PRELIMINARY CONSIDERATIONS

LAW --- A body of rules of action or conduct [obligatory to all – subject to

certain exception, e.g., Art. 14 Civil Code ] prescribed by the controlling authority [that
has the power to enforce discipline], and having binding legal force. [Black’s Law
Dictionary, p. 459, 1987 ed.]
Art. 14 Civil Code: Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in Philippine territory, subject to the principles of
public international law and to treaty stipulations.

1. CRIMINAL LAW, Defined --- Criminal law is that branch of municipal law (That
which pertains solely to the citizens and inhabitants of a state, as contradistinguish from
International Law.), which defines crimes, treats of their nature, and provides for
their punishment.

2. CRIME, Defined --- A crime is the COMMISSION or OMISSION (See Art. 208
RPC, Prevaricacion - Negligence) by a person having capacity, of any act, which is
either prohibited or compelled by law and the commission or omission of which is
punishable by a proceeding brought in the name of the government [People of the
Philippines, Plaintiff] whose law has been violated.

2.a. So that, there is no crime where there is no law punishing an act.

NULLUM CRIMEN, NULLA POENA SINE LEGE. Clearly there is no common law crime
in the Philippines.

2.b. Section 5, Rule 110, Rules of Criminal Procedure: Who must

prosecute criminal actions. --- All criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control of a public prosecutor
(a.k.a. Fiscal). In case of heavy work load schedule of the public prosecutor or in the
event of lack of public prosecutors, the private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or the Regional State Prosecutor (duly
noted by the RSP) to prosecute the case subject to the approval of the court. Once so
authorized to prosecute the criminal action, the private prosecutor shall continue to
prosecute the case up to the end of the trial even in the absence of a public prosecutor,
unless the authority is revoked or otherwise withdrawn. xxx.

2.c. The word CRIME is generic. If the act is defined and punished by the
RPC (Revised Penal Code), it is called a FELONY (although it is not wrong to call
felonies as offenses). Oftentimes, our legal eagles and learned authors would use the
term “offense” in lieu of “felony.” (Interchangeably) This is true even with some of the
provisions in the Revised Penal Code.
If by a special act or law, e.g., by a P.D. (Presidential Decree) or R.A. (Republic
Act), it is called an OFFENSE. If by an ordinance, it is called an INFRACTION.

3. LIMITATIONS UPON THE POWER OF THE PHILIPPINE CONGRESS TO

ENACT PENAL LAWS:
a. It cannot enact ex post facto laws;
b. It cannot enact a bill of attainder. [A legislative act that applies either to named
individuals or to easily ascertainable members of a group in such a way as to inflict
punishment on them without trial.];

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c. Penal laws must be of general application; and
d. No cruel, degrading, or inhuman punishment. Imposition of excessive fines is not
allowed. [Art. III, Sect. 19 (1) Bill of rights, 1987 Constitution ]

CHARACTERISTICS OF CRIMINAL LAW:

a. Generality --- Art. 14. Civil Code: Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject
to the principles of public international law and to treaty stipulations.

b. Territoriality --- Rule 110, Sect. 15 [a] [b] [c] [d] Dec 1, 2000 Rules of Criminal
Procedure, infra. See Art. 2 RPC

c. Prospectivity or irretrospectivity --- Art. 4, Civil Code: Laws shall have no

retroactive effect, unless the contrary is provided. NOTE: If favorable to the
accused/convict, it may be given retroactive effect, but even if it is favorable to the
accused/convict, it cannot be given a retroactive effect if the accused/convict is a
habitual delinquent or that the law so expressly provides that it has no retroactive effect.
N.B. --- See: Art. 2, Art. 22, ART. 62 (5), ART. 366 of the RPC. (See: ANG BENG,
ET AL., and Crisanto Tamayo, both on page 8)

(a) GENERALITY:

EN BANC
G.R. No. L-44896 July 31, 1936

RODOLFO A. SCHNECKENBURGER, petitioner, vs.

MANUEL V. MORAN, Judge of First Instance of Manila,
respondent.

ISSUE: Whether or not a consul is entitled to the privileges

and diplomatic immunities of an ambassador or minister [Heads of
States, charges d’affairs, and attaches ---Supplied].

HELD: It is well settled that a consul is not entitled to the

privileges and immunities of an ambassador or minister, but is
subject to the laws and regulations of the country to which he is
accredited. (Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A
consul is not exempt from criminal prosecution for violations of the
laws of the country where he resides. (U. S. vs. Ravara, 2 Dall.,
297; 1 Law. ed., 388; Wheaton's International Law [2d ed.], 423.)

NOTE: 1. Consuls and vice consuls may be exempted from

criminal prosecution if there exists a treaty stipulation to that
effect. (Scratch my back and I will scratch your back.)
2. The immunity may only apply under the DOCTRINE
OF RECIPROCITY, i.e., where the country of the diplomatic
representative provides for the same protection to our own
diplomatic representatives. (Scratch my back and I will scratch
your back.)

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 ARTICLE VI, SEC. 11, 1987 PHIL. CONSTITUTION

A Senator or Member of the House of Representatives

shall, in all offenses punishable by not more than six (6) years
imprisonment, be privileged from arrest while the Congress is in
session. No Member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in any
committee thereof.

REPUBLIC ACT NO. 75 October 21, 1946

AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE

PROPER OBSERVANCE BY THE REPUBLIC AND
INHABITANTS OF THE PHILIPPINES OF THE IMMUNITIES,
RIGHTS, AND PRIVILEGES OF DULY ACCREDITED FOREIGN
DIPLOMATIC AND CONSULAR AGENTS IN THE PHILIPPINES

Sec. 4. Any writ or process sued out or prosecuted by

any person in any court of the Republic of the Philippines, or by
any judge or justice, whereby the person of any ambassador or
public minister of any foreign State, authorized and received as
such by the President, or any domestic or domestic servant of any
such ambassador or minister is arrested or imprisoned, or his
goods or chattels are distrained (Distrain – to seize, as goods or
chattels, for debt.), seized, or attached, shall be deemed void, and
every person by whom the same is obtained or prosecuted,
whether as party or as attorney, and every officer concerned in
executing it, shall, upon conviction, be punished by imprisonment
for not more than three years and a fine of not exceeding two
hundred pesos in the discretion of the court.

Sec. 5. The provisions of section four hereof shall not

apply to any case where the person against whom the process is
issued is a citizen or inhabitant of the Republic of the Philippines,
in the service of an ambassador or a public minister, and the
process is founded upon a debt contracted before he entered
upon such service; nor shall the said section apply to any case
where the person against whom the process is issued is a
domestic servant of an ambassador or a public minister, unless
the name of the servant has, before the issuing thereof, been
registered in the Department of Foreign Affairs, and transmitted by
the Secretary of Foreign Affairs to the Chief of Police of the City of
Manila, who shall upon receipt thereof post the same in some
public place in his office. All persons shall have resort to the list of
names so posted in the office of the Chief of Police, and may take
copies without fee.

