This document contains an outline of topics related to criminal law in the Philippines. It discusses fundamental principles like the sources of criminal law, territoriality, and the different modes of committing felonies (dolo, culpa, mistake of fact, etc.). It also covers circumstances affecting criminal liability, persons criminally liable, penalties, and modification/extinction of criminal liability. The outline then delves into specific crimes organized by their nature (against national security, public order, persons, property, etc.).

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Criminal Law
Bar 2011 Notes
Roland Glenn T. Tuazon
Ateneo de Manila University
TABLE OF CONTENTS:
1. FUNDAMENTAL PRINCIPLES AND FELONIES
2. CIRCUMSTANCES AFFECTING LIABILITY
3. PERSONS CRIMINALLY LIABLE
4. PENALTIES
5. MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY
6. AGAINST NATIONAL SECURITY
7. AGAINST FUNDAMENTAL LAWS OF THE STATE
8. AGAINST PUBLIC ORDER
9. AGAINST PUBLIC INTEREST
10.RELATIVE TO OPIUM AND OTHER DRUGS
11.AGAINST PUBLIC MORALS
12.COMMITTED BY PUBLIC OFFICERS
13.AGAINST PERSONS
14.AGAINST PERSONAL LIBERTY AND SECURITY
15.AGAINST PROPERTY
16.AGAINST CHASTITY
17.AGAINST CIVIL STATUS
18.AGAINST HONOR
19.CRIMINAL NEGLIGENCE
ANNEX I: CIVIL INDEMNITY RATES
FUNDAMENTAL PRINCIPLES AND FELONIES
Preliminary
 What is the nature of felonies?
o All felonies in RPC are public wrongs, as
distinguished from private wrongs, the latter of
which is just a breach of duty or contract of two
private parties.
o Although the State has power to prosecute
persons for private crimes, the law gives the
victim the privilege of not instituting actions for
private crimes: adultery, seduction, abduction,
etc. There must be a complaint initiated by the
offended party.
 Ratio: to protect the latter from shame
and humiliation.
 Rape is no longer a private crime. (Art.
344 of RPC) – it is now a crime against
persons.
 Under RA 8353, the marriage of the
offender and the offended party will
extinguish criminal liability of the
accused.
 Can there be common law crimes in the
Philippines?
o No. There are no common law crimes in the
Philippines. Nullum crime nulla poena sine
lege.
 What are the sources of criminal law?

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o RPC, SPL, municipal ordinances.
 What about administrative regulations? May
these partake of nature of criminal law?
o YES.
o Requisites:
 1) Violation of admin regulation must be
made a crime by the delegating statute
 2) Penalty for violation must be provided
by the statute itself.
 Are judicial decisions by the SC penal laws?
o No.
o Article 8 of NCC: judicial decisions interpreting
the Constitution form part of the legal system of
the Philippines. But decisions of the SC
interpreting criminal statutes are not penal laws
per se – they are merely interpretative.
 What are examples of laws in Philippine criminal
law that follow the positivist theory?
o 1. ISL
 The ISL was approved to uplift and
improve human life. Not focused on the
person as a criminal, but the law takes
into account economic usefulness of
offender and excessiveness of
deprivation of liberty.
o 2. Habitual delinquency law
o The State is concerned not just with protective
social order against criminal acts, but also
redeeming the individual for social ends. Not
just retribution, but reformation.
 What is the principle of generality?
o Art 14 of the NCC: Penal laws apply to all
those who live or sojourn in the Philippines,
subject to international law or treaty
stipulations.
o How does international law become
domestic law, under the 1987 Constitution?
 Transformation – requires that the I-law
be transformed into domestic law; ex.
local legislation
 Incorporation – international law is part
of the law of the land.
 Immunities from criminal prosecution by certain
individuals:
o 1. Covered by the VCDR or exempted by
treaties/laws or preferential application
 Principle is par in parem non habet
imperium – suing them is tantamount to
suing the State they represent
 Who are the diplomats covered?
Classified into four:
 A) ambassadors, ambassadors
extraordinary
 B) ministers and papal
internuncios
 C) ministers-residents
 D) charges-de-affaires

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 This principle is inviolable; they are not
subject to local penal laws. They are
immune from arrest and prosecution for
violation for local laws.
 But one may be temporarily restrained if
he commits acts that threaten public
order. The State may simply request for
recall of the diplomat – he will still not be
prosecuted locally.
 X is a citizen of Iran, but is also an
honorary consul. He was caught in
possession of drugs. Is he exempt
from prosecution?
 No. A consul is not exempt from
criminal prosecution for violation
of the penal laws of a country
where he is assigned to. He is
not entitled to any immunity or
diplomatic privileges under the
VCDR. The nature of the job of
consuls, vice-consuls, or consuls-
general is commercial in nature.
 Exception: when there is an
agreement between the
Philippines and the sending
country. But the exemption is not
based on the nature of his
position.
 Except: immunity does not cover suits
in personal and private capacity as an
ordinary citizen
 Liang: The RP and ADB entered
into an agreement under which
officers and staff members enjoy
immunity from legal processes
and prosecution, with respect to
acts performed in their official
capacity, except when the bank
waives the immunity. In this
case, the ADB officer committed
grave oral defamation, which is
ultra vires. He is not immune.
This is not covered by immunity
because he was not performing
his duty.
o 2. RA 7055 – Members of the AFP and officers
charged with service-connected offenses
 Who are officers and members of the
AFP?
 Article 1: members of AFP, those
subject to military law, members
of the Citizens Armed Forces
Geographical Units (CAFGU)
 What is the general rule?
 Civilian courts have jurisdiction
over crimes committed by
members of the AFP.

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 EXCEPTION: service-connected
offenses (provided in RA 7055)
fall under courts-martial
 Civilian court determines before
arraignment whether the crime is
service-connected
 Is it possible for a service-
connected crime to be tried by
civilian courts?
 YES. The President, before
arraignment, in the interest of
justice, may refer the crime to a
civilian court as long as it is
covered by the RPC or any other
SPL.
 What about Members of the PNP?
 They are covered by RA 6975.
Civilian courts have jurisdiction
over them because the PNP is
civilian in character.
o 3. Immunity under law/transactional immunity
 Transactional immunity is statutory
immunity from criminal prosecution as
granted by law
 Omnibus Election Code – one who
reports to the COMELEC any incident of
vote buying or vote selling, and he
testifies for prosecution: he is entitled to
immunity, even if he took part in such
crime. Sec 261 of OEC.
 P.D. 749 – immunity granted to those
furnishing information re: violation of
bribery, indirect bribery, corruption of
public officers
Art. 2: territoriality principle
 What is covered by the territory of the
Philippines?
o Phil. archipelago, atmosphere, interior waters,
maritime zone
 UNCLOS –
o Territorial sea is up until 12 nautical miles
o Contiguous zone: up until 24 nautical miles
 States may exercise control even within
this area to prevent and punish
infringement of customs, immigration,
fiscal, sanitary laws within territory or
territorial seas
 What are the exceptions to the territoriality rule of
criminal law?
o 1. Commission of an offense in a Philippine
ship or airship
 But technically this is not an exception,
because Philippine ships or airships are
part of Philippine territory
 Nationality of the ship depends on its
registration

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o 2. Forging or counterfeiting Philippine coins or
notes or government securities
o 3. Introduction into the Philippines of the
forged/counterfeited notes, coins, or
government securities
 Rationale for #2 and #3: to protect
economic security of the Philippines
o 4. Public officers and employees who commit
an offense in the exercise of their duties
o 5. Commission of any of the crimes against
national security and the law of nations
 i.e. treason, espionage, provoking or
disloyalty during war, piracy, mutiny
 Purpose of penal laws involving national
security is to protect the domestic order
and crimes against national and
economic security of the Philippines.
The law is designed to protect not only
the national and economic security of
the country, and should reach beyond
the boundaries of the Philippines,
wherever they may be found.
 Differentiate the English from the French rule:
o English (territorial) – the territorial State has
jurisdiction, except when it merely concerns
internal management of the vessel.
o French (flag) – the flag of registration has
offense, as long as it does not disturb the
peace.
 There was an English vessel in Phil. territory, not
in transit. Accused was smoking opium on the
ship.
o HELD: Convicted. The SC followed the
English rule, because he was smoking within
Phil. territory. This had pernicious effect on
Phil. territory (“disturbs the peace”) so it was
not a matter of mere internal management of
the vessel.
 A person in a Philippine ship in Vietnamese
waters got drunk and shot three people. He was
not prosecuted in Vietnam. Can the Philippines
prosecute him?
o Yes, the Philippines may exercise jurisdiction.
Although following the English rule, which we
adhere to, it must be Vietnam that exercises
jurisdiction, since Vietnam did not exercise
jurisdiction, there is nothing preventing the
Philippines from deviating from English rule.
o Rule: the territorial State has priority. If it fails
to do so, the Philippines may act under Art. 2.
 In the D.D.A., mere attempt to transport marijuana
is a crime. Can Philippine officials board the
vessel to prosecute those on board?
o General rule: the ship cannot be boarded. But
the UNCLOS said that the criminal law of a
State may not be enforced on board the vessel
to prosecute individuals, except if measures
are necessary to suppress illegal traffic of

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narcotic drugs in a commercial vessel that
passes by the territorial sea.
 What is the nature of the high seas?
o Free for all.
o Is it possible that a crime was committed
beyond the territorial sea, but yet, when the
vessel enters Phil. territorial sea, can it be
prosecuted?
 Yes, if it is a continuing crime.
o Can Philippines legislate on crimes
applying to the high seas?
 Yes, for instance, P.D. 532 – Piracy.
o Pirates wanted to unload the oil from a
vessel. They boarded the ship within Phil.
Waters, which went to Singapore, and
unloaded the oil to another vessel in the
high seas. Can they be prosecuted here?
 Yes, they can be prosecuted for piracy
even if the crime was committed in
Singapore, because the crime began in
the Philippines. It continued to
Singapore.
Art. 3: felonies
 What are the two components of felonies by dolo?
o 1. Act and omission punishable by law
(physical act)
o 2. Mens rea (intent)
 For felonies by dolo, one is not
criminally liable if there is no criminal
intent.
 What about culpa?
o Not intent, but negligence, imprudence, lack of
foresight, or lack of skill
 May someone be held criminally liable for crimes
of omission?
o YES. The following must concur:
 1. There is a positive duty provided by
law
 2. Accused acted voluntarily to not do a
positive duty
 3. Criminal intent in refusing to do it
o Examples: misprision of treason, prevaricacion
(Art. 208 of RPC), fraud on treasury
 What is mistake of fact and its implications?
o Recall: People v. Achong.
o If there is mistake of fact, then there is no
criminal intent. One is not culpable for dolo.
o The one invoking it must act with good faith.
o If he acts with negligence, such as when he is
negligent in ascertaining the true state of facts,
he may be liable for felony by culpa.
o Not a valid defense for felony by culpa or by
SPL.
 What is abberatio ictus and what are its
implications?

