pardon.

 

2.      It shall not exempt the culprit from the payment of the civil liability.

 

 

LIMITATIONS UPON THE EXERCISE OF THE PARDONING POWER:

1.      That the power can be exercised only after conviction “by final judgment”;

 

2.      That such power does not extend to cases of impeachment.

GENERAL RULE: When the principal penalty is remitted by pardon, only the effect of that principal penalty is extinguished, but not the accessory penalties attached to it.

PARDON BY THE CHIEF EXECUTIVE (ART. 36) PARDON BY OFFENDED PARTY (ART. 23) As to the crime covered Can extend to any crime,           unless otherwise provided by or subject to conditions in the Constitution or the laws. Applies only to crimes         against chastity under the RPC.   As to extinguishment of criminal liability Extinguishes criminal liability. Does not extinguish criminal liability although it may constitute a bar to the prosecution of the offender. At to the effect on civil liability Cannot affect the civil liability ex delicto of the offender. The offended party can waive the civil liability. When granted Can be extended only                after conviction by final judgment of the accused. Can be validly granted only before the institution of the criminal action. To whom granted To any or all of the accused In     adultery     and concubinage,   must

EXCEPTION: When an absolute pardon is granted after the term of imprisonment has expired, it removes what is left of the consequences of conviction.

 

 

Ø 

include            both offenders. As to whether it can be conditional May be absolute or conditional Cannot validly be made subject to a condition.

Subsidiary penalty shall be proper only if the accused has no property with which to pay the fine, and not as a matter of choice on his part by opting to go to jail instead of paying.

 

 

 

 

 

 

? ART. 37 – COSTS

 

Costs or costs of suit – are the expenses of litigation allowed and regulated by the Rules of Court to be assessed against or to be recovered by a party in litigation.

 

THE FOLLOWING ARE INCLUDED IN COSTS:

1.      Fees, and

2.      Indemnities, in the course of judicial proceedings.

 

Ø  Are chargeable to the accused only in cases of conviction. In case of acquittal, the costs are de oficio, meaning each party bearing his own expenses.

 

Ø  The payment of costs is a matter that rests entirely upon the discretion of courts.

 

 

? ART. 38 - PECUNIARY LIABILITIES

 

What are the pecuniary liabilities of persons criminally liable?

They are, in the following order:

1.      The reparation of the damage caused

2.      Indemnification of the consequential damages

3.      Fine

4.      Costs of proceedings.

 

When is Art.38 applicable?

In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities.

 

 

? ART. 39 – SUBSIDIARY PENALTY

 

Subsidiary penalty – it is a subsidiary personal liability to be suffered by the convict who has no property with which to meet the fine, at the rate of one day for each eight pesos (P8.00), subject to the rules provided for in Art. 39.

Ø  Subsidiary penalty is not an accessory penalty, hence it must be specifically imposed by the court in its judgment, otherwise the accused cannot be made to serve the corresponding subsidiary imprisonment.

 

RULES AS TO SUBSIDIARY PENALTY

1.      If the penalty imposed is prisión correccional or arresto and fine – subsidiary imprisonment is not to exceed 1/3 of the term of the sentence, and in no case to continue for more than one year. Fraction or part of a day, not counted.

2.      When the penalty imposed is fine only

– subsidiary imprisonment

a)      not to exceed 6 months – if the culprit is prosecuted for grave or less grave felony, and

b)      not to exceed 15 days – if prosecuted for light felony.

3.      When the penalty imposed is higher than prisión correccional – no subsidiary imprisonment.

4.      If the penalty imposed is not to be executed by confinement, but of fixed duration – subsidiary penalty shall consist in the same deprivations as those of the principal penalty, under the same rules as nos. 1, 2 and 3 above.

5.      In case the financial circumstances of the convict should improve, he shall pay the fine, notwithstanding the fact that the convict suffered subsidiary personal liability therefor.

 

Ø  When the penalty prescribed for the offense is imprisonment, it is the penalty actually imposed by the Court, not the penalty provided for by the Code, which should be considered in determining whether or not subsidiary penalty should be imposed.

 

NO    SUBSIDIARY    PENALTY    SHALL    BE IMPOSED WHERE:

1.      The penalty imposed is higher than

prisión correccional or 6 years,

Ø  Additional penalty for habitual delinquency should be included in determining whether or not subsidiary penalty should be imposed.

MEMORY AID IN CRIMINAL LAW

 

2.      For non-payment of reparation or indemnification,

 

3.      For non-payment of costs, and

 

4.      Where the penalty imposed is a fine and another penalty without fixed duration, like censure.

 

Ø  The rules on subsidiary penalty in Art. 39 are applicable to crimes punishable by special laws by force of Art. 10 of the Code.

 

Section Three – Penalties in which other accessory penalties are inherent

 

OUTLINE     OF    ACCESSORY     PENALTIES INHERENT IN PRINCIPAL PENALTIES

1.      Death, when not executed by reason of commutation or pardon

i.      Perpetual                           absolute disqualification, and

ii.      Civil interdiction during 30 years, if not expressly remitted in the pardon.

 

2.      Reclusión perpetua and reclusión temporal

i.      Civil interdiction for life or during the sentence, and

ii.      Perpetual                           absolute disqualification, unless expressly remitted in the pardon of the principal penalty.