Sec. 6. Any person who assaults, strikes, wounds,

imprisons or in any other manner offers violence to the person of
an ambassador or a public minister, in violation of the law of

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 nations, shall be imprisoned not more than three years, and fined
not exceeding two hundred pesos, in the discretion of the court, in
addition to the penalties that may be imposed under the Revised
Penal Code.

Sec. 7. The provisions of this Act shall be applicable only

in cases where the country of the diplomatic or consular
representative adversely affected has provided for similar
protection to duly accredited diplomatic or consular
representatives of the Republic of the Philippines by prescribing
like or similar penalties for like or similar offenses herein
contained.

REPUBLIC ACT NO. 386 June 18, 1949

AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE

OF THE PHILIPPINES

Art. 3. Ignorance of the law excuses no one from

compliance therewith.
Art. 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by disuse,
or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or the
Constitution. (5a)
Art. 8. Judicial decisions applying or interpreting the laws
or the Constitution shall form a part of the legal system of the
Philippines. (n)
Art. 10. In case of doubt in the interpretation or application
of laws, it is presumed that the lawmaking body intended right and
justice to prevail. (n)
Art. 12. A custom must be proved as a fact, according to
the rules of evidence. (n)

(b) TERRITORIALITY:

RULES OF CRIMINAL PROCEDURE

[Effective 01 Dec. 2000]

Rule 110, Sec. 15. Place where action is to be instituted. ---

[a] Subject to existing laws, the criminal action shall be

instituted and tried in the court of the municipality or territory
where the offense was committed or where any of its essential
ingredients occurred.

[b] Where an offense is committed in a train, aircraft, or

other public or private vehicle in the course of its trip, the criminal

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action shall be instituted and tried in the court of any municipality
or territory where such train, aircraft, or other vehicle passed
during its trip, including the place of its departure and arrival.

[c] Where an offense is committed on board a vessel in the

course of its voyage, the criminal action shall be instituted and
tried in the court of the first port of entry or of any municipality or
territory where the vessel passed during such voyage, subject to
the generally accepted principles of international law.

[d] Crimes committed outside the Philippines but

punishable under Article 2 of the RPC shall be cognizable by the
court where the criminal action is first filed.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

ISSUE: whether the courts of the Philippines have

jurisdiction over crimes committed aboard merchant vessels
anchored in our jurisdiction waters.

HELD: There are two fundamental rules on this particular

matter in connection with International Law; to wit:
(a) FRENCH RULE, according to which crimes committed
aboard a foreign merchant vessels should not be prosecuted in
the courts of the country within whose territorial jurisdiction they
were committed, unless their commission affects the peace and
security of the territory; and

(b) ENGLISH RULE, based on the territorial principle and

followed in the United States, according to which, crimes
perpetrated under such circumstances are in general triable in the
courts of the country within territory they were committed.

Of these two rules, it is the last one that obtains in this

jurisdiction, because at present the theories and jurisprudence
prevailing in the United States on this matter are authority in the
Philippines, which is now a territory of the United States.

We have seen that the mere possession of opium aboard a

foreign vessel in transit was held by this court not triable by our
courts, because it being the primary object of our Opium Law to
protect the inhabitants of the Philippines against the disastrous
effects entailed by the use of this drug, its mere possession in

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such a ship, without being used in our territory, does not bring
about in the said territory those effects that our statute
contemplates avoiding. Hence such a mere possession is not
considered a disturbance of the public order.

But to smoke opium within our territorial limits, even

though aboard a foreign merchant ship, is certainly a breach
of the public order here established, because it causes such
drug to produce its pernicious (harmful) effects within our territory.
It seriously contravenes the purpose that our Legislature has in
mind in enacting the aforesaid repressive statute.

U.S. v. Ah Sing, 36 Phil. 978, 10 Oct. 1917, EN BANC

In the case of United States vs. Look Chaw ([1910], 18

Phil., 573), in the opinion handed down by the Chief Justice, it is
found:
That, although the mere possession of a thing of prohibited
use in these Islands, aboard a foreign vessel in transit, in any of
their ports, does not, as a general rule, constitute a crime triable
by the courts of this country, on account of such vessel being
considered as an extension of its own nationality, the same rule
does no apply when the article, whose use is prohibited within the
Philippine Islands, in the present case a can of opium, is landed
from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a
violation of the penal law in force at the place of the commission of
the crime, only the court established in the said place itself has
competent jurisdiction, in the absence of an agreement under an
international treaty.

A marked difference between the facts in the Look Chaw

case and the facts in the present instance is readily observable. In
the Look Chaw case, the charge was the illegal possession and
sale of opium in the present case the charge is illegal importation
of opium; in the Look Chaw case the foreign vessel was in
transit in the present case the foreign vessel was not in transit; in
the Look Chaw case the opium was landed from the vessel upon
Philippine soil in the present case of United States vs. Marcelo
Jose and Tan Bo [10 Aug.1916], the main point, and the one on
which resolution turned, was that in a prosecution based on the
illegal importation of opium or other prohibited drug, the
Government must prove, or offer evidence sufficient to raise a
presumption, that the vessel from which the drug is discharged
came into Philippine waters from a foreign country with the drug
on board. In the Jose case, the defendants were acquitted
because it was not proved that the opium was imported from a
foreign country; in the present case there is no question that the
opium came from Saigon to Cebu. However, in the opinion in the
Jose case, we find the following which may be obiter dicta, but

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 which at least is interesting as showing the view of the writer of
the opinion:

The importation was complete, to say the least, when the

ship carrying it anchored in Subic Bay. It was not necessary that
the opium discharged or that it be taken from the ship. It was
sufficient that the opium was brought into the waters of the
Philippine Islands on a boat destined for a Philippine port and
which subsequently anchored in a port of the Philippine Islands
with intent to discharge its cargo.

Resolving whatever doubt exists as to the authority of the

views just quoted, we return to an examination of the applicable
provisions of the law. It is to be noted that section 4 of Act No.
2381 begins, "Any person who shall unlawfully import or bring any
prohibited drug into the Philippine Islands." "Import" and "bring"
are synonymous terms. The Federal Courts of the United States
have held that the mere act of going into a port, without breaking
bulk, is prima facie evidence of importation. (The Mary [U. S.], 16
Fed. Cas., 932, 933.) And again, the importation is not the making
entry of goods at the custom house, but merely the bringing them
into port; and the importation is complete before entry of the
Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024,
1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the
Opium Law, we expressly hold that any person who unlawfully
imports or brings any prohibited drug into the Philippine Islands,
when the prohibited drug is found under this person's control on a
vessel which has come direct from a foreign country and is within
the jurisdictional limits of the Philippine Islands. In such case, a
person is guilty of illegal importation of the drug unless contrary
circumstances exist or the defense proves otherwise. xxx. To
anticipate any possible misunderstanding, let it be said that these
statements do not relate to foreign vessels in transit, a situation
not present.

