midterm reviewer

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada 2010 1 Art. 12 Excempting Circumstances In exempting circumstances the act does not result in criminal liability because the act is not voluntary or negligent. (Different from justifying because here a crime is actually committed. Imputable to a person but not criminally liable) There is absence of: Intelligence, freedom of action, intent or negligence. Insanity or imbecility Minority(15 years of age or under) RA 9344 Minority above 15 below 18 if acting w/o discernment) Performance of a lawful act with due care (accident) Compulsion of an irresistible force Uncontrollable fear of an equal or greater injury Failure to perform an act due to some lawful or insuperable cause 1. An Imbecile or an insane person Imbecile – mental deficiency (mental age of a child), deprived completely of reason or discernment and freedom of the will at the time of committing the crime Insane – unsound mind or suffers from a mental disorder, complete deprivation of intelligence in the commission of the act or that the accused acted without the least discernment (Ambal) An insane person may have lucid intervals but an imbecile does not. Acting like a crazy person because you‟re angry is not insanity Crazy vs Insane There is a vast difference between an insane person and one who has worked himself up into such a frenzy of anger that he fails to use reason or good judgment in what he does. The fact that a person acts crazy is not conclusive that he is insane. The popular meaning of the word „crazy‟ is not synonymous with the legal terms „insane‟, „non compos mentis‟ unsound mind‟, „idiot‟ or „lunatic‟. (Ambal) Presumption is in favour of sanity The law presumes that every person is of sound mind, in the absence of proof to the contrary” xxx “The law always presumes all acts to be voluntary. It is improper to presume that acts were executed unconsciously. (Ambal). …that when a defendant in a criminal case interposes the defense of mental incapacity, the burden of establishing that fact rests upon him, has been adopted in a series of decisions by this court.” (PP vs Bascos) Circumstancial evidence: Bascos case 1922 Witnesses say that the accused has been insane for many years The doctor who examined the accused testified that the accused was a violent maniac and that he may have been insane when he killed the victim, and Lack of motive on the part of the accused to kill the victim Quantum of evidence Bonoan 1937 Insanity as a defense is a confession and avoidance and as such must be proved beyond reasonable doubt.

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Reviewer on Art 12,13,14 of the Revised Penal Code

TRANSCRIPT

Page 1: Midterm Reviewer

Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation

Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada

2010

1

Art. 12 Excempting Circumstances

In exempting circumstances the act does

not result in criminal liability because the act is not voluntary or negligent. (Different from

justifying because here a crime is actually committed. Imputable to a person but not

criminally liable)

There is absence of:

Intelligence, freedom of action, intent or negligence.

Insanity or imbecility

Minority(15 years of age or under) RA 9344

Minority above 15 below 18 if acting w/o discernment)

Performance of a lawful act with due care (accident)

Compulsion of an irresistible force

Uncontrollable fear of an equal or greater injury

Failure to perform an act due to some lawful or insuperable cause

1. An Imbecile or an insane person

Imbecile – mental deficiency

(mental age of a child), deprived completely of reason or discernment

and freedom of the will at the time

of committing the crime Insane – unsound mind or suffers

from a mental disorder, complete deprivation of intelligence in the

commission of the act or that the accused acted without the least

discernment (Ambal)

An insane person may have

lucid intervals but an imbecile

does not.

Acting like a crazy person

because you‟re angry is not

insanity

Crazy vs Insane There is a vast difference between an insane person and one who has

worked himself up into such a

frenzy of anger that he fails to use reason or good judgment in what he

does.

The fact that a person acts crazy is

not conclusive that he is insane. The popular meaning of the word „crazy‟

is not synonymous with the legal

terms „insane‟, „non compos mentis‟ unsound mind‟, „idiot‟ or „lunatic‟.

(Ambal)

Presumption is in favour of sanity The law presumes that every person

is of sound mind, in the absence of

proof to the contrary” xxx “The law always presumes all acts to be

voluntary. It is improper to presume that acts were executed

unconsciously. (Ambal).

…that when a defendant in a

criminal case interposes the defense of mental incapacity, the burden of

establishing that fact rests upon him, has been adopted in a series of

decisions by this court.” (PP vs

Bascos)

Circumstancial evidence: Bascos case 1922

Witnesses say that the accused

has been insane for many years

The doctor who examined the

accused testified that the

accused was a violent maniac

and that he may have been

insane when he killed the

victim, and

Lack of motive on the part of

the accused to kill the victim

Quantum of evidence Bonoan 1937

Insanity as a defense is a confession and avoidance and as such must be

proved beyond reasonable doubt.

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Criminal 1: Notes from Fiscal Carillo’s Powerpoint Presentation

Compiled by Patrick Gallito Edited & Layout by Jan Shaltiel Vincent Estrada

2010

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When the commission of a crime is established and the defense of

insanity is not made out beyond

reasonable doubt conviction follows.

Accused confined at San Larazo

Hospital twice (1922, 1926) –

tendency of recurring

Dementia praecox is an

exempting circumstance

(authorities)

Insomnia for 4 days before the

crime, symptom of or leads to

dementia praecox;

A day after his arrest he was

sent to the Psychopathic

hospital

Alienist reported that the

accused had a form of psychosis

– Manic depressive psychosis

Commission vs Trial Insanity at the time of the commission of the offense is

different from insanity at the time of the trial. In the first instance, it is an

exempting circumstance, in the second the accused is not exempt

but the proceedings are suspended

until the accused is fit to stand trial.