 

3.      Prisión mayor

i.      Temporary                         absolute disqualification, and

ii.      Perpetual special disqualification from suffrage, unless expressly remitted in the pardon of the principal penalty.

 

4.      Prisión correccional

i.      Suspension from public office, profession or calling, and

ii.      Perpetual special disqualification from suffrage, if the duration of imprisonment exceeds 18 months, unless expressly remitted in the pardon of the principal penalty.

§   There is perpetual special disqualification from suffrage, only when the duration of the imprisonment exceeds 18

months.

5.      Arresto – suspension of the right to hold office and the right of suffrage during the term of the sentence.

Ø  The Code does not provide for any accessory penalty for destierro.

 

 

	RECLUSION PERPETUA			LIFE IMPRISONMENT
Has a specific duration of 20 years and 1 day to 40 years and           accessory penalties.			Has no definite term or              accessory penalties.
Imposable            on felonies punished by the RPC.			Imposable on crimes punishable by special laws.

 

? ART. 45 – CONFISCATION AND FORFEITURE OF THE PROCEEDS OF THE CRIME

 

OUTLINE OF THE PROVISION OF THIS ARTICLE

1.      Every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instruments or tools used in the commission of the crime.

2.      The proceeds and instruments or tools of the crime are confiscated and forfeited in favor of the Government.

3.      Property of a third person not liable for the offense, is not subject to confiscation and forfeiture.

4.      Property not subject of lawful commerce (whether it belongs to the accused or to third person) shall be destroyed.

 

Ø  The confiscation and forfeiture of the proceeds and instruments of a crime is an accessory penalty.

 

The provisions of Art. 45 cannot apply when

1.      The instruments belong to innocent third parties,

2.      Such properties have not been placed under the jurisdiction of the court, and

3.      When it is legally or physically impossible.

 

Ø  This accessory penalty presupposes a judgment of conviction. However, even if the accused is acquitted on reasonable doubt, but the instruments or proceeds are contraband, the judgment of acquittal shall order their forfeiture for appropriate disposition.

 

 

Chapter Four: Application of Penalties (Arts. 46-72)

 

Section One – Rules for application of penalties to the persons criminally liable and for the graduation of the same.

 

? ART. 46. PENALTY TO BE IMPOSED UPON PRINCIPALS IN GENERAL

 

GENERAL RULE: The penalty prescribed by law in general terms shall be imposed upon the principals for a consummated felony.

EXCEPT: When the penalty to be imposed upon the principal in frustrated or attempted felony is fixed by law.

 

GRADUATION OF PENALTIES

1.  BY DEGREES – refers to

a)      the stages of execution (consummated, frustrated, or attempted); and

b)      the degree of the criminal participation of the offender (whether as principal, accomplice or accessory).

2.  BY PERIODS – refers to the proper period of the penalty which should be imposed when aggravating or mitigating circumstances attend the commission of the crime.

 

 

? ART. 47 CASES WHEREIN THE DEATH PENALTY SHALL NOT BE IMPOSED

1.      UNDER AGE. When the offender is below 18 years of age at the time of the commission of the crime.

2.      OVER AGE. When the guilty person is

more than seventy (70) years of age.

3.      NO COURT MAJORITY. When upon appeal or automatic review of the case by the Supreme Court, the vote of eight members is not obtained for the imposition of the death penalty.

 

Ø  Automatic review is available only in cases where death penalty is imposed (R.A. 7659).

 

CRIMES PUNISHABLE BY DEATH UNDER THE DEATH PENALTY LAW (RA 7659)

1.      Treason

2.      Qualified Piracy

3.      Qualified Bribery

4.      Parricide

5.      Murder

6.      Infanticide

7.      Kidnapping and Serious Illegal Detention

8.      Robbery – with Homicide, Rape, Intentional Mutilation, or Arson

9.      Rape – with the use of a deadly weapon, or by two or more persons

-    where the victim became insane

-    with Homicide

10.   Qualified Rape

11.   Destructive Arson

12.   Plunder

13.   Violation of certain provisions of the Dangerous Drugs Act

14.   Carnapping

 

? ART. 48 COMPLEX CRIMES CONCEPT:

1.      In complex crime, although 2 or more crimes are actually committed, they constitute only one crime in the eyes of the law as well as in the conscience of the offender.

2.      The offender has only one criminal intent, hence there is only one penalty imposed for the commission of a complex crime.

 

TWO KINDS OF COMPLEX CRIMES:

1.               COMPOUND CRIME (delito compuesto) – a single act constitutes 2 or more grave or less grave felonies.

REQUISITES:

1.        That only a single act is performed by the offender;

2.        That the single act produces:

(1)         two or more grave felonies, or (2) one or more grave and one or more less grave felonies.

 

2.               COMPLEX CRIME PROPER (delito complejo) – an offense is a necessary means for committing the other.

REQUISITES:

1.        That at least two offenses are committed;

2.        That one or some of the offenses must be necessary to commit the other;

3.        That both or all of the offenses must be punished under the same statute.

 

NO COMPLEX CRIME IN THE FOLLOWING CASES

1.      In case of continuing crimes

2.      When one offense is committed to

conceal the other.