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o This is mistake in the victim of the blow. There
is still criminal liability, which is generally
increased (because it either becomes a
complex crime or two separate crimes –
against the intended and the real victim).
o Can treachery apply to abberatio ictus?
 Yes, because if the accused fired at his
intended target but missed, the victims
are helpless to defend themselves.
 What is error in personae and its implications?
o This is mistake in the identity. It may or may
not lower criminal liability depending on the
crime committed and if the intended crime is of
equal or different gravity.
o Ex. X intended to kill Y, but instead killed his
father, Z by mistake. Instead of homicide, it
became parricide. In this case, Art. 49 will
govern: error in personae becomes mitigating
(apply maximum period of homicide as
penalty).
 What is praeter intentionem and its implications?
o The accused did not intend to commit so grave
a wrong as that committed. This is a mitigating
circumstance under Art. 13.
o But if the means used to commit the desired
crime would also logically and naturally bring
about the actual felony, praeter intentionem
does not apply.
Circumstance Common or usual
implication
Mistake of fact Not culpable
Abberatio ictus Complex crime
Error in personae No change; or maximum
period of the lesser offense
Praeter intentionem Mitigating
 What is the rule on specific intent felonies?
o In specific intent felonies, the prosecution must
prove beyond reasonable doubt the specific
intent. But sometimes, specific intent may be
presumed.
 Ex. intent to kill must be proved. One
can presume this, for instance, from the
mere fact that the victim died from a
deliberate act. But for attempted or
frustrated homicide, intent to kill is not
presumed and must be proved.
 Ex. intent to gain in theft. One is found
in possession of recently stolen property
– there is a presumption.
o Criminal intent can be presumed from the
commission of a delictual act.
 Must motive be proved for dolo?
o Not in general. Motive is not an essential
element of crime. But there are instances

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where motive is a prerequisite to conviction of
accused.
 Political crimes –If the crime
committed, for instance murder, is in
pursuance of political motive in rebellion
or coup d’etat, it is absorbed by the
crime.
 Death by exceptional circumstances
– killed wife and paramour who were
having sexual intercourse. Not
criminally liable for homicide, if motive is
to avenge dishonor. But if he killed the
wife for some other motive, and not due
to exceptional circumstances, then he is
criminally liable.
o Motive, however, is useful when there is doubt
whether the accused committed the crime or
as regards the identity of the accused
 When is criminal intent not needed to commit a
crime?
o 1. Culpa
o 2. Crimes malum prohibitum
 Is reckless imprudence under 365 a felony under
Art. 3?
o Yes. It is a quasi-offense.
o Note the difference: Under Art. 3, culpa is
mode of committing a crime, while in Art. 365,
culpa itself is the crime punished, thus it is a
felony.
o Does mistake in the identity of the victim
constitute reckless imprudence?
 No. Mistake in identity is not culpa.
 Ex. Policemen were trying to arrest an
escapee, and they saw a man sleeping.
They thought the man was the escapee.
HELD: The felony was dolo, not culpa,
because the killing was deliberate.
o May there be a crime of frustrated homicide
through reckless imprudence?
 No. Frustrated homicide requires intent
to kill. This is incompatible with
recklessness, negligence, or
imprudence.
o Can there be conspiracy resulting from
negligence?
 There can be no conspiracy resulting
from negligence, because conspiracy is
the product of deliberate agreement
evincing intent.
o If the information charges an intentional
felony but what is proved is culpable
felony, can the accused be convicted?
 Yes, because the greater includes the
lesser offense
o Can more than one person be liable for
killing the same person, one by dolo and
one by culpa?
 Yes.

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 3 people went to carnival. X was
mentally challenged. Y poured gasoline
on X. Z lit a match and burned X.
HELD: Y who poured gasoline was
liable for reckless imprudence resulting
in homicide. He should have anticipated
that after pouring gasoline, someone
could light a match – lack of foresight. Z
is liable for felony by dolo – deliberate
act. (P v. Pugay)
 Are crimes punishable by SPLs automatically
crimes malum prohibitum?
o Not all. Some can be malum in se.
o A. Plunder is malum in se, for three reasons:
 1. Although defined by SPL, it is malum
in se because the crimes constitutive of
plunder are mala in se. Under the law,
mitigating and extenuating
circumstances are applicable to plunder.
 2. The predicate crimes are punishable
by RP to death.
 3. Plunder is inherently immoral and
wrong.
o B. Sec. 27B of the Omnibus election code: a
member of the BEI who tampers with election
results.
 The crime is malum in se, although the
crime is defined by SPL. It is inherently
immoral and wrong to tamper with
election results.
 Give examples of SPLs that are malum
prohibitum:
o A. Possession of unlicensed firearm.
 But mere transient possession in RA
8294 is not a crime: there must be intent
to possess, not mere possession.
 Can the use of unlicensed firearm be
an aggravating circumstance?
 Yes. RA 8294 provides that it is
an aggravating circumstance.
o B. Violation of Trust Receipts law
o C. Anti-fencing Law
 No need to prove intent to gain
 Can one be liable for both a felony and a SPL for
one delict?
o Yes.
o Ex. One issued a check for a transaction which
bounced. Liable for BP 22 AND liable for
estafa.
o Ex. One pretended to be a licensed recruiter.
Liable for both illegal recruitment and estafa.
 Can one be liable for crime defined by SPL,
commit another felony and then become liable for
a special complex crime?
o Yes. The anti-carnapping law (RA 6539). If
the offender kills the driver or occupant to take

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the car, he is guilty of special complex crime of
carnapping with murder.
 May a felony by dolo or culpa absorb a crime
which is malum prohibitum?
o No, a felony by dolo or culpa cannot absorb a
malum prohibitum crime.
 Two persons went to the public forest and cut
timber, which is a violation of the Forestry Code.
They were convicted, on basis of conspiracy. The
court ruled that they were guilty to conspire to
violate the Forestry Code. Is the SC decision
correct? Can there be conspiracy to commit
malum prohibitum?
o No. The SC is wrong. Under Art. 8, they must
agree to commit a crime (felony). Thus, this
does not apply to malum prohibitum. (Tigoy v.
P)
Art. 4: felonies and impossible crimes
Par.1 – natural and logical consequence of felonies
 What is the rule on liability for those who have
committed a felony?
o That person is liable for natural (ordinary
course of things) and logical (reasonable
connection) consequences of his criminal act
o The act must be the proximate cause of the
effect.
o What is proximate cause?
 “The cause, which in its natural and
continuous sequence, unbroken by any
efficient intervening cause, produces the
injury and without which the result would
not occurred”
 And that cause may cause another thing
to occur, which produces the injury
o Which circumstances do not affect the
existence of proximate cause?
 1. Pre-existing condition of the victim
(pathological)
 2. Negligence of doctor
 3. Refusal to get medical help or delay
in getting it
o When is something not the proximate cause
of the effect?
 1. There is an active force that
intervened between the felony
committed and the death of the victim,
 2. The resulting injury or damage is the
intentional act of the victim.
 Examples where even if the resulting wrongful act
was different from the offender’s intention, he is liable
for that resulting act
o Inserted vibrator in anal orifice of victim. It was
rusty so the victim died (Complex crime of
sexual assault with homicide under RA 8353)
o Accused robbed a store and to shut up the
woman inside, he jammed a pan de sal in her

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mouth. She died by asphyxiation. Convicted
of robbery with homicide.
o The kidnap victim died from a heart attack due
to fear. The accused is liable for kidnapping
with homicide.
o Accused robbed victim of belongings, the
victim ran away and jumped in the river. She
drowned. Accused is liable since he created a
sense of fear in the mind of the victim.
o Even if the doctor is negligent, but the accused
inflicted mortal wounds on the victim, the
negligence of the doctor is NOT an active
intervening force that exculpates the accused.
 But there are times the doctors’ acts are
exculpatory.
 Ex. Victim was brought to the hospital,
but the doctor was so intoxicated, he
gave the victim poison instead of
medicine. The doctor was liable.
 Is it possible that two persons are liable for the
death of the same person even if there is no
conspiracy?
o Yes. Two persons went to a bar, did not know
each other, and sat on different tables. They
saw an annoying person. One person stabbed
him. The other, not knowing that the first one
stabbed him too, stabbed him again. Both
wounds were mortal.
o Both are liable for homicide.
 An accused committed reckless imprudence, and
due to this, two people died. Can he be
prosecuted for reckless imprudence resulting to
double homicide? May reckless imprudence
result into a complex crime?
o YES, because reckless imprudence is a felony
under Art. 3 and Art. 48 talks about felonies as
component crimes.
 What is the relevant presumption under Rule 131,
Sec 5(c) of the Rules of Evidence?
o A person is presumed to contemplate the
ordinary consequences of his acts, and expect
those.
 But intent is an internal act. How do you
determine this?
o Through circumstances of the case.
 Does Art. 4, par. 1 regarding liability for natural
and logical consequences apply to culpable
felonies?
o No.
o Par. (1) is specific: it refers only to delitos.
o NOTE: Boado has a different opinion, noting
that “delitos” means felony in general, which
can include culpable felonies. The classic
example she gives is person X jumping off a
building to commit suicide, but does not die
because he lands on Y, who dies. X is liable
for the death of Y even if committing suicide is
not a crime per se.

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 What will apply to culpable felonies?
o Article 365 of the RPC applies.
o The offender is liable for whatever damage or
injury caused by him.
Par. 2 – impossible crimes
 What are the elements of an impossible crime?
o 1. The offender performed an act which would
be an offense against persons or property
o 2. He performed the act with criminal intent
o 3. Accomplishment of the act is inherently
impossible or the means employed were
inadequate or ineffectual
 Differentiate “factual or physical impossibility”
from “legal impossibility”:
o Factual or physical impossibility
 There is intent and performance but no
accomplishment due to extraneous
circumstances that makes
accomplishment impossible.
 The factual condition must be unknown
to the offender.
 What if the person knew the factual
condition?
 There is no crime and there is no
impossible crime.
 Examples:
 Offender accepted goods which
he believed to have been stolen,
but which were not, in fact stolen
 Offender offers a bribe to
someone he believes is a public
officer, but is in fact not
 Offender believed his gun was
loaded, pointed it as his wife, and
pulled the trigger. But it was
empty.
 Intod v. CA – fired guns into
empty bedroom, because the
intended victim was out of town
 Jacinto v. P – Sales agent,
instead of turning over the check
to employer, gave it to a relative.
The check bounced. HELD:
impossible crime, because at the
time the petitioner stole the
check, there were no funds in the
bank. (Problem with this case:
What about postdated checks?
Does not the check (paper) itself
have some value?)
o Legal impossibility
 There is intent and performance of a
crime, but the consequence could not
result into a crime.