Burden of evidence The alleged insanity of Ambal was

not substantiated by any sufficient

evidence. The presumption of sanity was not overthrown. He was not

completely bereft of reason or discernment and freedom of will

when he mortally wounded his wife. He was not suffering from any

disease or defect. (Ambal)

PP vs Legaspi 2001

“Mere prior confinement does not prove that accused-appellant was

deprived of reason at the time of

the incident” – not establishing insanity(only proves you went to

mental hospital), he was discharged (proof of cure).

No evidence that he was adjudged insane. Discharge is proof of being

cured.

Mental depravity which results not

from any disease of the mind, but from a perverted condition of the

moral system, where the person is mentally sane, does not exempt one

from responsibility for crimes committed under its influence.

PP vs Madarang 2000 The courts have established a more

stringent criterion for insanity to be exempting as it is required that

there must be a complete

deprivation of intelligence in committing the act. i.e. the accused

is deprived of reason he acted without the least discernment

because there is a complete absence of the power to discern.

Establishing insanity is a question of fact and may be established by:

A witness who is intimately

acquainted with the accused.

(relative, a very good friend)

A witness who has rational basis

to conclude that the accused

was insane based on the

witness‟ own perception of the

accused. (you can be a witness

if you can perceive and relate

what you have perceived)

Expert testimony (Madarang)

Pp vs Madarang

The testimony or proof of the accused‟s insanity must relate to the

time preceding or coetaneous with the commission of the offense with

which he is charged.

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2010

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…proof of abnormal behavior

immediately before or simultaneous

to the commission of the crime. Evidence on the alleged insanity

must refer to the time preceding the act under prosecution or to the very

moment of its execution.

PP vs Opuran 2004

A man‟s act is presumed voluntary. It is improper to assume the

contrary. *Such unusual behavior may be

considered as mere abnormality of

the mental faculties, which will not exclude imputability.

*Medicine was not shown to be for any mental illness.

*Was never confined in a mental

institution. * Dr. Verona‟s findings were not

based on incomplete and sufficient facts;

*Failed to invoke insanity at the earliest opportunity.

Stringent standard

2. Minority

RA 9344 Juvenile and Justice Welfare Act (May 20, 2006)

New concepts:

Age of criminal responsibility – From 9 to 15 to 15 to 18. 15 below

no criminal responsibility.

Effects – No more prisoned. Minor offenders committing crimes in

broad daylight they have in their pockets birth certificates to show

they are minors. The law is being

abused. Presumptions – in favour of

minority. Once accused says he is a minor it is up to the state to prove

otherwise. Age of criminal responsibility

A child fifteen years of age and under at the time of the commission

of the offense is exempt from

criminal liability.

Child is subject to intervention. Intervention refers to a series of

activities which are designed to

address issues that caused the child to commit an offense.

Section 3(1) Ra 9344

Intervention refers to a series of activities which are designed to

address issues that caused the child

to commit an offense. It may take the form of an individualized

treatment program which may include counselling, skills training,

education, and other activities that

will enhance his/her psychological, emotional and psychological

Above 15 but below 18

Without discernment - child is

exempt but subject to

intervention

With discernment – subject to

appropriate proceedings, i. e.

diversion

No exemption from civil liability – parents, guardians can be liable for

damages

Discernment is the mental capacity

to understand the difference between right and wrong.

It may be shown by:

Manner of committing a crime

Conduct of offender

Appearance of the minor

Attitude

Comportment

Behavior, before, during and

after the trial.

Determination of age

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Birth certificate

Baptismal certificate

Other pertinent document

In the absence of the documents mentioned:

- Testimony of the child or other

persons

- Physical appearance

- Other relevant evidence

Presumption of minority (Sec. 7)

Imposable Penalty Not more than 6 years (barangay

level, police level)

Mediation, family conferencing

and conciliation if appropriate

(where there is a private

offended party)

In victimless crimes, diversion

or rehabilitation

More than 6 years

Diversion by the court Kinds of Diversion, Sec. 31, Barangay Level

Restitution – return what was

taken

Reparation – pay the value of

what was taken

Indemnification – in cases like

assault or physical injury,

hospital fees, medicine, loss of

income when hospitalized

Written or oral apology

Care guidance and supervision

orders

Counselling

Trainings, seminars and lectures

- Anger management

- Problem solving

- Values formation

- Other skills to aid the child

Participation in community

based programs

Participation in education,

vocation and life skills

program

Kinds of Diversion, Law Enforcement Level - Confiscation and forfeiture of

the proceeds

- All the programs at the

barangay level

Kinds of Diversion, Court Court

All programs at barangay and

law enforcement

Written or oral reprimand

Fine

Payment of the cost of

proceedings

Institutional care and custody

Sec. 58. Offenses not applicable to

children Vagrancy and Prostitution

Mendicancy

Sniffing of Rugby

Shall undergo appropriate counselling and treatment

4. Accident

Elements:

Performance of a lawful act

With Due care

Injury is caused to another by

mere accident

There is no fault or intention of

causing the injury

An accident is something that happens outside the sway of our will, and although it

comes about through some act of our will,

lies beyond the bounds of humanly

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foreseeable consequences (PP vs Agliday 2001)

PP vs Genita 2004 He must show with clear and convincing

proofs that 1) he was performing a lawful act with due care, 2) the injury caused was

by a mere accident, and 3) he had no fault

or intention of causing the injury.