3.      When the other crime is an indispensable part or an element of the other offenses.

MEMORY AID IN CRIMINAL LAW

 

4.      Where one of the offenses is penalized by a special law.

Ø  Art. 48 does not apply when the law provides one single penalty for special complex crime. These include –

Robbery with Homicide Robbery with Rape Rape with Homicide

Kidnapping          with          Serious Physical Injuries

Kidnapping with Homicide or Murder

 

Ø  The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period.

 

Ø  If different crimes resulting from one single act are punished with the same penalty, the penalty for any one of them shall be imposed, the same to be applied in the maximum period.

 

Ø  Art. 48 applies to crimes through negligence. E.g.: offender found guilty of a complex crime of homicide with less serious physical injuries through reckless imprudence.

 

Ø  When 2 felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the penalty of imprisonment should be imposed. REASON: fine is not included in the list of penalties in the order of severity, and it is the last in the graduated scales in Art. 71 of the RPC.

 

Plurality of Crimes- consists in the successive execution, by the same individual, of different criminal  acts, upon any of which no conviction has yet been declared.

 

KINDS:

1.      FORMAL OR IDEAL PLURALITY- only

ONE CRIMINAL LIABILITY.

THREE     GROUPS     UNDER      THE FORMAL TYPE:

a)      When the offender commits any of the complex crimes in ART 48.

b)      When the law specifically fixes a single penalty for two or more offenses committed.

c)       When   the   offender commits

continuing crimes.

2.      REAL OR MATERIAL PLURALITY - DIFFERENT CRIMES in law, as well as in the conscience of the offender; the

offender shall be PUNISHED FOR EACH and every offense that he committed.

CONTINUING CRIME – is a single crime, consisting of a series of acts, but all arising from ONE CRIMINAL RESOLUTION; length of time in the commission is immaterial.

 

REAL OR MATERIAL PLURALITY	CONTINUED CRIME
1. There is a series of acts performed by the offender	1. There is a series of acts performed by the offender
2. Each act performed by the offender constitutes a separate crime, each act is generated by a criminal impulse	2. The different acts constitute only one crime, all of the acts performed arise from one criminal resolution

 

?ART. 49 PENALTY TO BE IMPOSED UPON THE PRINCIPALS WHEN THE CRIME COMMITTED IS DIFFERENT FROM THAT INTENDED

 

RULES:

1.      If the penalty for the felony committed be higher than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period.

2.      If the penalty for the felony committed be lower than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period.

3.      If the act committed also constitutes an attempt or frustration of another crime, and the law prescribes a higher penalty for either of the latter, the penalty for the attempted or frustrated crime shall be imposed in its maximum period.

 

? ART. 59. PENALTY TO BE IMPOSED IN CASE OF FAILURE TO COMMIT THE CRIME BECAUSE THE MEANS EMPLOYED OR THE AIMS SOUGHT ARE IMPOSSIBLE

 

The penalty for impossible crime is Arresto Mayor (imprisonment of 1 mo and 1 day to 6 mos) or fine ranging from 200-500pesos. BASIS FOR THE IMPOSITION OF PROPER PENALTY

1.      Social danger; and

2.      Degree of criminality shown by the offender

 

? ART. 61. RULES OF GRADUATING PENALTIES

 

 

According to Arts. 50-57, the penalty prescribed by law for the felony shall be lowered by one or two degrees, as follows:

1.      For the principal in frustrated felony – one degree lower;

2.      For the principal in attempted felony – two degrees lower;

3.      For the accomplice in consummated felony – one degree lower;

4.      For the accessory in consummated felony – two degrees lower;

 

DIAGRAM OF THE APPLICATION OF ARTS. 50- 57:

 

	CONSUM- MATED	FRUS- TRATED	ATTEMP- TED
Prin	0	1	2
Accom	1	2	3
Acces	2	3	4

 

In this diagram, “0” represents the penalty prescribed by law in defining a crime, which is to be imposed on the principal in a consummated offense, in accordance with the provisions of Art. 64. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law.

 

Section Two – Rules for the application of penalties with regard to the mitigating            and      aggravating circumstances, and habitual delinquency

 

 

 

 

 

? ART. 62. EFFECTS OF THE ATTENDANCE OF MITIGATING OR AGGRAVATING CIRCUMSTANCES AND OF HABITUAL DELIQUENCY

 

EFFECTS:

1.      Aggravating circumstances (generic and specific) have the effect of increasing the penalty, without however exceeding the maximum period provided by law.

2.      Mitigating circumstances have the effect of diminishing the penalty.

3.      Habitual delinquency has the effect, not only of increasing the penalty because of recidivism which is generally implied in habitual delinquency, but also of imposing an additional penalty.

REQUISITES OF HABITUAL DELIQUENCY:

1.      that the offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification.

2.      that after conviction or after serving his sentence, he again committed, and, within 10 years from his last release of first conviction, he was again convicted of any of the said crimes for the second time.

3.      that after his conviction of, or after serving sentence for the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener.