JURISDICTION OVER CRIMES COMMITTED ON BOARD FOREIGN

MERCHANT VESSELS WHILE IN PHILIPPINE WATERS: [Does not apply to Men-o-
War.]

a. THE FRENCH RULE --- Crimes committed on board while on the waters of
another country are not triable in that country unless those affect the peace and security
of said country or the safety of that country is endangered.

b. THE ENGLISH RULE --- crimes committed on board are triable in that country
unless such crimes affect merely the internal management of the vessel. [Followed in
the Philippines. U.S. v. Wong Cheng, 19 Oct. 1922, supra.]

(c) IRRETROSPECTIVITY OR PROSPECTIVITY:

EN BANC

Page 7 of 125
 G.R. No. L-9621 January 30, 1957
ANG BENG, ET AL., petitioners-appellants,
vs.
THE COMMISSIONER OF IMMIGRATION, respondent-appellee.

ISSUE: Whether the order deporting the petitioners should

be set aside, because the law defining the crime of which they
were convicted had already expired.

HELD: The benefit of retroactivity and liberal

construction accrues when penal laws are repealed, not when
they merely expired by virtue of their own force.
The felony with which the petitioners were charged was
committed during the effectivity of the Import Control Law. The
pertinent legal provisions are therefore Articles 366 and 22 of the
Revised Penal Code, to wit:

ART. 366. Without prejudice to the provisions contained in

Article 22 of this Code, felonies and misdemeanors, committed
prior to the date of effectiveness of this Code shall be punished in
accordance with the Code or Acts in force at the time of their
commission.
ART. 22. Penal laws shall have a retroactive effect in so far
as they favor the person guilty of felony, who is not a habitual
criminal, as this term is defined in Rule 5 of Article 62 of this Code,
although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the
same.

EN BANC
G.R. No. L-41423 March 19, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CRISANTO TAMAYO, defendant-appellant.

Appellant was convicted in the justice of the peace court of

Magsingal, Province of Ilocos Sur, of a violation of section 2,
municipal ordinance No. 5, series of 1932, of said municipality.
Upon appeal to the Court of First Instance of Ilocos Sur conviction
resulted and a fine was imposed. From that decision this appeal
was brought.
While this appeal was pending, the municipal council
repealed section 2 in question, which repeal was duly approved by
the provincial board, and the act complained of, instead of being a
violation of the municipal ordinances, is now legal in that
municipality.
Appellant has moved for a dismissal of the action against
him on account of that repeal.
In the leading cases of the United States vs. El Chino Cuna
(15 Dec. 1908), and Wing vs. United States (218 U.S., 272), the

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 doctrine was clearly established that in the Philippines repeal of a
criminal Act by its reenactment, even without a saving clause,
would not destroy criminal liability. But not a single sentence in
either decision indicates that there was any desire to hold that a
person could be prosecuted, convicted, and punished for acts no
longer criminal.
There is no question that a common law and in America a
much more favorable attitude towards the accused exists relative
to statutes that have been repealed than has been adopted here.
Our rule is more in conformity with the Spanish doctrine, but even
in Spain, where the offense ceases to be criminal, prosecution
cannot be had. (1 Pacheco Commentaries, 296.)
The repeal here was absolute, and not a reenactment and
repeal by implication. Nor was there any saving clause. The
legislative intent as shown by the action of the municipal council is
that such conduct, formerly denounced, is no longer deemed
criminal, and it would be illogical for this court to attempt to
sentence appellant for an offense that no longer exists.

5. RULES OF CONSTRUCTION OF PENAL LAWS:

a. The Court is constrained to resolve the issue in favor of the accused

consistent with the rule on the construction of penal laws, that they are strictly
construed against the government and liberally in favor of the accused. [Nov. 21,
1991, Aurora T. Aquino vs. Court of Appeals, Et Al.]

People v. Yu Hai, 15 AUG. 1956 ---- Finally, criminal statutes are to be

strictly construed against the government and liberally in favor of the accused. As
it would be more favorable to the herein accused to apply the definition of "light
felonies" under Article 9 in connection with the prescriptive period of the offense
charged, the same should be followed. Under Article 90, the offense charged,
being a light offense, prescribed in two months. As it was allegedly committed on
June 26, 1954 and the information filed only on October 22, 1954, the lower court
correctly ruled that the crime in question has already prescribed.

b. PRO REO Doctrine --- Whenever a penal law is to be construed or

applied and the law admits of two interpretations, i.e., one lenient to the offender
and the other strict to the latter, the one favorable to the offender shall be
adopted.

c. The final claim of appellee is that inasmuch as the provisions of the law
under which he was prosecuted are ambiguous and there is doubt as to their
interpretation, that doubt should be resolved in his favor because a penal statute
should be strictly construed against the State. This contention must also fail if we
are to be consistent with our interpretation of the provisions of Section 15 (a) of
the law. We have stated that section is clear and unambiguous and covers the
provisions embodied in Section 3 of the law, and if such is the case then there is
no room for the application of the principle invoked by appellee. [ Sept. 30, 1958,
PP vs. Alfonso Gatchalian, En Banc]

d. The ruling in People v. Yabut, June 26, 1992, is further instructive, viz:

Page 9 of 125
 “Well established is the rule that when the inculpatory (Incriminatory) facts
and circumstances are capable of two (2) or more explanations, one of which is
consistent with the innocence of the accused and the other consistent with his
guilt, then the evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction.” [Reiterated in People vs. Tadepa, May 26,
1995]