Basis as an exempting circumstance Criminal liability does not arise in case a

crime is committed by any person who while performing a lawful act with due care

causes an injury by mere accident

Performance of a lawful act

For an accident to become an exempting circumstance, the act has to be lawful. The

act of firing a shotgun at another is not a

lawful act. (Agliday)

Intent is a mental state It connotes the absence of criminal intent,

intent is a mental state, the existence of which is shown by a person‟s overt acts

Accused got his shotgun and shot his son. A shotgun has to be cocked first before it

could be discharged. (Agliday)

Dual Standard Thus, in determining whether an accident

attended the incident, courts must take into

account the dual standards of lack on intent to kill and absence of fault or negligence

(Pomoy vs PP)

Accident inconsistent with self-defense Self-defense is inconsistent with the

exempting circumstance of accident, in

which there is no intent to kill. On the other hand, self-defense necessarily contemplates

a premeditate intent to kill in order to defend oneself from harm.

5. Compulsion of an irresistible force Elements:

Compulsion is by physical force

The physical force is irresistible

The physical force must come

from a third person

Exempted from criminal liability “Because he does not act with freedom”

“reduce him to be a mere instrument who acts not only without will but against his

will” “must be present, imminent and impending

and of such a nature as to induce a well-

grounded apprehension of death or serious bodily harm if the act is not done”

“a threat of future injury is not enough” “The compulsion must be of such a

character as to leave no opportunity to the

accused for escape or self-defense in equal combat” (PP vs Loreno 1984)

6. Impulse of an uncontrollable fear of

an equal or greater injury Elements:

The threat which causes the

fear is of an evil greater than or

at least equal to that which is

required to commit.

That the evil is of such gravity

and imminence that the

ordinary man would succumb to

it.

Opportunity to escape At that time the alleged masterminds were

waiting for both appellants from a distance

of about one kilometre. By not availing of this chance to escape, appellants, allegation

of fear or duress becomes untenable. Xxx. It is necessary that the compulsion be of such

a character as to leave no opportunity to

escape or self-defense in equal combat. PP vs Saldana 2004.

Irresistible Force vs Uncontrollable Fear

IF – violence or physical force

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2010

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UF – intimidation or threat

7. Prevented by Insuperable Cause

Elements:

An act is required by law

A person fails to perform such

act

Such failure is due to some

lawful or insuperable cause.

Art. 13 Mitigating Circumstances

- Circumstances that reduce the

penalty but do not entirely free

the actor from criminal liability.

- Mitigating circumstance whether

privileged or ordinary only serve

to reduce the penalty but does

not change the nature of the

crime.

Kinds:

1.) Ordinary – Art. 13

May be offset by aggravating

circumstances, effect is penalty is lowered by one or two

degrees

2.) Privileged –Art. 68, 69, 64

Cannot be offset by aggravating circumstance, effect is penalty is

applicable in its minimum period

1. All requisites necessary to

justify or to exempt from

criminal liability are not

attendant

Not all the requisites are required The requisites attendant must not

be a majority or it will be a

privileged mitigating

Self-defence, relatives or strangers -Unlawful aggression being an indispensable

requisite is the only one that is possible

under this article

The presence of another makes the circumstance a privileged mitigating.

PP vs Librando – to avail of the mitigating circumstance of incomplete self-defense,

there must be unlawful aggression on the part of the victim.

State of necessity/Avoidance of greater evil or injury

That an evil actually exists must be present The presence of any of the two others

(injury feared is greater, no other practical and less harmful means) would result in a

privileged mitigating circumstance.

Performance of duty (not an ordinary

mitigating; privileged) Since there are only two requisites, the

presence of one is considered a privileged

mitigating circumstance (Oanis)

2. Minority and over 70 years of

age

RA 9344

Age: If 15 and below – no criminal liability (intervention)

If above 15 below 18

If acted w/o discernment

(presumption) no criminal

liability (intervention)

If acted with discernment

(diversion)

Diversion

Barangay level

(look at back of syllabus)

Nature of offense

If offense is punishable by imprisonment by not more than 6 years

Conduct mediation, family

conferencing and conciliation if

possible, i.e. where there is a

private offended party, by

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Barangay or Law Enforcement

assisted by LCPC. Parents of the

child shall attend.

In victimless crimes possible

diversion or rehabilitation

program by local social welfare

and development officer with

parents/guardians

If offense is punishable by more than 6

years diversion may be resorted to only by the regional trial court (ex/ robbery)

Over 70 years of age - A generic or ordinary mitigating

circumstance

- RA 9346 – prohibits the

imposition of death penalty

3. No Intention to commit so

grave a wrong

- The facts proven show that

there exists notable and evident

disproportion between means

employed to execute the

criminal act and its

consequences

- Notorious disproportion

between evil produced and the

means employed to execute it

*means employed can prove intention

Intent is a state of mind - The intention of the agent, as

an internal act and of his own

conscience and of his own

conscience, cannot be revealed

in any other manner than by

external and overt acts which

may accompany intention

Deducing intent - The intention of the culprit must

be deduced as a rule from the

nature and extent of the

tangible evil produced, as this is

almost always the palpable

manifestation of his will, except

when the proof and other

circumstances or antecedent

events may be a sufficient

ground to cause the belief that

the material act has

transcended the bounds of his

intention (Reyes)

- Baston and Death –

remembering that the

implement as a baston, the use

of which will force on the head

of a person would ordinarily

fracture the head.

- External acts may show intent –

The weapon used, nature of

injury inflicted, attitude of

mind/manner of commission

PP vs Callet The lack of intent to commit a

wrong so grave is an internal state. It is weighted based on the weapon

used, the part of the body injured,

the injury inflicted and the manner it is inflicted. 9 inch knife, on the

neck, attacking victim from behind, without giving him an opportunity to

defend himself. This shows he intended to do what he actually did.