 

Habituality distinguished from recidivism

HABITUAL DELIQUENCY	RECIDIVISM
As to the CRIMES committed
The     crimes     are specified	It is sufficient  that the accused on the date of his trial, shall    have    been previously convicted by final judgment           of another        crime embraced    in  the same title.
As to the PERIOD of time the crimes are committed
The offender is found guilty within ten years from his last release or last conviction.	No period of time between          the former conviction and the last conviction.
As to the NUMBER of crimes committed
The accused must be found guilty the third time or oftener of the crimes specified.	The second offense is for an offense found in the same title.
As to their EFFECTS
An additional penalty is also imposed	If  not  offset  by  a mitigating circumstance, serves to increase the penalty only to the maximum

 

ART. 63 RULES FOR THE APPLICATION OF INDIVISIBLE PENALTIES

 

OUTLINE OF THE RULES:

1.      When the penalty is single indivisible, it shall be applied regardless of any mitigating (except if privilege mitigating)            or           aggravating circumstances.

MEMORY AID IN CRIMINAL LAW

 

2.      When the penalty is composed of two indivisible penalties, the following rules shall be observed:

a)      When there is only one aggravating circumstance, the greater penalty shall be imposed.

b)      When there is neither mitigating nor aggravating circumstances, the lesser penalty shall be imposed.

c)       When there is a mitigating circumstance and no aggravating circumstance, the lesser penalty shall be imposed.

d)      When both mitigating and aggravating circumstances are present, the court shall allow them to offset one another.

 

 

 

 

 

 

? ART. 64 RULES FOR THE APPLICATION OF PENALTIES, WHICH CONTAIN THREE PERIODS

 

CASES IN WHICH MITIGATING AND AGGRAVATING CIRCUMSTANCES ARE NOT CONSIDERED IN THE IMPOSITION OF PENALTY:

1.      When the penalty is single and indivisible (except if privileged mitigating)

2.      In felonies through negligence

3.      When the penalty is only a fine imposed by an ordinance

4.      When the penalties are prescribed by special laws

? ART. 66. IMPOSITION OF FINES OUTLINE OF THE PROVISION:

1.      The court can fix any amount of the

fine within the limits established by law.

2.      The court must consider: (1) the mitigating and aggravating circumstances; and (2) more particularly, the wealth or means of the culprit.

3.      The court may also consider: (1) the gravity of the crime committed; (2) the heinousness of it s perpetration; and (3) the magnitude of its effects on the offender’s victims.

 

 

? ART. 68. PENALTY TO BE IMPOSED UPON A PERSON UNDER EIGHTEEN YEARS OF AGE

APPLICATION OF ART. 68:

Ø  This article is not immediately applicable to a minor under 18 years of age, because such minor, if found guilty of the offense charged, is not sentenced to any penalty. The sentence is suspended and he is ordered committed to the reformatory institution, IF, his application therefore is approved by the court.

 

Ø  This article is applicable when the minor’s application for suspension of sentence is DISAPPROVED or if while in the reformatory institution he becomes INCORRIGIBLE, in which case he shall be returned to the court for the imposition of the proper penalty.

 

? ART. 70. SUCCESSIVE SERVICE OF SENTENCE

 

THE THREE-FOLD RULE

 

1.      THE MAXIMUM DURATION OF THE CONVICT’S SENTENCE shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him.

2.      But in no case to exceed 40 years.

3.      This rule shall apply only when the convict is to serve 4 or more sentences successively.

4.      Subsidiary penalty forms part of the penalty.

 

 

DIFFERENT SYSTEMS OF PENALTY, RELATIVE TO THE EXECUTION OF TWO OR MORE PENALTIES IMPOSED ON ONE AND THE SAME ACCUSED

1.      Material accumulation system

No limitation whatever, and accordingly, all the penalties for all the violations were imposed even if they reached beyond the natural span of human life.

2.      Juridical accumulation system

Limited to not more than three- fold the length of time corresponding to the most severe and in no case to exceed 40 years. This is followed in our jurisdiction.

3.      Absorption system

The lesser penalties are absorbed by the graver penalties.

 

 

? ART. 72. PREFERENCE IN THE PAYMENT OF CIVIL LIABILITIES

 

 

Civil liability is satisfied by following the chronological order of the dates of the final judgment.

 

 

Section Three – Provisions common in the last two preceding sections (Arts. 73-77)

 

? ART. 77. WHEN THE PENALTY IS A COMPLEX ONE COMPOSED OF THREE DISTINCT PENALTIES

 

COMPLEX PENALTY - is a penalty prescribed by law composed of three distinct penalties, each forming a period: the lightest of them shall be the minimum, the next the medium, and the most severe the maximum period.

 

 

INDETERMINATE SENTENCE LAW (ISL)

Act No. 4103 as amended by Act No.

4225

 

CONCEPT  OF  INDETERMINATE SENTENCE

– is a sentence with a minimum term and a

maximum term

 

which, the court is mandated to impose for the benefit of a guilty person who is not disqualified therefore, when the maximum imprisonment exceeds one (1) year. It applies to both violations of Revised Penal Code and special laws.

 

A.     SENTENCE IN THE ISL

In imposing a prison sentence for an offense punished by the Revised Penal Code or special penal laws, the court shall sentence the accused to an indeterminate sentence, which has a maximum and a minimum term based on the penalty actually imposed.

 

Ø  ISL application is mandatory, where imprisonment would exceed one year.