e. Also, in People v. Malapayon, June 16, 2000, the Honorable Supreme

Court stated: “When a circumstance is capable of two interpretations, one
consistent with the accused’s guilt, and one with his innocence, the latter must
prevail.
SOME LEGAL MAXIMS
[maxim --- a principle or formula embodying a rule of conduct.]
(APHORISM –A short wise saying.)
a. IGNORANTIA LEGIS NEMINEM EXCUSAT. Ignorance of the law excuses no
one from compliance therewith. (“Ignorantia juris non excusat or ignorantia legis
neminem excusat”) [See: R.A. No. 386, page 4]
b. IN DUBIIS REUS EST ABSOLVENDUS. All doubts should be resolved in favor
of the accused.
c. ACTUS NON FACIT REUM, NISI MENS SIT REA --- The act does not make a
person a criminal unless his mind be criminal. Applies to DOLO only. In fact, a crime
may be committed sans criminal intent in the following cases: (a) felonies committed by
means of Culpa; and (b) offenses punishable as mala prohibita. [ Luis A. Tabuena,
petitioner, vs. Hon. Sandiganbayan, and The People Of The Philippines, respondents.
February 17, 1997 ]
d. PLUS PECCAT AUTHOR QUAM ACTOR: The originator or instigator of a
crime is a worse offender than the actual perpetrator. (Principal by inducement)
e. EX VERBIS LEGIS. Follow the literal or plain meaning.
f. A VERBA LEGIS NON EST RECEDENDUM: From the words of the statute
there should not be a departure.
g. DURA LEX SED LEX: The law may be harsh, but that is the law.
h. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS: What is not included in the
express mention of things is deemed excluded.
i. IGNORANTIA FACTI EXCUSAT: Mistake of fact is exempting.
j. RES IPSA LOQUITOR: The thing speaks for itself.
k. NULLUM CRIMEN NULLA POENA SINE LEGE. There is no crime where
there is no law punishing an act.
l. ACTUS NON FACIT REUM, NISI MENS SIT REA --- A crime is not committed
if the mind of the person performing the act complained of be innocent.(Applies to
DOLO, but not to CULPA)
m. ABERRATIO ICTUS- Criminal liability is incurred by any person committing a
felony, although the wrongful act be different from that which he intended.
n. ACTOR NON PROBANTE REUS ANSOLVITUR-When plaintiff has not
sufficiently proven his complaint, defendant must be absolved. A companion maxim is
"he who alleges the affirmative must prove it." Or that "the rule in procedure is that upon
him who affirms devolves the burden of proof."
o. ACTUS ME INVITO FACTUS NON EST MEUS ACTUS - Act done by me
against my will is not my act. The force contemplated must be so formidable as to
reduce the actor to a mere instrument who acts not only without will but against his will.
The duress, force, fear or intimidation must be present, imminent and impending, and of
such nature as to induce a well-grounded apprehension of death or serious bodily harm

Page 10 of 125
if the act be done. A threat of future injury is not enough. The compulsion must be of
such a character as to leave no opportunity for the accused for escape or self-defense
in equal combat.
p. DAMNUM ABSQUE INJURIA - Damage without injury. (Damage without legal
wrong.)
q. EJUSDEM GENERIS - Where general terms follow a particular enumeration,
the general terms include all those specifically enumerated. (Martin S. Emin, petitioner,
vs. Chairman Corazon Alma G. De Leon, Commissioners Thelma P. Gaminde and
Ramon P. Ereneta, Jr., of the Civil Service Commission, respondents., February 27,
2002, En Banc)
r. VERBA INTENTIONI, NON E CONTRA, DEBENT INSERVIRE - Words should
be made subservient to the intent not contrary to it.

PHIL. CONSUMERS FOUNDATION, INC., petitioner, vs. NTC and PLDT CO.,
respondents., (Aug 18, 1984, En Banc)
Any lawyer of modest sophistication knows that canons of statutory construction
march in pairs of opposite. Thus with the canons above mentioned we have the
following opposite: verba intentioni, non e contra, debent inservire (words ought to
be more subservient to the intent and not the intent to the words). Sutherland explains
the limits of literalism thus:
"The literal interpretation of the words of an act should not prevail if it creates a
result contrary to the apparent intention of the legislature and if the words are
sufficiently flexible to admit of a construction which will effectuate the legislative
intention. The intention prevails over the letter, and the letter must if possible be read so
as to conform to the spirit of the act. 'While the intention of the legislature must be
ascertained from the words used to express it, the manifest reason and obvious
purpose of the law should not be sacrificed to a literal interpretation of such words.'
Thus words or clauses may be enlarged or restricted to harmonize with other provisions
of an act. The particular inquiry is not what is the abstract force of the words or what
they may comprehend, but in what sense were they intended to be understood or what
understanding do they convey as used in the particular act," (Vol. 2A Statutory
Construction, pp. 65-66 [1972].)
It is an elementary rule in statutory construction that the word "may" in a statute
is permissive while the word "shall" is mandatory. The rule, however, is not absolute.

s. STARE DECISIS – Adherence to judicial precedents is known as the Doctrine

of Stare Decisis. [Doctrine of Stare Decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But idolatrous reverence for precedent,
simply as precedent, no longer rules. More important than anything else is that the court
should be right. And particularly it is not wise to subordinate legal reason to case law
and by so doing perpetuate error xxx.
( PHIL. TRUST CO. and SMITH, BELL & COMPANY, LTD. vs. L. P. MITCHELL ET AL.,
8 Dec. 1933)]
t. PRO REO DOCTRINE – See page 9 (Rules of Construction of Penal Laws)

December 8, 1930
ACT NO. 3815
THE REVISED PENAL CODE
(As amended)
AN ACT REVISING THE PENAL CODE AND OTHER PENAL LAWS

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Preliminary Art. — This law shall be known as "The Revised Penal Code."
BOOK ONE
GENERAL PROVISIONS REGARDING THE DATE OR
ENFORCEMENT AND APPLICATION OF THE PROVISIONS
OF THIS CODE, AND REGARDING THE OFFENSES, THE
PERSON LIABLE AND THE PENALTIES

Preliminary Title

DATE OF EFFECTIVENESS AND APPLICATION OF THE

PROVISIONS OF THIS CODE

Art. 1. Time when Act takes effect. — This Code shall take effect on the first day
of January, nineteen hundred and thirty-two (01 Jan. 1932).

Art. 2. Application of its provisions. — Except as provided in the treaties and laws
of preferential application, the provisions of this Code shall be enforced not only within
the Philippine Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship [Must be
duly registered under Philippine laws so that it may be considered as an
extension of our national territory.];
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the Philippine
Islands; [Ex. --- Art. 163, pars. 1 & 2; Art. 166; Art. 167]
3. Should be liable for acts connected with the introduction into these islands
of the obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the
exercise of their functions [Those having to do with the discharge of their duties
in a foreign country.]; or
5. Should commit any of the crimes against national security and the law of
nations, defined in Title One of Book Two of this Code. [Art. 114, treason; Art 115,
Conspiracy and proposal to commit treason; Art. 116, Misprision of treason; Art. 117,
Espionage; Art. 118 Inciting to war; Art. 119 Violation of neutrality; Art. 120,
Correspondence with hostile country; Art. 121, Flight to enemy’s country; Art. 122,
Piracy; Art. 123, Qualified piracy.]

SCOPE OF APPLICATION OF THIS CODE:

a. Territorial --- Application of this Code within the physical and juridical
boundaries [terrestrial] of the Philippines including its atmosphere, internal waters, and
maritime zone [12 nautical miles from the baseline].

b. Extraterritorial --- Application of this Code beyond the physical limits and
juridical boundaries of the Philippines. Crime is said to be extraterritorial when
committed in a place or country outside of the Philippines.

c. Exterritoriality --- The privilege of those persons [such as foreign ambassadors,

sovereigns or heads of state, minister plenipotentiary, attaches, or charges d’affairs]
who, though temporarily resident within the Philippines, are not subject to the operations
of our laws [Generally accepted principles of Public International Law]. The privilege

Page 12 of 125
extends to their retinue, and members of their household, and other similar position and
rank. [N.B. --- Provided registered with the DFA.]
Consuls and vice consuls may enjoy this privilege if there exist a treaty
stipulation between their country and the Philippines. Moreover, all of these are only
applicable under the Doctrine of Reciprocity [scratch my back and I will scratch yours]
and that the foreign representatives and ours must be duly accredited.
Title One
FELONIES AND CIRCUMSTANCES WHICH
AFFECT CRIMINAL LIABILITY
Chapter One
FELONIES

Art. 3. Definitions. — Acts and omissions punishable by law are felonies (delitos).
Felonies are committed not only by means of deceit (dolo) but also by means of fault
(culpa). There is deceit when the act is performed with deliberate intent and there is
fault when the wrongful act results from imprudence, negligence, lack of foresight, or
lack of skill.