13. 13
 Even when completed, it would not
amount to a crime.
 Ex. Stole a watch that turned out to be
his.
 Ex. Offender saw a naked woman lying
on the beach. He inserted his penis into
his vagina. It turned out she was dead.
Impossible crime, because you cannot
rape a dead person.
 Is an impossible crime a crime?
o No. But it is still punished because the law
intends to punish criminal
inclinations/tendencies.
 What is the penalty for impossible crimes?
o Under Art. 59 of the RPC, the imposable
penalty for impossible crime is arresto mayor
(correctional penalty).
o What is the potentially inequitable situation
arising from this penalty?
 Supposing I saw a person on a bed,
and I punched him. He sustained slight
PI. But he turned out to be dead, so it
was an impossible crime.
 Under Art. 266(3) of the RPC the
penalty is arresto menor for slight PI.
But for an impossible crime, the penalty
is arresto mayor. So if that person were
alive, the penalty would be less than if
he were dead!
Art. 5: Duty of courts to report
 When does the court’s duty to report to the
President, through the DOJ, apply?
o 1. Acts which are not punishable by law, but
should be
o 2. Clearly excessive punishment
o N.B. in these cases, the court must still render
the proper decision notwithstanding the report.
 Remedy is executive clemency, in case
of excessive penalties.
 The court can simply recommend, but
not impose clemency, because it’s still
the Executive’s prerogative.
 Article 5 does not apply to crimes defined by SPL,
because of the use of the words “degree of malice,”
etc.
 This brings to mind B.P. 22, in relation to A.C. 12-
2000, as clarified by A.C. 13-2001:
o S.C. noticed that people are using the courts
as collection agencies and are clogging up
dockets
o So S.C. issued a circular dissuading people
from filing B.P. 22, and for judges to just
impose fines
 A.O. 08-2008, issued 25 Jan. 2008
o Libel – imposable penalty is imprisonment or
fine
o According to the S.C., preference is fine over
imprisonment

14. 14
Art. 6: Stages of consummation
 When is a crime consummated?
o When all the acts necessary for its
accomplishment and execution are present.
o The accused has reached the objective stage
of the offense as he no longer has control of
his acts, having performed all that is necessary
to accomplish the purpose.
 In general, all the felonies in Book II are
consummated crimes. What is the exception?
o Attempted or frustrated robbery with homicide
 Why do we punish attempted stages?
o Attempts are punished because there is just as
much need to reform a person who has
unsuccessfully attempted to commit a crime
 What are the elements of an attempted crime?
o 1. Commenced execution “directly, by overt
acts”
 There must be an overt, external act
and there is crime intended to be
committed
 There is direct connection to crime
intended to be committed – must have
an immediate and necessary
connection.
 Ex. Merely opening a hole in the
wall of a bank is not yet
attempted robbery because there
is no overt act evincing robbery
yet. At most, it’s attempted
trespass.
 It can be the first of a series of acts that
would produce the intended crime, as
long as the intended crime is
established or known
 Differs from preparatory acts, which are
just means or measures necessary to
produce the desired end.
 Ex. surveillance
 Ex. buying poison
 Ex. conspiracy and proposal,
unless the law punishes the
conspiracy/proposal per se
o 2. But offender did not complete all acts of
execution to produce the felony
 Still at the “subjective phase” of the
commission of crime – still has full
control of acts, and has not completed
the needed acts yet
o 3. Due to cause or accident other than
spontaneous desistance
 Is he is still in the subjective phase
and he desists from committing the
crime, is he liable?
 NO. He is not liable.
 The reason for desisting need not
be legal or moral. It could be

15. 15
remorse or fear – as long as he
desists voluntarily.
 But if he desists during the
objective stage, there is no
exculpation
 But may he be liable for any other
felony already committed apart from
that desisted from?
 Yes.
 What are the elements of a frustrated crime?
o 1. All the acts of execution needed to produce
the felony are present
 So in the same way, the objective stage
has been reached
o 2. But it was not produced by reason of causes
independent of the perpetrator’s will
 When does frustrated homicide/murder exist?
o It is not enough to wound the other person.
The wound inflicted must be mortal. If it is not
mortal, then it is a mere attempt.
o Even if the accused believed that he inflicted a
mortal wound, but he did not, it is merely
attempted, not frustrated. The nature of the
wound controls, not the belief of the person.
 What are crimes where no frustrated stages exist?
o 1. Rape
 As long as the penis enters the labia
majora, it is already consummated
 It is not the mere entry; the SC said that
the entry must be in relation with the
intent to have carnal knowledge of the
woman
 If it is just in the mons pubis –just
attempted. (“Bombardment of the
drawbridge, even if the troops do not
successfully enter the castle.” If no
intent, just acts of lasciviousness.)
o 2. Sexual assault
 By analogy
o 3. Robbery
 One is liable for consummated robbery if
one takes possession of the personal
property of the other, however brief it
may be.
o 4. Theft
 No more frustrated theft, under same
ratio: no need to have disposed of
stolen property
o 5. Adultery
 Essence of the crime is sexual
congress: so same principle as in rape
applies
o 6. Felonies by omission
 No attempted or frustrated stage
o 7. Falsification of public document

16. 16
 There is no attempted or frustrated
falsification of public document unless
the falsification is so imperfect.
o 8. Arson
 The moment burning occurs, even for a
small portion only, the offense is
consummated
 All overt acts prior to burning: attempted
stage
o 9. Corruption of public officials
 When the offer is accepted by the public
officer, then the offense is
consummated
 When the offer is rejected, then it is just
an attempt
 What are formal crimes?
o Those that are always consummated because
the offender cannot perform all the acts
necessary to consummate the offense without
consummating it.
o Examples of formal crimes?
 1. Physical injuries
 Since their punishment is based
on result and gravity of injury
 2. Slander
 The moment the words are
uttered and heard by third
persons, the crime is
consummated.
 Is there attempted or frustrated culpa?
o No.
 What if what was charged was the frustrated
stage and only the attempted crime was proved.
Can an accused be convicted?
o Yes, the frustrated stage necessarily includes
the attempted stage. Same with consummated
crimes and attempted/frustrated stages.
Art. 7: light felonies
 What are light felonies?
o Those infractions of law where the penalty is
arresto menor or fine not exceeding 200 pesos
 When are light felonies punishable?
o Only when they have been consummated
o Except those against persons or property
 Who are punishable for light felonies?
o Only principals and accomplices.
o Accessories are not liable because light
felonies are punishable with arresto menor and
accessories are penalized two degrees lower
than the principal, which is non-existent in this
case.
 How do you categorize reckless imprudence
resulting into slight PI?
o The crime of reckless imprudence is a light
felony, under the last paragraph of Art. 9 of the
RPC. Punishable only by public censure.

17. 17
Art. 8: conspiracy and proposal
 When is there conspiracy?
o When two or more persons come to an
agreement concerning the commission of a
felony and they decide to commit it.
 What is proposal?
o A person who has decided to commit a felony
proposes its execution to some other person or
persons.
 Is conspiracy or proposal a felony?
o No. Conspiracy under article 8 is not a felony,
because there is no penalty provided by law.
o Article 8 is thus a mode of incurring criminal
liability.
o Enumerate at least two felonies punished
pursuant to Article 8 as a felony per se:
 Conspiracy to commit treason
 Conspiracy to commit rebellion
o For the above acts, the mere conspiracy is
punishable. But the moment they actually
commit treason or rebellion, conspiracy loses
its juridical personality and it becomes a mere
mode to commit a crime.
 What is required to prove a conspiracy?
o Same degree of proof to establish the crime, in
order to prevent finding someone guilty of a
crime except proof beyond reasonable doubt.
o But it can be proved by indirect proof, such as
inferences from acts of the accused before,
during, and after the commission of the crime.
o These acts must indubitably point to or indicate
a joint purpose, concerted action, and singular
interest.
 What is required to be done in order to become a
co-conspirator?
o Intentional participation in the transaction with
a view to furthering the common design.
o Except when one is a mastermind, he must
perform some overt art as a direct/indirect
contribution to the crime’s execution. The
overt act can be active participation, moral
assistance by being present at the scene of the
crime, or exerting moral ascendancy.
o But merely being present is not sufficient to
prove conspiracy; it must be shown that there
is intent to provide moral support, etc.
 What are the two types of conspiracy?
o 1. Express conspiracy
 There is prior agreement
 A conspirator is liable as long as he
appeared in the scene of the crime.
 Except when he is the mastermind,
where it doesn’t matter whether he
appears or not, since he is a principal by
inducement

18. 18
 Degree of actual participation is
immaterial: all conspirators adopt the
acts of the others
o 2. Implied conspiracy
 Deduced from the acts of the offenders.
The agreement to pursue a common
design and the unity of purpose is
instantaneous.
 It is essential that the conspirator
participated in the commission of the
crime. Mere presence is not enough
because mere presence does not prove
intent to join the commission of the
crime, without prior agreement.
 Three kinds of special conspiracy:
o 1. Wheel conspiracy – there is one person
(hub) and his underlings (stokes)
 We have this. The others, not yet
recognized.
o 2. Chain conspiracy – using legitimate
enterprise to distribute narcotics
 Ex. drugs
o 3. Enterprise conspiracy – Racketeer
Influenced and Corrupt Organizations (RICO)
 What is the kind of conspiracy and connivance
contemplated in Article 157 (Evasion of service of
sentence)?
o This is the situation where a convict or a
person escapes in connivance with another
person.
o The conspiracy or connivance in connection
with the crime committed here is an essential
condition for the commission of said crime, in
connection with Art. 223 of the RPC (Infidelity
in the custody of prisoners). The penalty is
prision correccional in maximum period instead
of medium and maximum period.
 What are the characteristics of conspiracy?
o 1. Singularity of intent
o 2. Unity in the execution of the unlawful
objective
 Does Art. 8 apply to SPLs?
o Generally, no; it does not apply to crimes
defined in SPL. However, if the SPL provides
that conspiracy to commit a crime under that
law is a crime in itself, then it is.
 Ex. DDA, Sec. 26: conspiracy to commit
any of those crimes enumerated in that
section is a crime by itself (“sale,
importation, distribution and conspiracy
to do such”)
 Ex. Access device regulation, Sec. 11:
conspiracy to commit access devise
fraud is a crime

19. 19
 Ex. Anti-terrorism law: conspiracy to
commit terrorism is a crime punishable
with 40 years of imprisonment
o If there is no provision in the SPL, Art. 8 can be
considered a mode to commit that crime.
 Two or more persons who conspire to
commit a crime of BP 22 liable under
Art. 8 of the RPC (Andan v. P)
 Recall the controversial Tigoy case re:
conspiracy to violate the Forestry Code
 Does Article 4, par. 1 apply to Article 8?
o Yes. Each conspirator is responsible for
everything done by his confederates, which
follow incidentally in the execution of the
common design, as one of its probable and
natural consequences even though not
intended as part of the original design.
o Conspirators are held to have intended the
consequences of their act, by engaging in
conspiracy. So, liability extends to collateral
acts incident to and growing out of the
conspiracy.
o X and Y agreed to rob the victim only. But
he resisted and X killed the victim. What
crime did X and Y commit?
 HELD: All the conspirators, thus both X
and Y, are guilty of robbery with
homicide.
o What if one of the co-conspirators (ex.
robbers) prevented the others from
committing the extra act of homicide or
rape?
 HELD: He is only liable for robbery only,
and not homicide and rape. It does not
matter if he succeeds in preventing
them of not.
o X, Y, and Z committed robbery. After they
all escaped, X a car and carnapped it after.
 HELD: Only he was liable for
carnapping because it’s not intended as
part of the plan and is not incidental to
the common design.
 Conspirators are necessarily liable for
the acts of another conspirator unless
such act differs radically and
substantively from that which they
intended to commit.
 Until when does conspiracy last?
o Conspiracy continues until the object is
attained. Conspiracy is a continuing event,
unless in the meantime, they abandon the
conspiracy or the conspirators are arrested.
 X and Y agreed to commit robbery and decided to
commit it. X stabbed the victim and ran. Y did
not run and he was caught. Defense: he was not
guilty of the crime, because he desisted when he
did not run. Is the defense tenable?