 

I.     IF THE PENALTY IS IMPOSED BY THE RPC:

1.      The Maximum Term – is that which could be properly imposed under the RPC, considering the aggravating and mitigating circumstances.

2.      The MinimumTerm – is within the range of the penalty one degree lower than that prescribed by the RPC, without              considering              the circumstances.

Ø  BUT when there is a privileged mitigating circumstance, so that the penalty has to be lowered by one

degree, the STARTING POINT for determining the minimum term of the indeterminate penalty is the penalty next lower than that prescribed by the Code for the offense.

 

II.      IF THE PENALTY IS IMPOSED BY SPECIAL PENAL LAW

a)      The Maximum Term – must not exceed the maximum term fixed by said law.

b)      The Minimum Term – must not be less than the minimum term prescribed by the same.

 

Ø  For SPECIAL LAWS, it is anything within the inclusive range of the prescribed penalty. Courts are given discretion in the imposition of the indeterminate      penalty. The aggravating and mitigating circumstances are not considered unless the special law adopts the same terminology for penalties as those used in the RPC (such as reclusión perpetua and the like).

 

B.        WHEN BENEFIT OF THE ISL IS NOT APPLICABLE:

The Indeterminate Sentence Law shall not apply to the following persons:

1.      sentenced to death penalty or life imprisonment

2.      treason, or conspiracy or proposal to commit treason

3.      misprision      of     treason,     rebellion,

sedition or espionage

4.      piracy

5.      habitual delinquents

6.      escaped from confinement, or evaded sentence

7.      granted with conditional pardon by the President, but violated the terms thereof

8.      maximum term of imprisonment does not exceed 1 year

9.      sentenced to the penalty of destierro

or suspension only

 

C.       RELEASE    OF    THE    PRISONER    ON PAROLE

The Board of Pardons and Parole may authorize the release of a prisoner on parole, after he shall have served the minimum penalty imposed on him, provided that:

a)      Such prisoner is fitted by his training for release,

b)      There is reasonable probability that he will live and remain at liberty without violating the law,

c)       Such release will not be incompatible with the welfare of society.

MEMORY AID IN CRIMINAL LAW

 

D.   ENTITLEMENT TO FINAL RELEASE AND DISCHARGE

If during the period of surveillance such paroled prisoner shall: (a) show himself to be a law abiding citizen and, (b) shall not violate any law, the Board may issue a final certification in his favor, for his final release and discharge.

 

E.          SANCTION FOR VIOLATION OF CONDITIONS OF THE PAROLE

When the paroled prisoner shall violate any of the conditions of his parole: (a) the Board may issue an order for his arrest, and thereafter, (b) the prisoner shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison.

 

F.     REASONS FOR FIXING THE MAXIMUM AND MINIMUM TERMS IN THE INDETERMINATE SENTENCE

The minimum and maximum terms in the IS must be fixed, because they are the basis for the following:

1.      Whenever a prisoner has: (a) served the MINIMUM penalty imposed on him, and (b) is fit for release of the prisoner on parole, upon terms and conditions prescribed by the Board.

2.      But when the paroled prisoner violates any of the conditions of his parole during the period of surveillance, he may be rearrested to serve the remaining unexpired portion of the MAXIMUM sentence.

3.      Even if a prisoner has already served the MINIMUM, but he is not fitted for release on the parole, he shall continue to serve until the end of the MAXIMUM term.

 

THE CHILD AND YOUTH WELFARE CODE

(PD 603, as amended)

 

Who is a Youthful Offender?

A youthful offender is a child, minor, or youth, including one who is emancipated in accordance with law, who is over nine years but under eighteen years of age at the time of the commission of the offense.

Ø  A child nine years of age or under at the time of the commission of the offense shall be exempt from criminal liability and shall be committed to the care of his or her father or mother, or nearest relative or family friend in the discretion of the court and subject to its supervision

 

Ø  The same shall be done for a child over nine years and under fifteen years of age at the time of the

commission of the offense, unless he acted with discernment, in which case he shall be proceeded against in accordance with Article 192.

 

1.      The purpose of the Child and Youth Welfare Code is to avoid a situation where JUVENILE OFFENDERS would commingle with ordinary criminals in prison.

2.      If the court finds that the youthful offender committed the crime charged against him, it shall DETERMINE the imposable penalty and the civil liability chargeable against him.

3.      The court may not pronounce judgment of conviction but instead SUSPEND all further proceedings if, upon application of the youthful offender, it finds that the best interest of the public and that of the offender will be served thereby.

4.      The benefits of Article 192 of PD 603, as amended, providing for suspension of sentence, shall NOT APPLY TO (1) a youthful offender who once enjoyed suspension of sentence under its provisions, or (2) one who is convicted of an offense punishable by death or life imprisonment.

5.      The youthful offender shall be RETURNED to the committing court for pronouncement of judgment, when the youthful offender, (1) has been found incorrigible, or (2) has willfully failed to comply with the conditions of his rehabilitation programs; or (3) when his continued stay in the training institution would be inadvisable.

6.      When the youthful offender has reached the age of TWENTY-ONE while in commitment, the court shall determine whether-

a)      To DISMISS the case, if the youthful offender has behaved properly and has shown his capability to be a useful member of the community; or

b)      To PRONOUNCE the judgment of conviction, if the conditions mentioned are not met.