ANNOTATIONS

a. ELEMENTS [They must concur]:

Dolo --- Freedom, Intelligence, and Intent. [Malicious/evil intent or legal

malice or bad purpose] (ATM: F I I)

Culpa --- Freedom, intelligence, and negligence or imprudence. (ATM: F I

N I ) plus Lack of skill or Lack of foresight.

b. Dolo and Culpa are just the modality by which a felony is committed. So that in
a case of reckless imprudence resulting in homicide, what is being punished is not the
reckless imprudence, but the commission of the homicide.

PP vs. CASTILLO, ET AL., accused. RAYMUNDO, appellant.(01 Feb.1946 )

“In view of the facts stated above, said judgment of conviction is untenable, on
the ground that the offense of frustrated homicide requires the concurrence of the
essential requisite of intent to kill, which is incompatible with the charge of reckless
imprudence; although a charge for physical injuries, serious or less serious, through
reckless imprudence, is legally proper under the law; as in that case the act sought to
be punished is the material damage or injury actually done.”

c. But a person accused of willful falsification of public document may be

convicted of reckless imprudence resulting in falsification of such document. The latter
being a lesser crime and necessarily included in the former.

d. FREEDOM is voluntariness, i.e., exercising one’s own will or choice.

Irresistible force and uncontrollable fear (Art. 12, par. 5 & 6) negates freedom.

e. INTELLIGENCE is the moral capacity to determine what is right from what is

wrong and to realize the consequences of one’s acts. Minority, insanity, or imbecility
negates intelligence.

Page 13 of 125
 f. INTENT is the purpose to use a particular means to effect such a result.
MOTIVE is the reason, which impels a person to commit an act for a definite result.
Intent is an element of a crime. Motive is not. It is not even necessary to prove motive if
there is credible direct evidence pointing to the accused as the actor. Admittedly, prove
of motive may only be needed when the evidence at hand is not conclusive or purely
circumstantial. Intent is presumed from the commission of an unlawful act. Mistake of
facts negates intent.
If the victim dies, intent to kill is presumed [PP v. Ortega, Jr., July 24, 1997].

PP vs. FORTICH and GAID, 13 Nov. 1997

“In Isidoro Mondragon v. People (30 June 1966), it was held that the intent to kill
being an essential element of the offense of frustrated or attempted homicide, said
element must be proved by clear and convincing evidence and with the same degree of
certainty as is required of the other elements of the crime. The inference of intent to kill
should not be drawn in the absence of circumstances sufficient to prove such intent
beyond reasonable doubt.”

g. General intent --- this is presumed. Like in the crime of consummated

homicide, intent to kill is presumed.

h. Specific intent --- this must be proved as it is an element of a felony. Like in

the crime of attempted homicide, if intent to kill is not proved, the crime may only be
physical injuries.( PP v. Glino, 04 Dec. 2007: An essential element of murder and
homicide, whether in their consummated, frustrated or attempted stage (ART. 6), is
intent of the offenders to kill the victim immediately before or simultaneously with the
infliction of injuries.) Intent to kill is a specific intent which the prosecution must prove
by direct or circumstantial evidence, while general criminal intent is presumed from the
commission of a felony by dolo. In PP v. Delim [28 Jan. 2003], the Court had occasion
to explain the rudiments of proving intent to kill in crimes against persons. It may
consist in: (1) the means used by the malefactors; (2) the nature, location and number
of wounds sustained by the victim; (3) the conduct of the malefactors before, at the time
of, or immediately after the killing of the victim; (4) the circumstances under which the
crime was committed; and (5) the motives of accused. If the victim dies as a result of a
deliberate act of the malefactors, intent to kill is presumed.

i. Intent is incompatible with negligence, imprudence, or lack of foresight or lack

of skill or deficiency of perception (PP v. Ting Lan Uy Jr., 17 Nov. 2005).

j. A crime may be committed even in the absence of criminal intent in felonies

committed by means of culpa and offenses punishable by special acts or laws [mala
prohibita] (See: PP v. Ting Lan Uy Jr., 17 Nov. 2005 ---- . Art. 217 RPC: Malversation
may be committed either through a positive act of misappropriation of public funds or property
or passively through negligence by allowing another to commit such misappropriation).

k. NEGLIGENCE --- The omission to do something, which a reasonable person,

guided by those ordinary considerations which ordinarily regulate human affairs, would
do, or the doing of something which a reasonable and prudent man would not do.
Deficiency of action.

Page 14 of 125
 l. IMPRUDENT --- Not prudent; lacking prudence or discretion; indiscreet;
injudicious; rash; heedless; not cautious; deficient in perception.

m. MISTAKE OF FACT is exempting [applies only in crimes committed by

means of dolo], mistake in the identity of the victim [ERROR EN PERSONAE] is not
exempting because in the latter there exists criminal intent. ( As a general rule, mistake
of fact or good faith of the accused is a valid defense in a prosecution for a felony by
dolo; such defense negates malice or criminal intent. However, ignorance of the law is
not an excuse because everyone is presumed to know the law. Ignorantia legis
neminem excusat. [Manuel v. PP, 29 Nov. 2005])

CASES:
People vs. Oanis et al. July 27, 1943

1. CRIMINAL LAW; MURDER.-Appellants Corporal

Galanta and Chief of Police Oanis were under instructions to
arrest one, Balagtas, a notorious criminal and an escaped convict,
and, if overpowered, to get him dead or alive. Proceeding to the
suspected house, appellants went into a room and on seeing a
man sleeping with his back towards the door, simultaneously or
successively fired at him with their 32 and 45 caliber revolvers,
without first making any reasonable inquiry as to his identity. The
victim turned out to be an innocent man, Tecson, and not the
wanted criminal. Held: That under the circumstances, the crime
committed by appellants is murder though specially mitigated by
circumstances presently to be mentioned.
2. CASE AT BAR DISTINGUISHED FROM UNITED
STATES vs. AH CHONG (19 March 1910). -In support of the
theory of non-liability by reason of honest mistake of fact,
appellants rely on the case of United States vs. Ah Chong. The
maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah
Chong case, defendant therein after having gone to bed was
awakened by someone trying to open the door. He called out
twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out
again, "if you enter the room I will kill you." But at that precise
moment, he was struck by a chair which had been placed against
the door and believing that he was then being attacked, he seized
a kitchen knife and struck and fatally wounded the intruder who
turned out to be his room-mate. A common illustration of innocent
mistake of fact is the case of a man who was masked as a footpad
at night and in a lonely road held up a friend in a spirit of mischief,
and with leveled pistol demanded his money or life. He was killed
by his friend under the mistaken belief that the attack was real,
that the pistol leveled at his head was loaded and that his life and
property were in imminent danger at the hands of the aggressor.
In these instances, there is an innocent mistake of fact committed
without any fault or carelessness because the accused, having no
time or opportunity to make a further inquiry, and being pressed
by circumstances to act immediately, had no alternative but to