20. 20
o HELD: The mere failure or refusal to flee after
the commission of the crime does not amount
to a disavowal of the conspiracy. There must
be an overt act to disassociate oneself from the
conspiracy.
 Relate conspiracy with aggravating
circumstances of evident premeditation and price:
o Evident premeditation only applies for express
conspiracies. It does not apply to implied
conspiracies, because these are spontaneous.
o Price applies to the co-conspirators acting as
offeror and acceptor.
 Does the laxity of a public officer in investigating
or prosecuting indicate that he is a co-
conspirator?
o Not per se. It must be shown that he had
foreknowledge and participation in the plan in
the first place.
 What are the possible liabilities of a head of office
when his subordinates are able to conspire to
commit a crime?
o 1. Conspiracy (if he is aware of the design and
agreed to it)
o 2. Culpa – in this case, he is not part of the
conspiracy because there can be no
conspiracy by culpa
o What is the Arias doctrine?
 The head of office can rely to a
reasonable extent on his subordinates
and their good faith. There has to be a
special reason why he should examine
acts or papers in detail. There is no
negligence/culpa if he fails to examine
an error because of the sheer amount of
paperwork that passes through his
hands.
Art. 9: severity of felonies
 Classify felonies as to severity:
o 1. Grave felonies
 Capital punishment
 Afflictive penalties in any of its periods
(prision mayor to reclusion perpetua)
o 2. Less grave felonies
 Correctional penalties in their maximum
period (destierro, suspension, arresto
mayor, prision correccional)
o 3. Light felonies
 Arresto menor
 Fine not exceeding P200
 N.B. but in Article 26, a fine of P200 is
already a correctional penalty
 What is the relevance of knowing this
classification?
o 1. Complex crimes require grave or less grave
felonies
o 2. To determine the duration of the subsidiary
penalty

21. 21
o 3. To determine the duration of detention in
case of failure to post the bond to keep the
peace
 N.B. but there is no crime that requires
a bond to keep the peace
o 4. Different prescriptive periods
o 5. To determine whether there is delay in the
delivery of the detained persons to the judicial
authority
o 6. Penalty for quasi-offenses (Art. 365)
Art. 10
 What is the relationship between RPC provisions
and SPLs?
o In general, RPC provisions do not apply.
o But the RPC is supplementary to the SPL,
unless provided otherwise.
 What if the penalty provided by an SPL follows
RPC nomenclature?
o The RPC applies suppletorily, ex. mitigating
circumstances.
 R.A. 9165, amended by 9344; Dangerous Drugs
Act – “provisions of RPC shall not apply to violations
of DDA, except in the case of minor offenders”
o Reclusion perpetua, not L.I.
o Penalty may be reduced by 1 or 2 degrees
under Art. 63
 What does the Anti-hazing law provide as re:
praeter intentionem?
o Sec. 4 provides that praeter intentionem does
not apply as a mitigating circumstance for
violation of Anti-Hazing law
o The law also enumerates who will be deemed
principals, etc.
 What does the anti-terrorism law provide as re:
the relationship of its penal provisions and RPC
provisions?
o Conviction of a person under said law
constitutes a bar to the prosecution of that
person under the RPC or another SPL for the
predicate crime
 What does R.A. 7610 – Child abuse law, Sec. 10
provide?
o Where the victim of murder, homicide,
intentional mutiliation, or SPI is under 12 years
old, the penalty shall be reclusion perpetua
 VAWC: If the offender commits act of physical
violence and there is intent to kill, what is the
punishment?
o Crime is NOT violation of physical violence
provision under VAWC but attempted,
frustrated, or consummated parricide,
homicide, or intentional mutilation
CIRCUMSTANCES AFFECTING LIABILITY
Art. 11: justifying circumstances

22. 22
 Are complete self-defense and other provisions
under Art. 11 (justifying circumstances)
absolutory causes?
o Yes, because the accused is not deemed to
have committed a crime. An absolutory cause
means that the accused does not incur criminal
liability.
 Is Article 12 an absolutory cause as well?
o No. There is technically a crime, although the
person is exempt from liability. The basis here
is that the person is not acting with complete
intelligence. There is no mens rea.
 What are other absolutory causes?
o 1. The offender was instigated
 Differentiate instigation from
entrapment:
 In entrapment, the idea of the
crime comes from the
lawbreaker. Thus, this is not
absolutory. The peace officer is
without criminal liability.
o Ex. buy-bust
operations
 In instigation, the idea of the
crime is induced in the mind of
the lawbreaker. It is absolutory
due to public policy. The peace
officer is a principal by
inducement.
o 2. Spontaneous desistance in the attempted
stage
o 3. Attempted or frustrated light felonies, except
against persons and property
o 4. Accessories in light felonies
o 5. Accessory relatives who help relatives
escape (Art. 20)
o 6. Art. 247 – death under exceptional
circumstances
o 7. Certain relatives in estafa, theft, malicious
mischief
o 8. Somnambulism
o 9. Mistake of fact (Achong)
o 10. Repeal of penal law, whether absolute or
modification
 What is the nature of self-defense?
o Self-defense is an act to save life; thus, it is an
act, not a crime.
o There is no such thing as accidental self-
defense because it contemplates intent by the
defending party.
 What does self-defense include?
o Defense of body and limb
o Rights as person, including honor
o Property and liberty
 If the accused in arraignment pleads self-defense,
is he making a judicial confession?
o It is NOT a judicial confession, but just a
judicial admission. He does not admit penal

23. 23
liability. He is merely admitted that he killed
the victim.
 If the accused admitted killing the victim and
pleads self-defense, is the burden of proof shifted
to accused?
o No. The burden of proof never shifts; only the
burden of evidence shifts. (Although Boado
seems to have mixed up these terms because
she says that the burden of proof shifts.)
 What are the requisites of self-defense?
o 1. Unlawful aggression
o 2. Reasonable means necessary to repel it
o 3. Lack of sufficient provocation by the
defender
 What is ABSOLUTELY necessary out of these?
o Unlawful aggression. Without it, even if the
two others are present, there can be no
complete or incomplete self-defense.
 If it is unlawful aggression alone, then it
is an ordinary mitigating circumstance.
 If it is unlawful aggression plus one
other, then it is a privileged mitigating
circumstance.
o What is the nature of needed unlawful
aggression?
 It must continue up until the act of self-
defense, because once it ceases, the
offender can no longer invoke self-
defense.
 If there is no more unlawful aggression,
the “self-defense” is just mere retaliation
and thus invalid.
 What if the other two are missing?
o There is incomplete self-defense and thus it is
just a mitigating circumstance, not justifying.
 How is unlawful aggression defined?
o Actual peril to one’s life, or merely a threat, but
real and imminent.
 Is slapping unlawful aggression?
o Yes. It is unlawful aggression against his
honor. The face of a person is akin to his
dignity, honor, etc.
 What is the effect of presence of multiple wounds
on the victim in a claim of self-defense?
o The nature of wounds belies a claim of self-
defense because it shows a determined effort
to kill the victim, and not mere self-defense.
 Compare P v. Jaurige and P v. De la Cruz as re:
reasonable means:
o BOTH cases involved defense of honor.
o Jaurige: mere touching of thigh, in church, in
daylight. She killed him with fan knife. No self-
defense appreciated. The means used were
not reasonable.
o De la Cruz: groped in dark alley. Killed with
knife. Allowed to exercise self-defense.
o THUS, whether means are necessary is case-
to-case.

24. 24
o What do you consider?
 1. Whether the aggressor was armed
 2. The nature and quality of weapon
used
 3. Physical conditions and sizes of the
parties involved
 What is the “rational equivalence” rule in
reasonable necessity?
o The law does not demand material
commensurability between the means of attack
and defense. So this doctrine considers the
nature of imminent danger, and instinctual
actions. Note that a person in peril will not act
as rationally as normally expected.
 What is the rule when a person is attacked?
o Not anymore “retreat to the wall”; now, it is:
“Stand your ground when in the right.”
 If two people agree to fight, is there valid claim of
self-defense?
o No, because there is an agreement. There is
no unlawful aggression.
o What is the exception?
 When they agreed to fight, but one
attacked ahead of the agreed time.
 What is the extent of defense of property rights?
o May use such force as reasonably necessary
to prevent or repel the unlawful physical
invasion of his property. This does not seem to
involve the taking of human life.
o Dissent of P v. Narvaez: in order to defend
against the person, there must be aggression
not just against property rights but also against
the person of the owner.
o Correlate this with Art. 429 of the Civil code, or
the doctrine of self-help.
 When is there sufficient provocation?
o Provocation is sufficient if it is sufficient to
incite the person to attack.
 Is Art. 247 an absolutory cause?
o Yes. Because the only imposed “penalty” is
destierro. And that this is more of protection
for the one who killed.
o NOTE: differentiate Art. 247 from cases where
Self-defense under Art. 11 applies, even if the
situation is the same (catching spouse in
sexual congress)
 Ex. Husband caught wife in sexual
congress. The wife, caught, wanted to
kill him, so he took the knife and killed
his wife.
 The accused arrived and saw his wife in the act of
sexual intercourse. The paramour ran and the
wife dressed up. Gonzales went out. When he
got back, he heard rustling leaves. He saw the
paramour and the wife, who was putting on her
panties. He stabbed his wife. Can the husband
invoke 247? (P v. Gonzales)