7.      In the latter case, the convicted offender may apply for PROBATION. In any case, the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention.

8.      The final release of a youthful offender, based on good conduct as provided in Art. 196 shall not obliterate his CIVIL LIABILITY for damages.

 

 

9.      A minor who is ALREDY AN ADULT at the time of his conviction is not entitled to a suspension of sentence.

 

PROBATION LAW OF 1976 (PD 968, AS AMENDED)

 

A.      CONCEPT

PROBATION is a disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer.

 

 

 

B.      APPLICATION

This shall apply to all offenders except those entitled to benefits under PD 603 and similar laws.

 

C.      RULES ON GRANT OF PROBATION

1.      After having convicted and sentenced a defendant, the trial court MAY SUSPEND the execution of the sentence, and place the defendant on probation, upon APPLICATION by the defendant within the period for perfecting an appeal.

2.      Probation may be granted whether the sentence imposed a term of imprisonment or fine only.

3.      NO application for probation shall be entertained or granted if the defendant has PERFECTED AN APPEAL from the judgment of conviction.

4.      Filing of application for probation operates as a WAIVER OF THE RIGHT TO APPEAL.

5.      The application shall be filed with the trial court, and the order granting or denying probation shall NOT BE APPEALABLE.

6.      Accessory penalties are deemed suspended once probation is granted.

 

D.      POST-SENTENCE INVESTIGATION

The convict is not immediately placed on probation. There shall be a prior investigation by the probation officer and a determination by the court.

 

E.      CRITERIA FOR PLACING AN OFFENDER ON PROBATION

The court shall consider:

1.      All information relative to the character, antecedents, environment, mental, and physical condition of the offender.

2.      Available institutional and community resources.

F.      PROBATION SHALL BE DENIED IF THE COURT FINDS THAT:

1.      The offender is in need of correctional treatment that can be provided effectively by his commitment to an institution.

2.      There is undue risk of committing another crime.

3.      Probation will depreciate the seriousness of the offense committed.

 

G.        DISQUALIFIED OFFENDERS

THE BENEFITS OF THE DECREE SHALL NOT BE EXTENDED TO THOSE:

1.      Sentenced to serve a maximum term of imprisonment of more the 6 years.

2.      Convicted of subversion or any crime against the national security or the public order.

3.      Previously convicted by final judgment of an offense punished by imprisonment of not less than 1 month and 1 day and/or a fine not less than P200.

4.      Once placed on probation.

 

H.        CONDITIONS OF PROBATION

2 KINDS OF CONDITIONS IMPOSED:

1.      Mandatory or general – once violated, the probation is cancelled. They are:

a)      Probationer: Presents himself to the probation officer designated to undertake his supervision, at such place as may be specified in the order, within 72 hours from receipt of order;

b)      He reports to the probation officer at least once a month.

2.      Discretionary or special – additional conditions listed, which the courts  may additionally impose on the probationer towards his correction and rehabilitation outside prison. HOWEVER, the enumeration is not inclusive. Probation statutes are liberal in character and enable the courts to designate practically ANY term it chooses, as long as the probationer’s Constitutional rights are not jeopardized. Also, they must not be unduly restrictive of probationer, and not incompatible with the freedom of conscience of probationer.

 

 

 

I.     PERIOD OF PROBATION

FOR HOW LONG MAY A CONVICT BE PLACED ON PROBATION?

1.      If the convict is sentenced to a term of imprisonment of NOT more than one

MEMORY AID IN CRIMINAL LAW

 

year, the period of probation shall not exceed 2 years.

2.      In all other cases, if he is sentenced to more than one year, said period shall not exceed 6 years.

3.      When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment. The period of probation shall be twice the total number of days of subsidiary imprisonment.

 

J.        ARREST     OF     PROBATIONER     AND SUBSEQUENT DISPOSITIONS

1.      At any time during probation, the court may issue a warrant for the ARREST of a probationer for any serious violation of the conditions of probation.

2.      If violation is established, the court may (a) REVOKE his probation, or (b) continue his probation and MODIFY the conditions thereof. This order is not appealable.

3.      If revoked, the probationer shall SERVE the sentence originally imposed.

 

K.        TERMINATION OF PROBATION

The court may order the final discharge of the probationer upon finding that, he has fulfilled the terms and conditions of his probation.

 

L.      EFFECTS OF TERMINATION OF PROBATION

1.      Case is deemed terminated.

2.      Restoration of all civil rights lost or suspended.

3.      Fully discharges liability for any fine imposed.

 

Ø  Note that the probation is NOT coterminous with its period. There must be an order issued by the court discharging the probationer.