Page 15 of 125
 take the facts as they then appeared to him, and such facts
justified his act of killing. In the instant case, appellants, unlike the
accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The
person in the room being then asleep, appellants had ample time
and opportunity to ascertain his identity without hazard to
themselves, and could even effect a bloodless arrest if any
reasonable effort to that end had been made, as the victim was
unarmed, according to one eyewitness. This, indeed, is the only
legitimate course of action for appellants to follow even if the
victim was really Balagtas, as they were instructed not to kill
Balagtas, at sight, but to arrest him, and to get him dead or alive
only if resistance or aggression is offered by him.
5. KILLING AT BAR IS INTENTIONAL AND NOT MERELY
ACCIDENTAL.-The crime committed by appellants is not merely
criminal negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused to another
should be unintentional, it being simply the incident of another act
performed without malice. (Reckless Imprudence, PP vs.
Francisco Sara, 15 Aug. 1931) In the words of Viada. "para que
se califique un hecho de imprudencia espreciso que no hay
amedia doenél maliciani intención alguna de dañar; existiendo
esa intención deberá calificarse el hecho del delito que ha
producido, pormás qua no have side la intención del agente el
causar un mal de tanta gravedad como el que se produjo." (Torn,)
7, Viada Código Penal Comentado, 5 ed., pág. 7.) And, as once
held by this court, a deliberate intent to do an unlawful act is
essentially inconsistent with. the idea of reckless imprudence
(People vs. Nanquil, 43 Phil, 232: People vs. Bindor, 56 Phil., 16),
and where such unlawful act is willfully done, a mistake in the
identity of the intended victim cannot be considered as
reckless imprudence (PP vs. Gona [Mansaca], 15 Mar. 1930 ) to
support a plea of mitigated liability.

Tabuena vs. Hon. Sandiganbayan and People, February 17, 1997

Thus, even if the order is illegal if it is patently legal and the

subordinate is not aware of its illegality, the subordinate is not
liable, for then there would only be a mistake of fact committed
in good faith.

n. MALA EN SE & MALA PROHIBITA: The first is a wrong from its very nature,
wrong in itself. Intent is an element, and good faith is a defense. The second is wrong
because it is prohibited and punished by law. Although intent is not an element, but
there must be intent to perpetrate the act, which means that it must be committed
consciously, freely, and voluntarily [With freedom and intelligence.]. In addition,
modifying circumstances and stages of execution are inapplicable in mala prohibita.
Good faith and absence of criminal intent, however, are not valid defenses since
the offense committed is malum prohibitum punished by special law. [PP v. Neri, Dec.
19, 1985]

Page 16 of 125
Art. 4. Criminal liability. — Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done
be different from that which he intended.
2. [Impossible crimes] By any person performing an act, which would be an
offense against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means. [Penalty is arresto mayor or a fine from 200 to 500 pesos] (INTOD v.
C.A. & PP, 21 OCT. 1992)

ANNOTATIONS
First Paragraph

a. As regards paragraph 1, the aid to memory is DINALOCO, i.e., “A person

committing an intentional felony is liable for all the DIrect, NAtural, and
LOgical COnsequence of his felonious act. This does not apply to felonies
committed by culpa because in Art. 4 there must be criminal intent. If the act
committed is lawful, even if an injury ensued, there is no criminal liability. If
negligence or imprudence accompanies the act, the same is not considered
lawful. --- re culpa, see Art. 365.

b. Doctrine: El que es causa de la causa es causa del mal causado --- He

who is the cause of the cause is the cause of the evil caused. [PP v. Ural, 27
March 1974]

G.R. No. L-30801 March 27, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DOMINGO URAL, accused-appellant
The similar rule in American jurisprudence is that "if the act
of the accused was the cause of the cause of death, no more is
required" (40 C.J.S. 854). So, where during a quarrel, the accused
struck the victim with a lighted lamp, which broke and fell to the
floor, causing the oil to ignite and set fire to the rug, and, in the
course of the scuffle, which ensued on the floor, the victim's
clothes caught fire, resulting in burns from which he died, there
was a sufficient causal relation between the death and the acts of
the accused to warrant a conviction of homicide (Williams vs.
U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).

There is a rule that "an individual who unlawfully inflicts

wounds upon another person, which result in the death of the
latter, is guilty of the crime of homicide, and the fact that the
injured person did not receive proper medical attendance does not
affect the criminal responsibility" (U.S. vs. Escalona, En Banc 16
Nov. 1908). In the Escalona case, the victim was wounded on the
wrist. It would not have caused death had it been properly treated.
The victim died sixty days after the infliction of the wound. It was
held that lack of medical care could not be attributed to the
wounded man. The person who inflicted the wound was
responsible for the result thereof.

Page 17 of 125
 c. The felony must be the direct and proximate cause of the injury inflicted by
the offender upon the victim.

d. PROXIMATE CAUSE "that cause, which, in natural and continuous

sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.” And more
comprehensively, "the proximate legal cause is that acting first and producing
the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the cause
which first acted, under such circumstances that the person responsible for
the first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury
to some person might probably result therefrom." [FILOMENO URBANO vs.
INTERMEDIATE APPELLATE COURT, ET AL., January 7, 1988]

e. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus
may have been the proximate cause of Javier's death with which the
petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo,
et al., 18 May 1956, EN BANC.
"A prior and REMOTE CAUSE cannot be made the basis of an action
if such remote cause did nothing more than furnish the condition or give rise
to the occasion by which the injury was made possible, if there intervened
between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would not
have happened but for such condition or occasion. If no danger existed in the
condition except because of the independent cause, such condition was not
the proximate cause. And if an independent negligent act or defective
condition sets into operation the instances which result in injury because of
the prior defective condition, such subsequent act or condition is the
proximate cause." (45 C.J. PP. 931-932). (at p. 125) [FILOMENO
URBANO vs. INTERMEDIATE APPELLATE COURT, ET AL., supra]

If an active force intervened between the felony and the injury, which
is a distinct act foreign to the crime, there is no liability for such injury. [EN
BANC, Feb. 28, 1947, El Pueblo de Filipinas v. Raymundo Rellin]

Second Paragraph
Impossible Crime (Immediately consummated)

a. If the act performed is constitutive of another distinct crime, impossible crime

is not committed because objectively a crime is committed.
a.1. Ex. --- Lacing the victim’s drink with sufficient amount of poison, but
no injury resulted to the victim because of resistance to such substance. --- Frustrated
murder.
a.2. If the amount of poison is not sufficient to harm a normal person ---
impossible crime because of inadequate or ineffectual means employed. Provided the
actor believes that the amount was sufficient and that the crime of murder may be
effectively carried out. Belief on the part of the actor is also an essential factor.