Attendant facts and circumstance While intent to kill may be

presumed from the fact of the death of the victim, this mitigating factor

may still be considered when

attendant facts and circumstances so warrant as in the instant case.

Consider: Petitioner tried to avoid fight being smaller, He tried to parry

the blows of Tomelden, Hit lucky punch. He even helped carry his

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unconscious co-worker to the office of general manager.(Urbano)

PP vs Gonzales -This mitigating circumstance is

obtaining when there is a notable disparity between the means

employed by the accused to commit

a wrong and the resulting crime committed.

- The appellant‟s use of a gun, although not deliberately sought nor

employed in the shooting should have reasonably placed the

appellant on guard of the possible

consequences of his act.

Not inconsistent with treachery – treachery but mitigated by no

intention to commit so grave a

wrong - The trial court gave all of the

accused the benefit of the

mitigating circumstance that the

offenders had no intention to

commit so grave a wrong. The

estimation of this circumstance

was proper, and its allowance

was not inconsistent with the

finding that the crime was

murder. There was a clear

agreement that they will beat

the victim up using iron bars to

inflict only serious injury even

the one who didn‟t agree and

brought a knife. (Pp. vs

Enriquez GR no. 37408 Oct. 10,

1933. See also Cagoco)

Attendant circumstances

- The record shows, however,

that the offense committed was

characterized by treachery and

the appellants left the scene of

the crime only after the victim

had fallen down, Hence, the

mitigating circumstance of lack

of intention cannot be

appreciated in favour of the

appellants. PP vs Pajenado GR

No. L-26458 -1976

4. Sufficient Provocation

Requisites:

Provocation must be:

Sufficient

Originating from offended

party Immediate

Be sufficient and immediately preceding

(must be no interval of time) the act

The provocation to constitute a

mitigating circumstance, must, in the

language of the law, be sufficient, that

is, adequate to excite the person to

commit the wrong and must accordingly

be proportionate to its gravity. (PP. vs

Nabora. GR No. 48101 1941)

Must be accordingly proportionate to

each other the provocation and the act

committed

Sufficient provocation

Depends on:

The act constituting the

provocation

Social standing of the person

provoked

Place and time of provocation

Examples:

Forcing one‟s way into a line

despite being told not to by a

foreman (Carrero)

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Kicking and abusing the accused

for not preparing the evening

meal. (Firmo)

Asking for pardon from her

husband after the latter saw a

man jump from their window

(Marquez)

Urbano

When the law speaks of provocation either as a mitigating circumstance or as an

essential element of self-defense, the reference is to an unjust or improper

conduct of the offended party capable of exciting, inciting, or irritating anyone it is

not enough that the provocative act be

unreasonable or annoying; the provocation must be sufficient to excite one to commit

the wrongful act and should immediately precede the act.

…immediately precede the act There should be no interval of time.

Between the provocation made by the offended party and the commission of the

crime by the accused.

5. Immediate vindication of a grave

The grave offense is done to:

One committing offense

Spouse

Ascendants

Descendants

Legitimate, natural or adopted

brothers or sisters

Relatives by affinity within the

same degree

Immediate = Proximate (wrong interpretation from the Spanish Text)

Although this offense, which engenders perturbation of mind, was not so immediate,

this court is of the opinion that the influence

thereof, by reason of its gravity and the circumstances under which it was inflicted,

lasted until the moment the crime was committed.

Time to regain composure or equanimity

…still this mitigating circumstance cannot be

considered where sufficient time elapsed for the accused to regain his composure.”

“Without question, sufficient time had passed for appellants‟ emotions to cool and

for them to recover their equanimity.”

Grave offense NOT grave felony

The gravity of the offense depends on:

Social standing of the person

subject of the grave offense;

Place;

Time when insult was made

Grave offense “I will make a roast pig out of you” (Ampar)

“You live at the expense of your wife”

(Rosel) “You are a Japanese spy” (Luna)

6. Passion or obfuscation

The accused must have acted on an impulse so powerful that it naturally

That there be an act both

unlawful and sufficient to

produce such condition of mind

and

That said act which produces

the obfuscation was not far

remote from the

commission of crime for a

considerable length of time,

during which the perpetrator

might recover his normal

equanimity (PP vs Gravino)

Requisites:

Accused acted on impulse

Impulse so powerful that it

resulted to passion or

obfuscation

Prior unjust or improper conduct The circumstance “should not be taken into

consideration as an extenuating

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circumstance unless it appears that it was provoked by prior unjust or improper acts.”

(US vs Taylor G.R. No. 2309)

PP vs Noynay G.R. No. 38715

In order to be entitled to this mitigating circumstance it must appear that the

obfuscation of the accused arose from

lawful sentiments. The fact that an offense was committed in an uncontrollable burst of

passion should not be taken into consideration as an extenuating

circumstance unless it appears that it was provoked by prior unjust or improper acts.

PP vs Caliso GR No. 37271 The accused, in poisoning the child, was

actuated more by a spirit of lawlessness and revenge than by any sudden impulse of

natural and uncontrollable fury and because

such sudden burst of passion was not provoked by prior unjust or improper acts…

US vs Sarikala GR NO. L-12988

(Muslim househelp) The mitigating circumstance of passion and obfuscation

cannot be considered when a long period of

time has intervened between the impulse which produces it and the criminal act.”