25. 25
o HELD: You cannot invoke 247 because at that
time, she was already putting on her panties,
not in actual sexual intercourse. (P v.
Gonzales)
o DISSENT: follow this – You are unfairly
punishing him if we strictly apply the law. But
what can you deduce from the fact that she
was wearing her panties from a naked state. It
is asking too much to actually catch them in the
act of actual sexual congress.
 Can one invoke Article 11 in Article 247 cases?
o Suggestion: Husband also has right to invoke
his honor and defend it, so Art. 11 can be
invoked by the one discovering the sexual
congress. He can also invoke 247, obviously.
o Prefer 11 over 247, because the latter results
in destierro. It is not a penalty, but a limitation
of his liberty.
 Can you invoke Art. 247 if there is mistake of fact?
o Yes. Apply the Achong doctrine by analogy.
o Example: The husband saw movement of
buttocks, but the paramour’s penis hasn’t
entered his spouse’s vagina yet.
 Are the RPC provisions applicable to VAWC?
o Yes. Recall Art. 10: how RPC provisions apply
suppletorily, unless provided otherwise.
o Under RA 9262 (VAWC), Art 47: “RPC
provisions supplement the VAWC law.”
o The VAWC law even uses RPC terms for
penalties:
 SPI: P.M.; LSPI: P.C., Slight PI: A.M.
 What are the circumstances in P v. Genosa?
o The SC recognized the Battered Woman
Syndrome. But there was no RA 9262 then yet
so it’s still not an absolutory cause.
o The SC did not appreciate ordinary self-
defense because the threat to the woman’s life
has already ceased. There was no more
unlawful aggression.
o But the SC appreciated the following mitigating
circumstances:
 1. Passion and obfuscation
 2. Diminished will power
 What is the Battered Woman Defense under RA
9262?
o The Battered Woman Syndrome (BWS) is a
justifying circumstance, notwithstanding
absence of any requisites of self-defense.
o The woman incurs neither criminal nor civil
liability.
o The defense is separate from and independent
from self-defense.
 Who is a battered woman?
o One repeatedly subjected to forceful physical
or psychological behavior by a man with whom
she has an intimate relationship with in order to
coerce her to do something he wants.

26. 26
o The cycle has to happen at least twice: 1.
Tension-building phase, 2. Acute battering
incident, 3. Tranquil, loving phase.
 What are the characteristics of the BWS?
o 1. The woman believes the violence was her
fault
o 2. inability to place responsibility for the
violence elsewhere
o 3. She fears for her and her children’s lives
o 4. Irrational belief that offender is omnipresent
and omniscient
 What are the requisites of defense of relative?
o 1. Unlawful aggression
o 2. Reasonable necessity of the means
employed to prevent or repel it
o 3. In case of provocation given by the person
attacked, the defender must have had no part
therein
o Who are the relatives under this provision?
 Spouse, ascendants, descendants,
legitimate, natural, and adopted siblings,
or relatives by affinity within the same
degrees
 Relatives by consanguinity until the
fourth degree
 Anyone beyond this enumeration:
defense of stranger
 What are the requisites of defense of strangers?
o 1. Unlawful aggression
o 2. Reasonable necessity of the means
employed to prevent or repel it
o 3. Person defending is not motivated by
revenge, resentment, or other evil motives
 What are the requisites of state of necessity as a
justifying circumstance (Art. 11, par. 4)?
o 1. The evil sought to be avoided actually exists
o 2. The injury feared is greater than that done to
avoid it
o 3. There is no other practical and less harmful
means to prevent it
o What if the party invoking state of necessity
is responsible for the peril?
 Cannot invoke this defense.
o What is the injury contemplated under
requisite number 2?
 This is a broad concept. It can be
against property, liberty, etc.
 What is the rule on civil liability for acts in the
state of necessity?
o Those who were benefited by the act
performed are liable to those to whom injury is
caused. Note that this is a purely civil liability
and does not arise from criminal liability.
 What are the requisites of lawful exercise of right
or duty (Article 11, par. 5)?
o 1. Act out of duty or office
o 2. Injury caused is the consequence of the
performance of that duty or right

27. 27
 What is the limitation on the performance of
duties?
o It must be exercised neither capriciously nor
oppressively, and within reasonable limits.
There must act with sound discretion.
o X was a deranged man who was already
incapacitated by the police from doing
further harm. Y, one of the policemen,
seeing X lying on the ground, shot him
further on the forehead. Can Y invoke
performance of duty?
 No. The act performed was
unreasonable and excessive.
 Can a policeman invoke SD and performance of
duty at the same time?
o Yes.
o An example is when a policeman saw one
person about to shoot another. The policeman
gave a warning and the offender pointed the
gun at the policeman. The policeman shot the
offender. He was both defending himself and
performing his duty in preventing the other
person from being shot.
 What are the requisites of obedience to superior
order?
o 1. An order has been issued by a superior.
o 2. The order is for a legal purpose
o 3. The means used to carry out the order were
lawful
o What if the order is illegal?
 Cannot follow the order unless it is
apparently legal and the subordinate did
not know it was actually illegal.
Art. 12: exempting circumstances
 What are the exempting circumstances?
o 1. Imbecility or insanity
o 2. Minority
o 3. Accident
o 4. Compulsion of irresistible force
o 5. Impulse of uncontrollable fear
o 6. Insuperable or lawful cause
 What are the characteristics of exempting
circumstances?
o The act is criminal, but the criminal is exempt
from criminal Liability
o But there is civil liability
o The emphasis is the actor, not the act
 What is insanity?
o There is a complete deprivation of intelligence
in committing the act, and so there is complete
absence of ability to discern.
o Not mere abnormality of mental faculties or
mere frenzy due to anger.
 When should insanity exist?
o In the period immediately before or at the
precise moment of doing the act.

28. 28
o His mental condition after doing the act is
inconsequential.
o Note that there is a presumption of sanity and it
must be disproved beyond reasonable doubt.
 What does it indicate when the actor surrendered
to the police after committing the crime?
o There is discernment because remorse is
inconsistent with insanity
 What if the insanity occurs after the commission
of the crime?
o Refer to Art. 79, which provides that one who
becomes insane or imbecile after final
sentence will have the sentence suspended as
to the personal penalty. He will only be
sentenced when reason is regained.
 What if there is no complete impairment or loss of
intelligence, and just a partial one?
o It is just a mitigating circumstance: illness that
would diminish exercise of will-power without
depriving consciousness of his acts
o A common example is schizophrenia: there is
no complete deprivation of intelligence, but
there is difficulty distinguishing fantasy from
reality
 How is mental condition of an accused
determined in trial?
o The judge must order the examination of the
accused by a medical expert. The judge
cannot do it alone, because he is not an expert
on this matter.
 Under RA 9344, how are minors classified?
o Children at risk are those vulnerable to and at
the risk of committing criminal offenses due to
personal, familial, and social circumstances.
o Children in conflict with the law are those
accused of or adjudged as having committed
criminal offenses.
 What are the benevolent features of RA 9344?
o Age 15 and below = age of absolute
irresponsibility
 Exempt from criminal liability
 Subject to intervention program
o Age over 15 and under 18 = criminally liable
only where there is discernment
 No liability if there is lack of
discernment. Also subject to
intervention program.
 Liable if there is discernment. However,
he will under a diversion program.
o Is the minor over 15 but below 18 acting
with discernment still entitled to the
privileged mitigating circumstance under
Article 68(2)?
 Yes. RA 9344 did not change this.
 What are the diversion programs for those over 15
but below 18 acting with discernment?

29. 29
o Note: these are without going through court
proceedings
o 1. When the penalty of the crime is not over 6
years:
 Crimes with victims:
 Diversion program before law
enforcement officer or punong
barangay
 Involves mediation, family
conferencing, conciliation with
child and parents/guardians
 Crimes without victims:
 Diversion program before the
local DSWD officer, with child
and parents/guardians
o 2. When the penalty of the crime exceeds 6
years:
 Diversion is before courts
 In case the penalty is not more than 12
years or just a fine, the court can
determine whether diversion is
appropriate or not
o 3. If the offense does not fall under any of the
above or the child or parents/guardian does not
consent to diversion, the one handling the case
forwards the records to the prosecutor or court
within 3 days – and then the case is filed
according to regular process
 Can a child be detained pending trial?
o Yes, but only as a last resort and only for the
shortest possible period of time. The
authorities can resort to alternative measures
such as close supervision, intensive care, or
placement with a family/educational setting.
 What is the rule on automatic suspension of
sentence?
o Children below 18 at the time of commission of
the crime found guilty of the offense are placed
under suspended sentence without need of
application. The court then determines and
imposes the appropriate disposition measures
afterwards.
o What if the then-child is over 18 years old
upon the pronouncement of guilt?
 It doesn’t matter; there is still suspended
sentence.
o What if the child reaches 18 while under
suspended sentence?
 The court determines whether to:
 1. Discharge the child
 2. Order execution of sentence
 3. Extend suspended sentence for a
certain period, or until he reaches the
maximum age of 21
o What if the child undergoes period of actual
detention or commitment?
 It will be credited in full.
 What is the provision on probation?

30. 30
o Upon application at any time, the court can
place the child on probation in lieu of service of
sentence. (This amended the Probation Law)
 What is a status offense and how is it treated
under the law?
o Any conduct which is not an offense when
committed by an adult will not be considered
an offense and is thus not punished if
committed by a child.
o Ex. curfew laws
 Did Ra 9344 retroact?
o Yes, it retroacted to pending cases and those
minors already convicted.
 Under 9344, the minor is still exempt from specific
offenses even if he or she acted with discernment.
What are these?
o 1. Vagrancy
o 2. Prostitution
o 3. Mendicancy
o 4. Sniffing rugby
o What happens?
 These persons would undergo
appropriate counseling and treatment
program.
 When is a child in conflict with the law subject to
preliminary investigation and filing of
information?
o 1. Child does not qualify for diversion
o 2. Child or parents/guardians do not agree to
diversion
o 3. Prosecutor determines that diversion is not
appropriate for the child, considering
assessment/recommendation of the social
worker
 Who are the minors disqualified from suspension
of sentence?
o 1. One who once enjoyed suspension of
sentence already
o 2. Convicted for offense punishable by death or
life imprisonment
 Note: “punishable” need not be “actually
punished” especially since the death
penalty has been abolished
o What was the ground under PD 603 that
was repealed by RA 9344?
 When the child is already 18 upon
promulgation of sentence. This is
impliedly repealed by the provision
stating that under RA9344, the age of
commission of the crime is the
determination of suspension of
sentence, and not the age during
promulgation of the judgment.
 After suspension of sentence, what is the
disposition order?
o After sentence, the court sets disposition
conference within 15 days from promulgation