Page 18 of 125
 b. In impossible crime, there is no attempted or frustrated stage.
REQUISITES:
a. That the act performed would be an offense against persons or property;
b. That the act was done with evil intent;
c. That its accomplishment is inherently impossible, or that the means employed
is either inadequate or ineffectual; and
d. That the act performed should not constitute a violation of another provision of
the Revised Penal Code.
Felonies against persons: Parricide; murder; homicide; infanticide; abortion;
duel; physical injuries; and rape.
Felonies against property are: Robbery; Brigandage; theft; usurpation; culpable
insolvency; swindling and other deceits; violation of chattel mortgage; arson and
other crimes involving destruction; and malicious mischief.

Art. 5. Duty of the court in connection with acts which should be repressed but
which are not covered by the law, and in cases of excessive penalties. — Whenever a
court has knowledge of any act which it may deem proper to repress and which is not
punishable by law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of legislation.
In the same way the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without suspending
the execution of the sentence, when a strict enforcement of the provisions of this Code
would result in the imposition of a clearly excessive penalty, taking into consideration
the degree of malice and the injury caused by the offense.

ANNOTATIONS

Rightly so, because in our jurisdiction there is no common law crime. Nullum
crimen nulla poena sine lege.

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated

felonies as well as those, which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the
acts of execution, which would produce the felony as a consequence, but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the commission of a felony
directly by over acts, and does not perform all the acts of execution, which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance. [See also proximate cause and remote cause, page 18.]
ANNOTATIONS

a. Felonies committed by culpa are immediately consummated. Art. 6 is

inapplicable to crimes that are mala prohibita. Impossible crimes are immediately
consummated

b. Direct overt act --- an outward act done in pursuance and manifestation of a
criminal intent or design.
PP vs. LIZADA, Jan 24, 2003 (En Banc)

Page 19 of 125
 The raison d’etre for the law requiring a direct overt act is that, in a majority of
cases, the conduct of the accused consisting merely of acts of preparation has never
ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It
is that quality of being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or an overt act or
before any fragment of the crime itself has been committed, and this is so for the reason
that so long as the equivocal (having 2 or more meaning) quality remains, no one can
say with certainty what the intent of the accused is. It is necessary that the overt act
should have been the ultimate step towards the consummation of the design. It is
sufficient if it was the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made. The act done need not
constitute the last proximate one for completion. It is necessary, however, that the
attempt must have a causal relation to the intended crime. In the words of Viada, the
overt acts must have an immediate and necessary relation to the offense.

c. "Overt acts" has been defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which
if carried to its complete termination following its natural course, without being frustrated
by external obstacles nor by the voluntary desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense. [People vs. Mauricio February 28, 2001,
EN BANC]

d. Action must be judged not by what a person says, for what a person does is
the best index of that person’s intentions.

e. Kinds of crimes as to the presence of stages of execution:

b.1. FORMAL CRIMES --- Always consummated by a single act, e.g.,

physical injuries, grave oral defamation, & libel. [ATM --- Finish]

b.2. MATERIAL CRIMES --- With stages. [ATM --- Many]

f. Subjective phase is that portion of the execution of the crime commencing

from the point where the actor starts up to that point where the actor still has control of
his/her act. The felony is attempted.
If the subjective phase is already passed, i.e., where the actor has no more
control of his act, but the felony is not produced, as a rule, the felony is frustrated.

g. Objective phase is the result of the acts of the execution --- the felony is
accomplished. The felony is consummated if the subjective phase and the objective
phase are present.

h. There is no hard and fast rule in determining whether the felony is attempted,
frustrated, or consummated. We have to consider the elements and the nature of each
individual felony, including the manner of its execution.

i. The desistance in the attempted stage refers to the crime intended to be

committed and not to the crime actually committed before the desistance [PP. v.
Palomares, (CA) 75 O.G. 5739].

Page 20 of 125
 j. Even if the victim was wounded, but the injury was not fatal and could not
cause his death --- attempted stage only. [PADDAYUMAN v. PP. 23 Jan. 2002; PP v.
COSTALES, 15 Jan. 2002] N.B. ---These cases effectively overturned Borinaga, Dec.
18, 1930 [State of mind]

k. Since the victim was shot on the knee, which was not fatal, attempted murder
was committed and not frustrated murder. [PP v. PILONES, 21 July 1978]

l. In attempted homicide or murder, injury to the victim is not a requisite,

PROVIDED, that the offender had started the commission of the intended crime by
direct over act, but does not perform all the acts of execution, which should produce the
felony by reason of some cause or accident other than his own spontaneous
desistance. Accused fired four (4) shots at his intended victim, but the latter was not hit,
either because of poor aim or because his intended victim succeeded in dodging the
shots. The acts thus committed by the accused constitute attempted homicide. [PP v.
Kalao, 17 March 1934]

m. In order to justify a conviction for the crime of frustrated murder, the proof
must show that the accused has performed all acts necessary to cause the death of a
human being under circumstances which would have raised the homicide, if
consummated, to the degree of murder, and that the failure to consummate the crime
was due to causes independent of the will of the accused. [U.S. v. Simeon, April 15,
1904]

o. One who raises a weapon against another as if about to strike with it is guilty
of other light threats [Art. 285]. [Simeon, supra]

p. In attempted felonies, it is necessary to alleged in the information that

“accused commenced the commission of the felony directly by overt acts and did not
perform all the acts of execution, which should have produced the felony by reason of
some cause or accident other than his own spontaneous desistance. [People vs. PO3
Tan, et al., 21 June 2001]

q. Rape is either attempted or consummated. For the consummation of rape,

perfect penetration is not essential. Any penetration of the female organ by the male
organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the
hymen or laceration of the vagina, is sufficient to warrant conviction. Necessarily, rape
is attempted if there is no penetration of the female organ because not all acts of
execution were performed. The offender merely commenced the commission of a
felony directly by overt acts. The law on frustrated rape is a dead statute. [People vs.
Aca-ac, 20 April 2001] (New Anti-Rape Law, R.A. 8353)

r. When no part of the building is burned, the crime committed is attempted

arson. No one could truthfully or successfully maintain that the offender had performed
all the acts of execution, which would produce the felony of arson as a consequence
because the element of burning of the building is still missing, and the result can be no
more than attempt to commit the offense. [PP v. Garcia, [CA] 14 Nov. 1952, citing “PP
v. Fernandez, 54 Phil. 122”]

m. The case of U.S. v. Valdez, 39 Phil., 250, Dec. 10, 1918 where it was stated
that the crime committed was frustrated arson no longer applies.