…be not far removed…

(Pissing on coffee cup and spitting on face)

For the circumstance to exist, it is necessary that the act which gave rise to the

obfuscation be not removed from the commission of the offense by a considerable

length of time, during which period the

perpetrator might recover his normal equanimity…(PP vs Layson GR No. L-25177)

Must arise from lawful sentiments

(girl left previous lover and went to another soldier)…the only causes which mitigate the

criminal responsibility for the loss of self-

control are such as originate from legitimate feelings, not those which arise from vicious,

unworthy, and immoral passions. (US vs Hicks GR No. 4971)

Hicks and Dela Cruz distinguished In (Hicks) the cause of the alleged “passion

and obfuscation”…the refusal of the woman

to continue to live in illicit relations with him, which she had a perfect right to do;

In the present case however, the impulse upon which defendant acted and which

naturally “produced passion and

obfuscation” was not that the woman declined to have illicit relations with him, but

the sudden revelation that she was untrue to him, and his discovery of her in flagrante

in the arms of another. (US vs De la Cruz G.R. No. 7094)

Legitimate or illegitimate In Engay, the natural feeling of despair in

her after finding out that the man, she had been supporting and made many sacrifices

for, abandoned her is the source of the

passion/obfuscation

In Yuman, the woman who stabbed her partner who after taking advantage of said

woman abandoned her was considered by the SC as a legitimate source of passion or

obfuscation.

In Bello, it was the refusal of the woman to

go back to the accused and instead remain as a public hostess. It is curious that in this

case, it was the accused who induced the

victim to obtain employment as a public hostess in the first place.

Summary of rules

The act producing the condition of

mind/impulse must be unlawful while the sentiments of the accused from which the

passion or obfuscation originate from must be lawful. A single fact cannot be made the basis of different modifying circumstances

Well-settled is the rule that if these two

circumstance are based on the same facts, they should be treated together as one

mitigating circumstance. From the facts established in this case, it is clear that both

circumstances arose from the same set of

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facts aforementioned. Hence, they should not be treated as two separate mitigating

circumstances. (Romera vs PP GR No.

151978)

7. Voluntary surrender and confession For surrender to be appreciated it must be

spontaneous and unconditional because

he acknowledges his guilt or he wishes to save the authorities from the trouble

and expenses in his search and capture.

Requisites

Offender has not been actually

arrested.

The offender surrendered

himself to a person in

authority or his agent.

The surrender is voluntary.

PP vs Obligado GR No. 171735

(narrow footpath leading to accused‟s house and met with police on the way home after

the crime)

Inasmuch as he was intercepted by the arresting officer there, appellant had no

means of evading arrest. His surrender therefore was neither voluntary nor

spontaneous.

Warrant of arrest; issuance different from

service For while it is true that the warrant for his

arrest was dated 7 March 1967and the

police authorities were able to take custody of the accused only on 31 March 1967,

there is nothing on record to show that the warrant had actually been served

on him, or that it had been returned unserved for failure of the server to locate said accused. (PP vs Brana GR. No.

L-29210)

8. Physical Defect

Defect must restrict means of action,

defense or communication.

Law does not distinguish whether accused is educated or not.

9. Illness

Requisites:

Illness diminishes offenders

exercise of willpower

Does not deprive offender of

consciousness of his acts

10. Similar and Anologous Circumstances

Art. 14. Aggravating Circumstance

(Generic)

Increase the penalty without

exceeding the maximum

Based on greater perversity

Motivating power Place of commission

Means and ways

employed Time

Personal circumstances

Four Kinds

Generic Specific

Qualifying

Inherent

Qualifying Generic

cannot be offset can be offset

changes nature of crime

increases penalty

must be alleged must be alleged as amended

1. Advantage be taken by the

offender of his public position

a. What is important is that

the offender is a public

officer and he takes

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advantage of his public

position to commit the

crime.

Ex. People vs Villamor Policeman shot someone

using his service revolver.

Did the accused abuse his office to commit the crime?

This circumstance is not present.

US vs Torrida Torrida was a councilman

and demanded a non-existent fee from the

residents of their barrio. His position placed him in a

position to commit these

crimes. If he wasn‟t, he could not have induced the

injured parties to pay these alleged fines. It was for his

position that the injured

people made the payments.

Pablo vs PP Three Policemen in a motor

vehicle picked up people at

night and harassed the victims making false

charges to the victims and giving them choice to just

give them their valuables and they will not be

imprisoned. Their positions

caused the persuasion to let the victims into boarding

the mobile patrol car and hand over their money.

Clear case wherein public

officers abused their position.

PP vs Magayac 2000

CAFGU became embroiled in a family dispute and verbal

arguments turned into fist

blows and ultimately

defendant got his rifle to shoot the victim. That

accused-appellant was a

member of the dreaded CAFGU and used his

government issued M-14 rifle to kill Jimmy does not

necessarily prove that he

took advantage of his public position to commit the

crime.

PP vs Fallorina 2004 Fallorina was a policeman

on a motorcycle and met a

neighbour child playing with a kite who climbed the roof

to get the kite. Fallorina told child to get off the roof and

got pissed and shot the

child. There is no evidence on record that the appellant

took advantage of his position as a policeman.

PP vs Herrera 2001

The mere fact that the

accused-appellant is a policeman who used his

government issued .38 revolver to kill Ganan is not

sufficient to establish that

he misused his public position in the commission

of the crim.

PP vs Gapasin 1994

Appellant, a member of the PC, committed the crime

with an armalite which was issued to him when he

received the mission order. Aggravating circumstance

present.

2. In contempt of or w/insult to

the public authorities

Requisites:

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1. A public authority is engaged

in the exercise of functions

2. The public authority is not the

person against whom the crime

is committed

3. The offender knows him to be

a public authority

4. The presence of the public

authority does not prevent

the commission of the crime by

the offender

Public authority – One vested with jurisdiction. One with power to

govern and execute the laws.