31. 31
 Minor, parents/guardian, and social
worker are present
o Can issue:
 1. Care, guidance, and supervision
orders
 2. Drug and alcohol rehab
 3. Participation in group counseling and
the like
 4. Commitment to youth rehab center of
DSWD/other centers
 When there is doubt if the person is a minor or
not, what is the appropriate proceeding?
o There is presumption of minority.
o File for summary proceeding in Family Court.
 What if the minor was alleged as a co-
conspirator?
o The presumption of acting without discernment
still applies.
o Evidence of conspiracy does not automatically
mean the minor acted with discernment in the
commission of the crime.
 May the presumption still apply even if the
allegation was reckless imprudence under Art.
365?
o Yes. (Jarco Marketing case)
 What is the definition of discernment?
o When the minor is able to distinguish whether
his act is moral or licit or not..
o The utterances of a minor and overt acts
preceding crime, and nature of weapon is
evidence of discernment.
 S.C. AM 02-1-18:
o If the minor committed a crime and the time the
law took effect, he was already 21, can he
enjoy the benefit of suspension of sentence
 If a minor is charged with a heinous crime
punishable by death or RP-death, is he entitled to
suspension of conviction?
o Yes. Ubi lex non distinguit, nec non distinguire
debemos.
 What are the requisites of accident?
o 1. performing lawful act with due care
o 2. causes injury to another
o 3. without intent or negligence
 What if there is negligence?
o Article 365 applies: quasi-crime of reckless
imprudence
o Accident and negligence are mutually
exclusive.
o What is the difference between accident
and negligence?
 Accident – without fault of the human
being. Cannot be anticipated.
 Negligence – when there is some
degree of fault in the person

32. 32
o NOTE: Under Art. 365, the court will not
consider Art. 13 and 14 in imposing the penalty
because this crime is NOT intentional.
 What are the elements of irresistible force?
o 1. Force is physical and must come from an
outside source
o 2. The accused acts not only without a will but
even against his will, reduced to a mere
instrument
o 3. The duress, force, fear, or intimidation
present is imminent and impending, as to
induce well-grounded fear of death or serious
bodily injury
 Thus, the fear must not be speculative,
fanciful, or imagined
 What are the elements of uncontrollable fear?
o 1. Threat which caused the fear of an evil
greater than or equal to the act accused was
required to commit
o 2. The evil promised was of such gravity and
imminence that an ordinary man would
succumb to it
o Ex. X is a hostage who decapitated his fellow
hostage Y because their captors threatened to
kill X.
 What is an insuperable cause?
o It applies to felonies by omission – where the
failure to do so is due to a lawful or insuperable
cause.
o A common example is failure to comply with
art. 125 of the number of hours when a person
arrested must be delivered to judicial
authorities, when there is a long holiday or the
judicial offices are not open, or there is a
calamity/accident that met them.
Art. 13: mitigating circumstances
 What are the mitigating circumstances?
o 1. Incomplete justifying and exempting
circumstances
o 2. Under 18 or over 70
 Correlate with RA 9344
o 3. Praeter intentionem
o 4. Sufficient provocation or threat by the
offended party preceded the act
o 5. Proximate vindication of grave offense
o 6. Passion or obfuscation
o 7. Voluntary surrender or voluntary confession
prior to prosecution’s presentation of evidence
o 8. Physical defect restricts means of action,
defense, communication
o 9. Illness diminishes will-power without
complete deprivation of consciousness
o 10. Analogous circumstances
 No similar provision for aggravating
circumstances
 If the criminal is 80 years, is there a mitigating
circumstance?

33. 33
o P v. Austria 27 June 2000 – the accused was
charged with rape. He was already 83 years
old. His defense was erectile dysfunction. He
was convicted, but the SC applied the old age
as a mitigating circumstance. So far, this is the
only case where this case was applied.
 Must mitigating circumstances be alleged in the
information?
o No.
 How are mitigating circumstances classified?
o 1. Ordinary – enumerated in Art. 13 and some
SPLs
 If there is one, penalty lowered to
minimum period
 If there are two or more ordinary
mitigating circumstances, the penalty is
lowered by one degree
 Can be offset by generic aggravating
circumstances
 Not considered when the penalty is a
single indivisible penalty (i.e. only RP
now)
o 2. Privileged
 Lowers imposable penalty by one or
more degrees
 Cannot be offset by any aggravating
circumstance
 Even if the penalty is single and
indivisible, it is imposed
o 3. Specific – applies to specific felonies
 Ex. concealment of dishonor in case of
abortion by pregnant woman
Ordinary Privileged Specific
Lower to
minimum period
Lower by one or
more degree
To specific
felonies only
If 2 or more,
lower by one or
more degree
Can be offset by
ACs
Cannot be offset
by ACs
Cannot be
imposed on
indivisible
penalties
Can be imposed
on indivisible
penalties
 In incomplete justifying and exempting
circumstances, what are the requisites that must
always be present?
o 1. For self-defense, unlawful aggression
o 2. For accident, due care and lack of fault
 When is incomplete justifying or exempting
circumstance an ordinary mitigating
circumstance? When is it a privileged mitigating
circumstance?
o Ordinary if there is only one element or there is
no majority of required elements
o Privileged if there is majority, but not all, of
required elements

34. 34
 What is the nature of minority as a mitigating
circumstance?
o It is always a privileged mitigating
circumstance
o It applies to those over 15 but below 18 who
acted with discernment  reduce the penalty
to the next lower penalty, in the proper period
 When can praeter intentionem not be invoked?
o RA 8049 – lack of intent to commit so grave a
wrong as committed CANNOT be invoked by
accused in hazing incidents.
 Can lack of intent to commit so grave a wrong as
that committed be invoked in malversation?
o YES. Ex. The petitioner was a municipal
treasurer, and the audit team discovered he
was short P72000 of funds. After a few
months, he returned the money he “borrowed.”
o Note: the SC also applied a mitigating
circumstance analogous to voluntary surrender
in this case.
 What other rule must be taken into account vis-à-
vis praeter intentionem?
o Art. 4(1) – presumption that person intends all
the natural and logical consequences of his
felony.
o How to resolve: the means employed and the
result must be so disparate that the result is
not the logical and natural consequence of the
means
o Ex. X used a lead pipe to hit victim on the
eyebrow, and the victim died. SC refused to
apply the mitigating circumstance of lack of
intent to commit so grave a wrong as that
committed.
o P v. Pugay: (gasoline burning case) SC also
applied Art. 13(3), because the intent was less
than the material act committed.
 What if two persons conspire to commit a felony,
and one intended to commit the grave wrong as
that committed, while the other did not?
o The conspirator who did not intend to commit
so grave a wrong as that committed cannot
invoke the mitigating circumstance.
o BUT if both of them did not intend to commit so
grave a wrong as that committed, then both
can invoke the mitigating circumstance.
 Can both treachery and Art 13(3) be invoked
together?
o Yes. Treachery refers to the manner or
method used to kill the victim, while praeter
intentionem refers to the state of mind of the
person. They may co-exist.
 Can praeter intentionem be invoked for culpable
felonies?
o No. Obviously “intentionem” requires intent in
the first place, just that the intent did not match
the result.
 What are the elements of sufficient provocation?

35. 35
o 1. Sufficient
 Merely shouting at the accused and
asking the latter to leave is NOT
proportionate to the latter killing the
former.
 Need not constitute unlawful aggression
under Art. 11; the threshold here is
lower.
 Need not be put in words; can be in
action.
 Ex. entering another’s property
and then starting to gather the
latter’s crops.
o 2. Immediately preceding the commission of
the crime
 This actually means “immediate,” not
like grave vindication which just requires
proximity
o 3. Originate from the offended party
 If provocation and passion/obfuscation are based
on the same facts, is the accused entitled to two
separate mitigating circumstances or only one?
o Only one. The accused is only entitled to only
one mitigating circumstance, because both are
based on the same facts.
o Same rule between vindication of grave
offense and sufficient provocation.
 What is “immediate” in “immediate vindication of
grave offense”?
o Proximity. It need not immediately precede the
act, but there must be no lapse of sufficient
time.
o How sufficient is sufficient time?
 If there was only a gap of 30 minutes,
still okay.
 P v. Palabrica: 1 day lapse is not okay.
 P v. Ignas: only said “hours” – still okay.
 What is “grave offense”?
o “Grave offense” in this provision is different
from grave offense under Art. 9. Grave offense
under this provision might not even be a felony
at all. It usually is an assault to honor.
o When is an offense grave?
 1. Determine social standing of parties
 2. Determine place and time and
occasion when offense committed
o Grave offense even includes an insult
 “You are living at the expense of your
wife!” – appreciated as grave offense
o In a case, hitting someone with a bamboo stick
is not a grave offense.
 X’s son eloped with Y’s daughter. At that time, it
was really deemed a dishonor. Y looked for his
daughter for three days. Y sought revenge
against X’s son and killed him. Is this vindication
of grave offense? (P v. Diokno)

36. 36
o The SC said that it was. Even if three days
lapsed, the act of elopement was deemed
continuous, and the effect was still there.
o NOTE: This case may be a product of its time.
Now, this situation is pretty ordinary already.
So this case may be archaic already.
 What is necessary for passion or obfuscation to
be considered?
o It must arise from lawful sentiments of the
accused. The offended party must have done
an act unlawful and sufficient to excite passion
or obfuscation
o It must not come from lawlessness or revenge,
or an illegitimate relationship
 Bello: EXCEPTION. He lived with
common law wife for 10 years. Bello
supported her for 10 years. After, the
common law wife wanted out, and
wanted to live with another man. Bello
killed her. “Eh wala ka namang ibubuga
talaga eh.” SC HELD: Passion and
obfuscation. Although the relationship
was illegitimate, nevertheless, the victim
was ungrateful.
 How much lapse of time is allowed for passion
and obfuscation to be appreciated?
o P v. Ventura: Although passion and
obfuscation may arise from jealousy, since
there was a lapse of 1 week, accused was
expected to recover his equanimity.
 Can vindication of grave offense co-exist with
passion or obfuscation?
o No. If they arise from the same facts, only one
will be appreciated.
 Can treachery co-exist with passion or
obfuscation?
o No. Treachery CANNOT co-exist with passion
and obfuscation. When a person acts with
passion or obfuscation, he loses his reason
and self-control, which is inconsistent with
treachery, because one who acts with
treachery presupposes that he adopted a
mode of attack of killing the victim.
o Contra: treachery can co-exist with praeter
intentionem
 What are the elements of voluntary surrender?
o 1. Offender surrendered to a person in
authority or his agent
o 2. Offender surrendered before arrest is
effected
o 3. Surrender is voluntary, i.e., spontaneous
and coming from intent to acknowledge guilt
and save time/resources of authorities
o 4. No pending warrant of arrest or information
filed
 What is the most important element of voluntary
surrender?