 

 

 

Chapter Five: Execution and Service of Penalties (Arts. 78-88)

 

? ART. 83. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE

 

Death sentence shall be suspended when accused is a:

1.      Woman, while pregnant,

2.      Woman,     within     one     year     after delivery,

3.      Person over 70 years of age;

4.      Convict who becomes insane, after final sentence of death has been pronounced.

 

 

? ART. 87. DESTIERRO

 

ONLY IN THE FOLLOWING CASES IS DESTIERRO IMPOSED:

1.      Death or serious physical injuries is caused or are inflicted under exceptional circumstances (Art. 247);

 

2.      Failure to give bond for good behavior in grave and light threats (Art. 284);

3.      Penalty for the concubine in concubinage (Art. 334);

4.      When, after reducing the penalty by one or more degrees, destierro is the proper penalty.

 

 

TITLE FOUR: EXTINCTION OF CRIMINAL LIABILITY

 

Chapter One: Total Extinction of Criminal Liability (Arts. 89-93)

 

? ART. 89. CRIMINAL LIABILITY IS TOTALLY EXTINGUISHED

 

HOW CRIMINAL LIABLITY TOTALLY EXTINGUISHED:

1.      By the DEATH of the convict as to personal penalties; BUT as to pecuniary penalties, liability is extinguished only when the death of the offender occurs before or after final judgment

 

 

2.      By SERVICE OF 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 PENALTY

7.      By MARRIAGE OF THE OFFENDED WOMAN with the offender in the crimes of rape, seduction, abduction, and acts of lasciviousness. In the crimes of rape, seduction, abduction, and acts of lasciviousness, the marriage, as provided under Art 344, must be contracted in good faith.

 

AMNESTY – is an act of the sovereign power granting oblivion or general pardon for a past offense, and is rarely if ever exercised in favor of a single individual, and is usually extended in behalf of

 

 

certain classes of persons who are subject to trial but have not yet been convicted.

 

PARDON – is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed.

 

Pardon distinguished from amnesty

PARDON	AMNESTY
1. Includes any crime and is exercised individually by the President	1. A blanket pardon to classes of persons or communities who may be guilty of political offenses.
2. Exercised when the person is already convicted	2. May be exercised even before trial or investigation is had
3.     Merely    looks FORWARD         and relieves            the offender from the consequences of an offense of which he has been convicted; it does not work for the restoration of the rights to hold public office, or the right of suffrage, unless such rights are          expressly restored  by  means of pardon.	3. Looks BACKWARD and abolishes and puts into oblivion  the offense itself; it so overlooks and obliterates          the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had  committed no offense.
4. Does not alter the fact that the accused is a recidivist as it produces only the extinction of the personal effects of the penalty.	4. Makes an ex- convict no longer a recidivist, because it obliterates the last vestige of the crime.
5.      Does       not extinguish        the civil liability of the offender	5.       Does       not extinguish the civil liability      of     the offender
6. Being PRIVATE ACT by the President, must be pleaded and proved by the person pardoned	6. Being a Proclamation of the Chief Executive with the concurrence of Congress; is a PUBLIC ACT of which the courts should take judicial notice

 

Prescription of the crime – is the forfeiture or loss of the right of the State to prosecute the offender, after the lapse of a certain time.

 

PRESCRIPTIVE PERIODS OF CRIMES:

1.      Crimes punishable by

a)      Death, reclusión perpetua or

reclusión temporal – 20 years

b)      afflictive penalties – 15 years

c)       correctional penalties – 10 years except those punishable by arresto mayor which shall prescribe in 5 years.

Ø  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 above.

2.      Crime of libel – 1 year

3.      Offenses    of    oral    defamation     and slander by deed – 6 months

4.      Light offenses – 2 months

 

Prescription of the penalty – is the loss or forfeiture of the right of the government to execute the final sentence, after the lapse of a certain time.

 

 

PRESCRIPTIVE PERIODS OF PENALTIES:

1.      Death and reclusión perpetua – 20 years

2.      Other afflictive penalties – 15 years

3.      Correctional penalties – 10 years except for the penalty of arresto mayor which prescribes in 5 years.

4.      Light penalties – 1 year

 

 

? ART. 93. COMPUTATION OF THE PRESCRIPTION OF PENALTIES

 

OUTLINE

1.      Period of prescription commences to run from the date when the culprit evaded the service of his sentence.

2.      It is interrupted when the convict

a)      gives himself up,

b)      is captured,

c)       goes to a foreign country with which we have no extradition treaty, or

d)      commits any crime before the expiration of the period of prescription.

 

ELEMENTS

1.      That the penalty is imposed by final judgment

2.      That the convict evaded the service of his sentence by escaping during the term of his sentence

3.      The convict who escape from prison has not given himself up, or been captured, or gone to a foreign country

4.      That the penalty has prescribed because of the lapse of time from the

MEMORY AID IN CRIMINAL LAW

 

date of the evasion of service of the sentence by the convict.

 

Chapter Two: Partial Extinction of Criminal Liability (Arts. 94-99)

 

? ART. 94. PARTIAL EXTINCTION OF CRIMINAL LIABILITY

 

CRIMINAL LIABILITY IS PARTIALLY EXTINGUISHED:

1.      By CONDITIONAL PARDON;

2.      By COMMUTATION OF SERVICE

3.      For GOOD CONDUCT ALLOWANCES which the culprit may earn while he is serving sentence;

4.      By PAROLE

a.      Parole – is the suspension of the sentence of a convict, after serving the minimum term of the indeterminate penalty, without being granted a pardon, prescribing the terms upon which the sentence shall be suspended

 

b.      If the convict fails to observe the condition of the parole, the Board of Pardons and Parole is authorized to :

(1)   direct his ARREST AND RETURN TO CUSTODY and thereafter;

(2)     to CARRY OUT HIS SENTENCE WITHOUT REDUCTION of the time that has elapsed between the date of the parole and the subsequent arrest.