Agents are not included – policemen and tanods.

PP vs Gutierrez 1999 Public officer should not be the

object of the offense

3. Disregard of Rank, Age, Sex or

Dwelling of Offended Party

Age may refer to the victim‟s

advanced age or very young age.

Rank - social position, standing in society, employment, any

organizations with hierarchy Must be deliberately intended to

insult the rank, age or sex of the

offended party for it to be considered.

PP vs Mangsant 1938

It was not shown that he had intended to offend or insult the sex

of the victim

PP vs Dela Cruz 2004

Accused stabbed a sickly 81-year old man.

It was not shown that appellant

deliberately intended to offend or insult the age of the offended party.

PP vs Hernandez 2004

Case involves robbery with homicide

This circumstance is limited to crimes against persons or honor.

Dwelling – a building or structure exclusively used for rest and

comfort. May be the entire structure or a portion thereof.

-Effects of the crime are felt in the

dwelling. Accused need not enter the dwelling.

PP vs Alcala 1922

Foot of the staircase of the house regarded as an integral part of the

dwelling of that family. The porch of

a house, not common to different neighbours, is a part of the

dwelling.

Sufficient provocation by owner of

the dwelling When there is sufficient provocation by the owner of the dwelling, this circumstance cannot

be appreciated.

“There must be a close relation

between provocation and commission of crime in the dwelling

of the person from whom the provocation came.”

US vs LIicarte 1912 Daughter was grossly insulted.

Dwelling was not considered.

PP vs Dequina 1934

Accused figured out that his wife and the victim were having an affair

from some source. He went to the lover‟s house and killed him. Later

on when he was charged he said there was sufficient provocation.

The provocation was not given

immediately prior to the commission of the crime and had no particular

relation to the house of the deceased. If the defendant had

entered the house of the deceased

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and surprised the deceased and the wife of the defendant in the act of

adultery, the aggravating

circumstance of morada(dwelling) would not exist.

When provocation negates dwelling

1. Must be immediate before the

commission of the crime

2. Close relation between the

provocation and the crime

committed in the dwelling

PP vs Agoncillo 2001 Rosalyn was not raped therein; she

was taken from her house and

raped somewhere. Although she was abducted therefrom, accused-

appellant was not charged with forcible abduction with rape but only

with rape. Considering that she was

not raped in her home, dwelling cannot be appreciated.

4. Abuse of confidence or obvious

ungratefulness.

1. The offended party trusts the offender

2. The offender abused such trust, and

3. The abuse facilitated the commission of the crime

Fiduciary(one of trust) relationship between offended and offender

PP vs Caliso 1933

Aggravating circumstance of grave

abuse of confidence was present since the appellant was the

domestic servant of the family and the “amah”.

PP vs Cram

There was no fiduciary relationship

between Cram and the child(victim).

5. Palace of the Chief Executive, in his presence, public authorities are

engaged in the discharge of duties or

in a place dedicated to public worship Palace of the Chief executive and

place dedicated to public worship – official or religious functions need

not be held.

Where public authorities are

engaged in the discharge of their duties – there must be some

performance of public functions

Par. 5 vs Par. 2

Public authorities are

performing their duties – same

Public authorities engaged in

the performance of their duties

must be inside their office –

Public authorities are

performing their duties outside

of their office

Public authority may be the

offended party – Public party

should not be the offended

party

Intent to commit the crime when the person entered/arrived at the

place.

6. Nighttime, uninhabited place, by a band

Considered as one if all are present.

Nighttime PP vs Librando 2000

One aggravating circumstance only. They can be considered

separately if their elements are

distinctly perceived and can subsist independently, revealing a greater

degree of perversity.

PP vs Silva 2002 Three ways which nighttime can be

considered (either of the 3):

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1. Especially sought for by the

offender

2. It is taken advantage of by him

3. It facilitates the commission of

the crime by ensuring the

offender‟s immunity from

capture

The fact that they brought with them a flashlight clearly shows that

they intended to commit the crime in darkness…

Darkness or obscurity

PP vs Carino 2004

The essence of this aggravating circumstance is the obscuridad

afforded by, and not merely chronological onset of, nighttime.

Although it was committed at night

nocturnity is not a modifying factor if place is adequately lighted.

Uninhabited place

Reasonable possibility for the victim

to receive some help in the place of the commission of the crime.

PP vs Rubia 1928

Aggravating circumstance of the crime having been committed in an

uninhabited place must be

considered, the incident having taken place at sea where it was

difficult for the offended party to receive help, while the assailants

could easily have escaped

punishment.

PP vs Lumandong 2000 Accused didn‟t get proper wages so

decided to kill family members of employer.

Isolated and grassy portion of the

Iponan River 200 meters away from her house before killing his said

victim thereby facilitating the commission of the crime.

Band More than three = at least four

Directly participate in the

execution of the act constituting the crime.

PP vs Magdamit 1997 Offense committed en cuadrilla

when more than three armed

malefactors shall have acted together in the commission thereof.

In the present case, there were seven armed conspirators involved

in the commission of the composite crime.

PP vs Dinamling 2002 It may be not all of you would kill

but all participated directly. All four accused-appellants were armed,

three with long firearms and the

other with short arms.

PP vs Lozano 2003 Any weapon which by reason of its

intrinsic nature or the purpose for which it was made or used by the

accused, is capable of inflicting

serious or fatal injuries upon the victim of the crime may be

considered as arms for purposes of the law on cuadrilla (fours).