37. 37
o The spontaneity of such and intent to give up
and unconditionally surrender to authorities.
 How has this provision been applied by analogy
by the SC?
o Navalos v. P: Before being charged of
malersation, the accused returned the amount,
he was deemed to have “voluntarily
surrendered” – analogous. The return of the
money must be spontaneous.
 What are the requisites of voluntary plea of guilt?
o 1. Made in open court
o 2. Spontaneous and unconditional
o 3. Prior to presentation of evidence by the
prosecution
 Does this include extra-judicial confessions?
o No.
 May voluntary plea of guilt and voluntary
surrender both be considered in one case?
o Yes. They are two separate and distinct
circumstances not arising from the same facts.
The offended party is entitled to two mitigating
circumstances.
 What is the character of the plea of guilty?
o It must be unconditional and the accused must
admit to the offense charged.
 What is relevant for the mitigating circumstance
of physical defects and illness?
o The defect or illness must relate to the offense
charged, because the defect must have
restricted his means of action, defense, or
communication with his fellow human beings.
o Ex. rape committed by a deaf and dumb man
on the girl of his dreams to whom he cannot
convey his feelings to
o But not when it was committed by a man with
a severed left hand, because it does not limit
his means of action, defense, or
communication
 What is necessary for illness that diminishes
willpower of the accused?
o It must only diminish and not deprive the
offender of the consciousness of his acts;
otherwise, it is an exempting circumstance
 What are NOT examples of analogous mitigating
circumstances?
o 1. Being part of a minority group
o 2. Extreme poverty
o 3. Abberatio ictus
o 4. Mistake in identitiy
 What are some examples of analogous mitigating
circumstances?
o 1. Mitigated mental capacity of a battered
woman (decided pre-RA 9262)
o 2. Voluntary return of stolen goods
Art. 14: aggravating circumstances
 What are the aggravating circumstances?
o 1. Advantage of public position

38. 38
o 2. In contempt of or with insult to public
authorities
o 3. With insult or disregard of rank, age, or sex,
or in the dwelling of the offended party, if the
latter did not provoke
o 4. Abuse of confidence or obvious
ungratefulness
o 5. Committed in the palace of the Chief
Executive, or in his presence, or where public
authorities are discharging their duties, or in a
place of religious worship
o 6. Nighttime, or in an uninhabited place, or by a
band
o 7. Committed during a conflagration,
shipwreck, earthquake, epidemic, or calamity
o 8. With aid of armed men or persons who
insure/afford impunity
o 9. Recidivism
o 10. Reiteracion
o 11. Price, reward, or promise
o 12. By means of inundation, fire, poison,
explosion, stranding of a vessel, derailment of
locomotive, use of any artifice involving waste
and ruin
o 13. Evident premeditation
o 14. Craft, fraud, or disguise
o 15. Superior strength or means employed to
weaken the defense
o 16. Treachery
o 17. Ignominy
o 18. Committed after unlawful entry
o 19. Committed after breaking through a wall,
roof, floor, door, or window
o 20. With aid of persons under 15 years old, or
motor vehicles
o 21. Cruelty
 Compare with mitigating circumstances:
o This list is exclusive, whereas in mitigating
circumstances, there are analogous
circumstances allowed
o Aggravating circumstances must be alleged in
the information, mitigating circumstances need
not (since they’re matters of defense)
 What are the types of aggravating circumstances?
o 1. Generic aggravating
 Apply generally to all crimes
 Can be offset by ordinary mitigating
circumstances
 Increases penalty to maximum period
 Are additional rapes or killing in the
case of robbery with rape or robbery
with homicide, for instances,
aggravating?
 No, it’s not enumerated under law
as such. It’s an anomalous
situation, but doubt is resolved in
favor of the accused.

39. 39
 P v. Hipol: The malversed amount was
so huge, that the Sol. Gen said that the
crime was already economic sabotage
and must be considered an aggravating
circumstance. SC: There is no such
aggravating circumstance as economic
sabotage. No matter how huge the
amount is, it is not aggravating
o 2. Qualifying circumstances
 Cannot be offset by any mitigating
circumstance
 Changes nature of crime
 Must be alleged in the Information as
such new offense
 No need to increase the penalty
because the change in the crime itself
has changed the penalty as well to a
higher one
 Can qualifying circumstances not
alleged in the information but proved
in trial be appreciated as generic
aggravating circumstances?
 No, due to the amendment in
Criminal Procedure
 X was charged with homicide with
the generic aggravating
circumstance of treachery. Can the
trial court find him liable for murder?
 No, treachery was alleged as a
general aggravating and not a
qualifying circumstance.
 How many circumstances are needed
to qualify an offense?
 Just one. The rest become
generic aggravating
circumstances.
o 3. Special or specific aggravating
circumstances
 Apply to specific felonies; found outside
Art. 14
o 4. Inherent circumstances
 Those already integral to the crime and
thus cannot aggravate the penalty
 Ex. In the crime of falsification of
document by public authority, then
“abuse of public position” is deemed
inherent. Same with malversation and
other crimes by public officers.
 What is the special aggravating circumstance
introduced by RA 7659?
o Committed by an organized/syndicated group –
impose maximum penalty if the offense was
committed by any person belonging to an
organized or syndicated crime group (2 or
more persons collaborating or mutually helping
one another for purposes of gain in the
commission of the crime)

40. 40
 What are the special aggravating circumstances
introduced by RA 8353, Article 266-B?
o See crimes against persons: ex. victim is under
18 and rapist is relative, gave victim AIDS,
committed by AFP/PNP, etc.
Art. 14(1) – advantage of public position
 When is this present?
o When the public official uses the influence,
prestige, and ascendancy of his office to
realize the purpose.
o Tests under case law:
 1. Offense is in relation to his office
 2. He cannot commit the offense without
holding such public office
o Ex. jail guard who was able to use his position
to kill an inmate
 When does advantage of public position not
apply?
o Does not apply if the public position is a
constituent element of the crime;
o Examples:
 Crimes committed by public officers
 Inherent in the crime of falsification by a
public officer of a public document
 If the public officer could have committed the crime
anyway without the use of public position, it is not
aggravating.
o P v. Tabeon: If the accused given a gun by the
government by virtue of his position uses that
gun to commit homicide, the use of that gun is
an aggravating circumstance. He could not
have used that gun unless he was a public
officer.
o But see P v. Villamor: Where Villamor used a
gun officially issued to him by virtue of office –
use of that gun was not an abuse of public
position. This is contrary to Tabeon.
o N.B. The later decision is Villamor, but Justice
Callejo agrees with Tabeon. Follow Villamor,
though,
 Two policemen were in the police car. They
stopped and ordered a girl to enter the car. One
policeman stole the watch and wallet of the girl.
The policeman driving did not say anything. Both
were held liable for robbery. Did the aggravating
circumstance of taking advantage of public
position apply even to the driver of the car?
o Yes. He could have prevented the other
policeman from robbing the siblings. But he
did not. This was abuse of public position.
 Is this a generic or special aggravating
circumstance?
o The use of one’s public position in the
commission of a crime is a special aggravating
circumstance. (RA 7659, Sec. 23)

41. 41
o Thus, it cannot be offset by generic mitigating
circumstances.
Art 14(2) – with contempt of or in insult of public authority
 What are the requisites of contempt/insult of
public authority?
o 1. crime committed
o 2. person in authority engaged in exercise of
public position
o 3. offender knew he was a person in authority
o 4. victim is NOT a person in authority
 A barangay captain was playing cards with some
people. The accused shot him. Does this
provision apply?
o No. First, the person in authority must NOT be
the victim per se, and second, he was not
performing his duty at that time. He was
playing cards.
o What if the crime was committed against
the person in authority?
 Then it is direct assault. This
aggravating circumstance does not
apply.
 What if the crime was only committed in the
presence of an agent of a person in authority?
o This provision does not apply.
o Ex. If in the presence of a policeman, not
aggravating because the policeman is only an
agent of a person in authority.
 Supposing a crime is committed in the presence
of a professor while the latter was performing his
duty?
o This is not aggravated. A teacher or professor
is only a person in authority under Art. 148 and
152 of the RPC (direct assault).
 Is there an exception?
o RA 9165 – a teacher or professor is a person
in authority for the purpose of enforcement of
the DDA.
o If you smoke marijuana in the presence of a
professor, the professor is a person in
authority.
 In the national penitentiary, sometimes the
inmates feel bored and they kill each other. Is this
aggravating?
o Yes. Where the inmates killed another in the
National Penitentiary, this was in contempt of
public authority.
Art. 14(3a) – insult to age, rank, sex
 What is required for this aggravating
circumstance to apply?
o There must be deliberate intent to insult or
show manifest disregard for the age, rank, sex.
Not merely because the victim is a female or
has a rank, this A.C. applies.
 Can this coincide with passion and obfuscation?

42. 42
o No, because the offender must have
deliberately intended to offend or insult the
offended.
 The accused was conversing with the barangay
captain and the former killed the latter. May the
A.C. of “rank” apply?
o No. The mere fact that victim was a person
with a rank, such as barangay captain does not
necessarily mean it’s aggravating, absent
evidence that the killing was deliberately
intended to disregard or insult or threaten to
insult the rank of the victim.
 What are further considerations for circumstance
of rank?
o The charge must not include rank as an
element. If the accused was charged with
complex crime of direct assault of PIA with
murder – then the AC cannot be appreciated
because it is inherent.
o If the charge was just murder, then the AC
applies.
 When is the A.C. of “sex” not applicable?
o 1. If the accused acted with passion or
obfuscation,
o 2. when there is an amorous relationship
between the accused and the victim,
o 3. When there is a relationship of employer-
employee,
o 4. When the sex of the victim is inherent in the
crime,
 A 20-year-old man raped an 80-year-old woman.
The victim was the teacher of the accused in
grade 1. Key fact: victim was already retired!
Does insult to rank apply?
o Yes. The Fact that the offended party was
already retired did not diminish the respect due
her rank as his former teacher.
 Do these this apply to crimes against property?
o No. Not aggravating in crimes against
property.
o Examples of where insult to rank, age, sex
does not apply:
 Robbery
 Robbery with homicide – since here, the
homicide was merely an incident to
robbery
 [NOTE: the Escote doctrine applies to
treachery, not here.]
 Is insult to rank, age, sex absorbed by treachery?
o No. The aggravating circumstances of age and
sex cannot be absorbed by treachery.
Treachery pertains to manner of commission.
Insult to age, rank, sex refers to relationship.
o Ex. The accused murdered a child 3 days old.
The SC appreciated the A.C. of age in
convicting the accused of murder. Also

43. 43
treacherous since the child cannot defend
himself.
o But see P v. Malolot: Accused hacked to death
an 11 month old child. SC HELD: A.C. of age
of victim DOES NOT apply, because it was
absorbed by treachery. (Justice Callejo does
not agree with this case. But Malolot might be
prevailing, being the newer case).
Art 14(3b) – dwelling
 Does dwelling apply when both parties live in the
same house?
o Generally, it is not aggravating.
o Victim was stay-in laundrywoman, but it
was not her house. The killer was the
houseboy, who also lived that house. The
laundrywoman had her personal room, and
the houseboy had his as well. Is dwelling
aggravating?
 Yes. Although the offender and offended
lived in the same house, the crime is
aggravated by dwelling, because the
room was deemed a dwelling,
notwithstanding being in the same
house.
 Each room although located in the same
house is considered a dwelling separate
and independent of the adjacent rooms.
 What is considered as dwelling?
o Includes every dependency of the house and
every integral part of the house. Includes
staircase, enclosure under the house, and the
terrace.
 If the person is stepping on the first rung
of stairs, then it is dwelling. But if he
has yet to step, not yet.
o To be considered as dwelling, it must be used
exclusively for rest and comfort.
 Ex. the victim owns a building consisting
of two floors: ground floor is video shop
and 2nd
floor is residence. The victim
was killed in the video shop. Here,
dwelling does not apply. The video
shop is not exclusively for rest and
comfort, even if in the same building.
 What if the person is a squatter?
o Dwelling still applies. The law does not make
any distinction as to the validity of title over the
property.
 What if the land is enclosed with a fence and the
person is outside the house but inside the fence?
o Dwelling does not apply.
 When does dwelling not apply?
o If the victim gave sufficient provocation.
o What are the elements of sufficient
provocation?
 1. Offended party gives provocation
 2. The provocation is sufficient