5.      By PROBATION. See Probation Law page42

 

Conditional pardon distinguished from parole

CONDITIONAL PARDON	PAROLE
1. May be given at any time after final judgment; is granted by the Chief Executive under the provisions of the Administrative Code	1. May be given after the prisoner has served the minimum penalty; is granted by the Board of Pardons and Parole under the provision of the Indeterminate Sentence Law
2. For violation of the conditional pardon, the convict may be ordered re-arrested or re-incarcerated by the Chief Executive, or may be PROSECUTED under Art. 159 of the Code	2. For violation of the terms of the parole, the convict CANNOT BE             PROSECUTED UNDER ART. 159 OF THE RPC, he can be re-arrested and re- incarcerated to serve the  unserved  portion of his original penalty.

 

TITLE FIVE: CIVIL LIABILITY

Chapter One: Persons Civilly Liable for Felonies (Arts. 100-103)

? ART. 100. CIVIL LIABILITY OF A PERSON GUILTY OF FELONY

 

A CRIME HAS A DUAL CHARACTER:

1.      As an offense against the state, because of the disturbance of the social order; and

2.      As an offense against the private person injured by the crime, UNLESS it involves the crime of treason, rebellion, espionage, contempt, and others wherein no civil liability arises on the part of the offender, either because there are no damages to be compensated or there is no private person injured by the crime.

 

EFFECT OF ACQUITTAL

Extinction of the penal action does NOT carry with it extinction of the civil; UNLESS the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. (See Section 1, Rule

111 of the 2000 Rules on Criminal Procedure. Civil liability arising from other sources of obligations is not impliedly instituted with the criminal action).

 

EFFECT OF DISMISSAL OF CASE

The dismissal of the information or the criminal action does NOT affect the right of the offended party to institute or continue the civil action already instituted arising from the offense, because such dismissal or extinction of the penal action does not carry with it the extinction of the civil action.

 

EFFECT OF DEATH OF THE OFFENDER

If the offender dies prior to the institution of the action or prior to the finality of judgment, civil liability ex-delicto is extinguished. (DE GUZMAN vs. PEOPLE OF THE PHILIPPINES, G.R. No. 154579.

October 8, 2003)

 

Ø In all these cases, civil liability from sources other than delict are not extinguished.

 

 

 

? ART. 101. RULES REGARDING CIVIL LIABILITY IN CERTAIN CASES

-     Civil liability is still imposed in cases falling under exempting circumstances EXCEPT:

 

 

1.      No civil liability in paragraph 4 of Art. 12 which provides for injury caused by mere accident.

2.      No civil liability in paragraph 7 of Art. 12 which provides for failure to perform an act required by law when prevented by some lawful or insuperable cause.

 

-         No civil liability is imposed in cases falling under justifying circumstances EXCEPT:            under paragraph 4, where a person does an act, causing damage to another, in order to avoid evil or injury, the person benefited by the prevention of the evil or injury shall be civilly liable in proportion to the benefit he received.

 

 

? ART. 102. SUBSIDIARY LIABILITY OF INNKEEPERS, TAVERNKEEPERS, AND PROPRIETORS OF ESTABLISHMENTS

 

ELEMENTS UNDER PARAGRAPH 1

1.      That the innkeeper, tavernkeeper or proprietor of establishment or his employee committed a violation of municipal ordinance or some general or special police regulation.

2.      That the crime is committed in such inn, tavern or establishment.

3.      That the person criminally liable is

insolvent.

 

Ø  Concurrence of all elements makes the innkeeper, tavernkeeper, or proprietor civilly liable for the crime committed in his establishment.

 

ELEMENTS UNDER PARAGRAPH 2

1.      That the guests notified in advance the innkeeper or the person representing of the deposit of their goods within the inn or house.

2.      The guests followed the directions of the innkeeper or his representative with respect to the care of and vigilance over such goods.

3.      Such goods of the guests lodging therein were taken by robbery with force upon things or theft committed within the inn or house.

 

ART. 103. SUBSIDIARY CIVIL LIABILITY OF OTHER PERSONS

 

ELEMENTS

1.      The employer, teacher, person, or corporation is engaged in any kind of industry.

2.      Any of their servants, pupils, workmen, apprentices, or employees

commits     a    felony    while    in    the discharge of his duties.

3.      The said employee is insolvent and has not satisfied his civil liability.

 

 

Chapter Two: What Civil Liability Includes (Arts. 104-111)

 

?ART. 104. WHAT IS INCLUDED IN CIVIL LIABILITY

 

RESTITUTION – restitution of the thing itself must be made whenever possible even when found in the possession of a third person except when acquired by such person in any manner and under the requirements which, by law, bar an action for its recovery.

 

REPARATION OF DAMAGES – reparation will be ordered by the court if restitution is not possible. The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value.

 

INDEMNIFICATION     FOR     DAMAGES      –

includes not only those caused the injured party, but also, those suffered by his family or by a third person by reason of the crime.

 

- END OF BOOK ONE -