7. On the occasion of a conflagration, shipwreck, earthquake, epidemic or

other calamity or misfortune. The rule in here is that the offender

must take advantage of the

calamity or misfortune in the commission of the crime

SC decision on post-World War II

chaos scenario – chaotic conditions is included in the calamity or

misfortune analogy.

8. Aid of armed men or persons who

insure or afford impunity

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Armed men must not participate in the execution of the felony otherwise they

are co-principals.

Lozano

Aid of armed men requires that they are accomplices who take part in

minor capacity, directly or indirectly.

9. Recividism

One who, at the time of the trial for one crime, shall have been

previously convicted by final judgment of another crime embraced in the same title of

the RPC.

Basis – indication of non-reform/criminal propensity

Theft and estafa, murder and homicide, homicide and physical

injuries.

Requisites: 1. Is on trial

2. Previously convicted by final

judgment

3. 1st and 2nd offense embraced in

the same title

4. Convicted of the 2nd offense

No recidivism if 2nd conviction is for

a crime committed before the commission of the crime involved in

the 1st conviction.

PP vs Rapisora 147855

Recidivist – one who at the time of his trial for one crime shall have

been previously convicted by final judgment of another crime

embraced in the same title of this

Code.

Necessary to allege the same

in the information and attach

thereto certified copies of the

sentences rendered against

the accused.

10. Reiteracion or Habituality Requisites:

1. The accused is on trial 2. Previously served sentence for another offense to which the law

attaches an equal or greater penalty, or for two or more crimes to which it attaches a lighter penalty than that for the

new offense;

3. The accused is convicted for the new offense

Recividism vs Habituality

Previously convicted by final

judgment – Previously served

sentence

Both are the same in that the

time of appreciative is at the

time the offender is facing trial

Reiteracion Recidivism

sentence served out

final judgement

not in same title same title of the

same code

not always aggravating

always aggravating

11. In consideration of a price, reward or promise

The price, reward or promise must be the primary consideration of

the offender in committing the crime.

Includes the person who gives the

rewards

PP vs Talledo 1950 This circumstance was not

considered primarily because there

was no conclusive evidence and the

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circumstance was not alleged in the information

PP vs Alincastre 1971 Shot and killed the mayor of

Olongapo The Talledo case is not authority on

this question

Indeed, the established rule in the Spanish jurisprudence is to the

effect that the aggravating circumstance of price, rewards or

promise thereof affects both the offeror and the acceptor.

The circumstance may even evince

even greater moral depravity in the offeror than in the acceptor.

PP vs Canete 1984

Aggravating circumstance of price

was present in the crime to both offeror and acceptor.

12. By means of inundation, fine,

poison, explosion, stranding of vessel or intentional damage thereto,

derailment of locomotive, or any other

artifice involving great waste or ruin Any of the circumstances in this

paragraph must be used by the offender to accomplish the crime,

hence the phrase “by means of…”

Means must be specifically resorted

to commit the crime. In treachery as long as it‟s present

that aggravated circumstance is

there without regard to the purpose of the offender (ex. His plan was to

commit a tree adjacent to window where victim sleeps and shoot him

while he sleeps. When person enters he shoots person who is

different from intended victim)

PP vs Comadre 2004

He threw a stick of dynamite at the person who is prostrate at the

ground. Explosive became the

qualifying aggravating circumstance while treachery as generic

aggravating circumstance.

PP vs Galura

Chocolates with Cantharide to sexually stimulate girl. But boyfriend

did not intend to kill girlfriend.

13. Evident premeditation

Requisites: 1. The time when the offender

determined to commit the crime

2. An act manifestly indicating the

culprit‟s determination to

commit the crime

3. A sufficient lapse of time

between determination and

execution

Sufficient time to contemplate

the consequences of his acts

PP vs Tobechukwu 2001

The essence of evident premeditation is that the execution

of the criminal act is preceded by cool thought and reflection upon

the resolution to carry out the

criminal intent within a space of time sufficient to arrive at a calm

judgment.

US vs The Moro Manalinde 1909 A case where you have all the 3

requisites of evident premeditation present.

Time – decided to commit the crime accepting the order

Determination – got knife and wrapped it with banana leaves and

A sufficient lapse of time – walked

for 3 days

PP vs Mendoza No sufficient time to coolly and

serenely think and deliberate on the meaning and the consequences of

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what they planned to do, an interval long enough

PP vs Hilario 2001 Arrived early afternoon, witnesses

heard them planning to kill a person, when information was

brought to them of the location of

the victim, they went there and killed person but not the intended

victim (white t-shirt). Evident premeditation cannot be take into

account when the person whom the defendant proposed to kill from the

one who became his victim.

Manalinde vs Hilario

The fact was the victim was not predetermined. Does not affect the

nature of the crime.

14. Craft, Fraud orDisguise

Craft involves intellectual trickery and cunning.

PP vs Nunez

Craft should also be appreciated as

aggravating when victim was lured. Rivera to accept the proceeds of the

sale of a gun. A scheme employed by the accused to get him to get

inside the car.

Disguise

PP vs Reyes 1998

It is also worth mentioning that

while appellant reportedly had a sort of a mask and was usng

sunglasses, these clumsy accoutrements could not constitute

the aggravating circumstance of disguise. Legally, disfraz

contemplates a superficial but

somewhat effective dissembling to avoid identification. Disguise was

also not alleged in the information

PP vs Cabato 1988

Cabato‟s disguise (mask) fell during the commission of the crime. The

fact that the mask subsequently fell

down thus paving the way for Cabato‟s identification will not

render this aggravating circumstance inapplicable. Disguise

was considered.