44. 44
 3. The provocation is immediately
before the crime
 Does the offender have to actually enter the
house?
o No. The law does not require that the offender
must also be in the house. The offender can
shoot from outside the house and kill a person
inside – it is still considered as dwelling,
 Does dwelling apply in robbery?
o Distinguish:
o Dwelling is aggravating in robbery with
homicide or robbery with intimidation of
persons.
o However, in robbery with force upon things,
dwelling is inherent in the crime.
 Is dwelling aggravating in arson?
o No. (PD 1613)
 A person dies inside a building burned on
purpose. When is it homicide, and when is it
arson?
o Intent determines:
o 1. If the intent is to burn the house, then the
burning is arson even if a person dies.
Homicide is absorbed.
o 2. If the intent is to kill the person and the
burning was the means employed to commit
the crime, it is homicide.
o 3. If the intent is to kill the person, and the
house is burned to cover up the crime, then it
is homicide and arson as separate crimes.
There is no special complex crime of homicide
with arson.
Art 14(4) – abuse of confidence or obvious
ungratefulness
 What are the elements of abuse of confidence?
o 1. Offended party reposed trust and confidence
to offender
o 2. Offender abused this trust and confidence
 What must be the character of the confidence
reposed?
o The confidence must be IMMEDIATE AND
PERSONAL such that it gives the accused
some advantage and makes it easier to commit
the crime.
o Ex. The mother of the victim had a common
law husband, whom the victim called “papa.”
“Papa” raped the daughter. This was abuse of
confidence, even if the relationship between
the mom and “papa” was illicit.
Art. 14(5) –committed in a place of worship
 What are contemplated here?
o 1. Committed in palace of Chief Executive
o 2. Committed in the presence of Chief
Executive
o 3. Committed in place where public officers are
discharging duties
o 4. Committed in place of worship

45. 45
o Distinguish 1, 2, and 4 from 3:
 For palace, presence of CE, and place
of worship it is enough that the offense
was committed in that place
 For public officers in discharge of their
duties, it is necessary that the
performance of function is being done
 How will this aggravating circumstance of place
of worship (and the like) apply?
o There must be intent from the outset to commit
the crime inside the place of worship. Here,
the accused did not intend to commit the crime
inside the church (she did not expect the man
to touch her thigh).
Art. 14(6) – night time, uninhabited place, or by a band
 If all three are present, are these separate
aggravating circumstances or only one?
o General rule: only one applies.
o Exception: These may be considered
separate and distinct if their elements are
distinctly perceived and can subsist
independently of each other, revealing greater
perversity.
 What are the tests of night time?
o Subjective test – when night time was sought
purposely to commit the crime.
o Objective test – when nighttime facilitated the
commission of the crime
o N.B. The subjective and objective tests are
alternative. They need not concur. Either
test’s application is sufficient.
o It is not enough that the crime was committed
in night time. There must be evidence that
night time was sought for, or the nocturnity
facilitated the commission of the offense
 What if the moon is shining brightly or there is a
streetlamp illuminating the event?
o Then nighttime is not appreciable.
 When is nighttime absorbed by treachery?
o If it is part of the treacherous means to insure
execution of the crime. Otherwise, it is
separately appreciated.
 What determines if the crime was committed in an
uninhabited place (despoblado)?
o It is not the distance, but the possibility or
impossibility of immediate aid to be obtained.
The more important consideration is if the
commission of the crime makes it possible for
the victim to receive aid.
o Ex. The distance is not so great, but one has to
climb up a hill to reach the house to render aid.
There is despoblado.
 What is the burden of the prosecution?
o Prosecution must prove that the accused
chose the remoteness of the place to aid the
commission of the crime, or to conceal the
commission of the crime.

46. 46
 When is there a band?
o More than three armed malefactors (at least
four).
o Must all of them be armed?
 Yes.
 What is the test for armament?
o Any weapon which, by reason of its intrinsic
nature or purpose, is capable of inflicting
serious or fatal injuries.
 What is the character of participation of the four
malefactors?
o The four armed persons contemplated in the
law must be principals by direct participation
for band to be considered. They must act
together in the execution of the crime.
 There were four accused, and it was alleged that
they composed a band, in the information. Two
were acquitted. Is there crime by a band?
o Band is still subsistent even if two were
acquitted.
o DISSENT: No band.
 What is the characteristic of crime by a band?
o Merely generic. (Ex. robbery with rape,
robbery with homicide, physical injuries, etc.)
This means that this can be offset by a generic
MC.
o Contrast: Art. 266-B if rape is committed by 2
or more persons, the offender is sentenced
from RP to death (special aggravating
circumstance).
 When is crime by a band a qualifying
circumstance, and not just a generic aggravating
circumstance?
o Only Article 294, pars. 3 to 5. This is robbery
with violation against persons.
o Recall:
 Par 1: with homicide  band is
aggravating
 Par 2: with rape, intentional mutilation,
and lesiones graves resulting into
blindness, impotency, imbecility, or
insanity  aggravating
 Par 3 to 5: other kinds of robbery with
violence against persons  band is
qualifying
Art. 14(7) – calamity or misfortune
 To what situations does this apply to?
o Conflagration, shipwreck, earthquake,
epidemic
o And other calamities and misfortunes
 These must be similar to the
abovementioned, so it cannot refer to
“acts of men”
 Distinguish from Art. 14(12):

47. 47
o That refers to means of committing the crime.
This provision refers to crime committed on the
occasion of calamity or misfortune.
Art. 14(8) – with aid of armed men
 Requisites for aid of armed men?
o 1. Armed men or persons took part in the
commission of the crime directly or indirectly
o 2. Accused availed himself of aid of such men
or relied upon them when the crime was
committed
 The armed men are accomplices who take part in a
minor capacity, directly or indirectly.
 What if there is a conspiracy with the armed men?
o There should not be any conspiracy or the
armed men must not be principals.
Band Armed men Organized
crime syndicate
All are principals Accomplices
At least 4 armed
men
Number
immaterial
At least two
persons
Crimes not
specified
Crimes not
specified
Crimes are for
gain
Art 14(9, 10) – recidivism, reiteracion
 What are the different forms of habituality?
o 1. Recidivism
o 2. Reiteracion
o 3. Habitual delinquency
o 4. Quasi-recidivism
 Who is a recidivist?
o Elements:
 1. During trial for one crime
 2. Has been previously convicted
 3. By final judgment
 4. Of another crime under the same title
in the RPC
o Important things to note:
 At least two convictions – one preceding
the other, and the preceding one must
have final judgment already
 Both offenses must fall under the same
title in the RPC
 No specific period between convictions
required
o What if the first offense is pardoned?
 Still a recidivist because only the effects
of the crime were extinguished by
pardon, not the existence of the crime
 What is the nature of recidivism?
o Generic aggravating circumstance
 What is reiteracion?
o Elements:
 1. The offender has previously been
punished (has served sentence)
 2. First offense must have had a greater
or equal penalty;

48. 48
 3. Or two or more prior offenses with
lighter penalty
o Do they have to fall under the same title of
the code?
 No.
Recidivism Reiteracion
Previous conviction by final
judgment
Previous service of
sentence
Under same title of the
RPC
No need to be under same
title
No requirement as to
penalty in prior conviction
One crime or greater
penalty or at least two
crimes of lesser penalty
 What is habitual delinquency?
o Elements:
 1. Within a period of 10 years from date
of release or last conviction
 2. For falsification, robbery, estafa, theft,
serious or less serious physical injuries
(FRETSeL)
 3. Found guilty of said crimes a third
time or oftener
o What is the nature of habitual delinquency?
 It is special aggravating circumstance,
which imposes an additional penalty
(not just increase) which escalates with
the number of convictions. Thus there
will be two penalties: for the crime and
for the habitual delinquency.
 As such, this cannot be offset by
mitigating circumstances
o Important things:
 At least 2 convictions
 The third conviction must be within 10
years from the second conviction. The
10 year period is counted from the date
of release if he had been released when
against convicted.
o Can one be a recidivist and a habitual
offender at the same time?
 Yes, if he is convicted a third time for
crimes of estafa, robbery, or theft which
are within Title X of the RPC, or for
serious and less serious physical
injuries which are both within Title VIII of
the RPC.
 What is quasi-recividism?
o Elements:
 1. Offender previously convicted by final
judgment
 2. Before beginning to serve such
sentence, or while serving it, he
commits a felony
o What is the nature of quasi-recividism?
 It is a special aggravating circumstance
which must be alleged in the information

49. 49
 Cannot be offset by ordinary mitigating
circumstances
o Effect:
 Penalize convict with maximum period
for the new felony committed
o What if during service of first conviction, he
reaches 70 years old or he completes
service of the first conviction after 70?
 He is pardoned, unless he is a habitual
criminal or his conduct/circumstances
show he is unworthy of pardon
Art 14(11) – price, reward, or promise
 What must be given as price, reward, or promise?
o Need not be money.
 When does this aggravating circumstance apply?
o But the inducement MUST be the primary
consideration by the principal by direct
participation.
 If the offer is accepted, does the AC apply to both
offeror and offeree?
o YES. Both of them.
Art 14(12) – explosives, poison, fire, etc.
 Take note of COMADRE and MALNGAN (very
important cases)
 Under RA 8294, when does the use of unlawfully
manufactured, acquired, or possessed explosives
aggravate?
o If used to commit ANY of the crimes in the
RPC and it results to injury or death of any
person, it is an aggravating circumstance
o Except in furtherance of political crimes, which
absorbs the use of explosives
o N.B. contrast this with illegally possessed
firearms, which only aggravates murder or
homicide
 When do these circumstances cease becoming
generic aggravating circumstances?
o 1. When it is a crime in itself
o 2. When it is a means included in defining a
crime
Art 14(13) – evident premeditation
 What are the elements of evident premeditation?
o 1. Proof of time when the accused came up
with the determination to commit the crime
o 2. Overt act by accused showing he
determined to commit the crime and that he
clung to that determination.
o 3. Lapse of time between the determination
and decision to carry it out.
 What is the essence of this aggravating
circumstance?
o Precedence of cool thought and reflection
 How much time must elapse?