PP vs Cunanan 1977

Malefactors resorted to disguise. Circumstance did not facilitate the

consummation of the killing. Nor was it taken advantage of by the

malefactors in the course of the

assault. They announced their presence at

the scene of the crime with shouts and gunshots. That mode of attack counteracted whatever deception might have arisen from their disguise.

Purpose of the offender is to

conceal his identity

To facilitate the commission of

the crime

Offender takes advantage of

the disguise

Effective

15. Advantage be taken of superior

strength or means be employed to weaken the defense.

PP vs Drew 2001 GR No. 127368

Several of them ganged up on victim.

Must be shown that accused is physically stronger than the victim.

Used and abused their superiority of

their combined strength or inherent superiority.

PP vs Padilla GR No. 75508 1994

45 caliber pistol, defense plywood. Abuse of superior strength may

include use of powerful weapon out

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of proportion to the defense available to the offended party.

PP vs Amodia 177356 2008 Numerical superiority but took

turns. SC said they did not took advantage of superior strength.

Numbers is not enough there must

be clear proof that assailants purposely used excessive force out

of proportion to the defense available to the person attacked.

PP vs Ventura 148145-46 2004

Killed the employer and the wife of

the employer at dawn. A man with a deadly weapon attacked an

unarmed and defenceless woman constitutes the circumstance of

abuse of that superiority which his

sex and the weapon used in the act afforded him, and from which the

woman was unable to defend herself.

Means employed to weaken

defense.

The means must not be of such a nature that the victim could not put

up any sort of defense otherwise that would be a case of treachery.

PP vs Ducusin 30724 1929 He made victim drunk with Cognac.

16. Treachery

PP vs Gidoc GR 185162 2009

Singing in the karaoke Crimes against persons, employing

means methods, or forms in the execution thereof that tend directly

and specially to insure its execution, without risk to himself arising from

the defense which the victim might

make.

-Swift and unexpected attack w/out the slightest provocation on

the latter‟s part.

PP vs REgalado 177302 2009

Chu was caught off-guard because

he was still asking forgiveness then accused suddenly drew a curved

knife and stabbed and pursued the following victim. Precluding Chua

from defending himself.

Treachery cannot be presumed

PP vs Abdulah 182518 2009 Abdulah was looking for a girl and

asked directions and was able to locate the girl. Later on girl was

discovered dead. SC said it is not

enough to establish treachery. All was circumstantial. Must be proved

as if it is an element of the offense.

Elements of treachery Velasco vs PP

166479 2006 a) The time of the attack, the

victim was not in a position to

defend himself;

PP vs Dela Pena 183567 2009

Victim was unarmed, attacked from behind a window to mask

his presence and identity.

b) And the accused consciously

and deliberately adopted the

particular means, methods or

forms of attack employed by

him.

PP vs Guevarra 182192 2008 Inspector Barte as just sitting in

the jeep and was shot on the

head and the chest by .45 caliber.

Baluyot and Canete

If aggression is continuous

treachery must be present in the beginning of the assault.

If there is an interruption in the assault, it is sufficient that treachery be present at the moment the fatal blow was delivered. It is this interruption that gives the accused

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the time to consciously and deliberately adopt the means and

method of execution.

…with treachery

PP vs Trinidad 38930 1988 As long as treachery is present it

will be considered even if there is a

mistake in the person, blow, etc. That Juan Angel, and not his

mother, was apparently the intended victim is not incompatible

with the existence of treachery. When he saw a person sleeping in

the room offender shot the person.

Not intended victim. Treachery may be taken into account even if the

victim of the attack was not the person whom the accused intended

to kill.

17. Ignominy

Ignominy is a circumstance pertaining to the moral order, which

adds disgrace and obloquy to the material injury caused by the crime. US vs Abaigar 1255 1903

Effects of the crime more humiliating.

US vs De Leon 522 1902

Land owner was made to kneel

before his servants before he was killed.

A deliberate effort to add humiliation to the effects of the

crime.

PP vs Acaya L-72998 188

Victim was dancing a fandango in public and was stabbed while

dancing. It does not follow that there was intention to put the

offended party to shame the fact

that he was stabbed in a public place.

PP vs Siao 126021 2000

Used not only the missionary position but also the dog position

the aggravating circumstance of

ignominy attended the commission thereof.

18. Unlawful Entry

When an entrance is effected by a

way not intended for the purpose.

PP vs Mendiona 129056 2000 Entrance through the window

19. Breaking wall, roof, floor, door or

window

Must be resorted to as a means to the commission of the crime

What distinguishes this from unlawful entry is that in the latter

the window or point of ingress need

not be broken

20. Aid of persons under 15 or by means of motor vehicle, airships or

other similar means. Must be deliberately used in the

commission of the crime.

PP vs Espejo L-27708 1970

Jeep was used at arriving, to carry the effects, escaping. Deliberately

used in the commission of the

crime.

More jurisprudence state that

mere use of a motor vehicle in

escaping is not aggravating.

21. Cruelty

Cruelty refers to physical suffering as compared to Ignominy which

refers to moral suffering, i.e.,

disgrace and shame.

Test in appreciating cruelty PP vs Sitchon 2002

Child was killed with a hammer. Whether the accused deliberately

and sadistically augmented the

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wrong by causing another wrong not necessary for its commission, or

inhumanly increased the victims

suffering or outraged or scoffed at his person or corpse…the culprit

enjoys and delights in making his victim suffer slowly and gradually,

causing him moral and physical pain

which is unnecessary for the consummation of the criminal act

which he intended to commit. Accused was not given the

aggravating circumstance because it was more of a result of drug use.