Page 21 of 125
 PP v. Antonino Hernandez, 05 Dec. 1929
The trial court held that the crime committed was only frustrated arson. We agree
with the Attorney-General that the crime was consummated. The appellant did in
fact, set fire to the roof of the house, and said house was in fact partially burned. With
this, the crime of arson was consummated, notwithstanding the fact that the fire was
afterwards extinguished, for, once the fire has been started, the consummation of the
crime of arson does not depend upon the extent of the damage caused. This court has
so held in the cases of United States vs. Go Foo Suy and Go Jancho (5 Sept. 1913)
and United States vs. Po Chengco (23 Phil., 487).

n. In attempted theft, it is not necessary that there should be real or actual gain
on the part of the offender or that he was able to make use of or derive benefit from the
fruits of his criminal act. [PP v. FRANCISCO MERCADO, June 15, 1938, EN BANC,
citing United States vs. Adiao (38 Phil., 754, Oct. 8, 1918, En Banc) In the Adiao case,
a Manila customs inspector took a leather belt from the baggage of a passenger who
had just landed at the port of Manila and kept it in his office desk where the other
employees found it afterwards. He was not able to make use of said belt, but he was
found of guilty of theft for the reason that he had performed all the acts of execution
necessary for the consummation of the crime.

o. If the offender is caught before the actual taking of the thing, after having
performed all the acts of execution or before the offender has final control and
disposal of the thing, the theft is frustrated. So that if the accused was discovered with
the stolen bulky articles at a checkpoint, which must first be passed before the stolen
articles could be subject to the control and disposal of the accused, the theft was only
frustrated because the vehicle was not able to leave the compound. [PP. v. Flores, 6
CAR 834, citing PP v. Dino, 45 O.G. 3446]

Art. 7. When light felonies are punishable. — Light felonies are punishable only
when they have been consummated, with the exception of those committed against
person or property.
[PENALTY: See Art. 9 re amendments as per R. A. 10951]
Art. 8. Conspiracy and proposal to commit felony. — Conspiracy and proposal to
commit felony are punishable only in the cases in which the law specially provides a
penalty therefor.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.

ANNOTATIONS

a. ATM --- (1) Conspiracy RPC COURTS [Coup d’etat, rebellion, treason,
sedition] (2) Proposal RPC COURT only.
a.1. Art. 136 ---Conspiracy and proposal to commit coup d’etat & rebellion.
a.2. Art. 115 --- Conspiracy and proposal to commit treason.
a.3. Art. 141 --- Conspiracy to commit sedition. [NOTE: No proposal]

b. Conspiracy to commit other crimes is also punishable.

Page 22 of 125
 In restraint of trade, Art. 186, RPC, mere conspiracy constitutes the
commission of the felony. In brigandage, Art. 306, RPC, mere formation of a group of
brigands is already punishable. R.A. 9165, conspiracy to bring into the country
dangerous drugs; P.D. 1613, conspiracy to commit arson; P.D. 1728, conspiracy to
maliciously damage any building or personal/real property by explosives or incendiary
device.

Art. 9. Grave felonies, less grave felonies and light felonies. — Grave felonies
are those to which the law attaches the capital punishment or penalties, which in any of
their periods are afflictive, in accordance with Art. 25 of this Code.
Less grave felonies are those, which the law punishes with penalties, which in
their maximum period are correctional, in accordance with the above-mentioned article.
Light felonies are those infractions of law for the commission of which a penalty
of arresto menor or a fine not exceeding 40,000 pesos or both; is provided.(R.A. 10951,
AUG. 31, 2017)

Art. 10. Offenses not subject to the provisions of this Code. — Offenses,
which are or in the future may be punishable under special laws, are not subject to the
provisions of this Code. This Code shall be supplementary to such laws, unless the
latter should specially provide the contrary.

Chapter Two
JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

Art. 11. Justifying circumstances. — The following do not incur any criminal
liability;
1. [SELF-DEFENSE] Anyone, who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.

ANNOTATIONS
March 5, 2018 G.R. No. 217974
PP, Plaintiff-Appellee vs. REZOR JUANILLO MANZANO, Accused-Appellant.
On the first element, the consistent teaching by the
Court on unlawful aggression is as follows:
Unlawful aggression on the part of the victim is the
primordial element of the justifying circumstance of self-
defense. Without unlawful aggression, there can be no
justified killing in defense of oneself. The test for the
presence of unlawful aggression under the circumstances is
whether the aggression from the victim put in real peril the
life or personal safety of the person defending himself; the
peril must not be an imagined or imaginary threat.
Accordingly, the accused must establish the concurrence of
three elements of unlawful aggression, namely: (a) there
must be a physical or material attack or assault; (b) the
attack or assault must be actual, or, at least, imminent; and
(c) the attack or assault must be unlawful.

Page 23 of 125
 Unlawful aggression is of two kinds: (a) actual or
material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means
an attack with physical force or with a weapon, an offensive
act that positively determines the intent of the aggressor to
cause the injury. Imminent unlawful aggression means an
attack that is impending or at the point of happening; it must
not consist in a mere threatening attitude, nor must it be
merely imaginary, but must be offensive and positively
strong (like aiming a revolver at another with intent to shoot
or opening a knife and making a motion as if to attack).
Imminent unlawful aggression must not be a mere
threatening attitude of the victim, such as pressing his right
hand to his hip where a revolver was holstered,
accompanied by an angry countenance, or like aiming to
throw a pot.

a. Self-defense is not limited to life, but includes defense of chastity, property,

honor, and libel.

a.1. The attempt to rape a woman constitutes an aggression sufficient to

put her in a state of legitimate defense inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very existence; and it is evident
that a woman who, thus imperiled, wounds, nay (or rather) kills the offender, should be
afforded exemption from criminal liability since such killing cannot be considered a
crime from the moment it became the only means left for her to protect her honor from
so great an outrage. [PP vs. LUAGUE and ALCANSARE, November 7, 1935]

a.2. Aside from the right to life on which rests the legitimate defense of our
own person, we have the right to property acquired by us, and the right to honor, which
is not the least prized of our patrimony [PP v. Jaurigue, 21 Feb. 1946 --- A beautiful
woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman
represents the only true nobility. And they are the future wives and mothers of the land
Such are the reasons why, in the defense of their honor, when brutally attacked, women
are permitted to make use of all reasonable means available within their reach, under
the circumstances. Criminologists and courts of justice have entertained and upheld this
view.]

b. In DEFENSE OF PROPERTY, there is no requirement that the unlawful

aggression must be directed against the lawful possessor of the property. Unlawful
aggression may be directed even against his property rights. The assault on the
property of the person making the defense, therefore, amounts to unlawful aggression
as contemplated by law. In the case at bar, there was an actual physical invasion of
appellant's property, which he had the right to resist, pursuant to Art. 429 of the Civil
Code of the Philippines. [PP v. Narvaez, 20 April 1983, GRN L-33466:]
However, attention is drawn to the Due Process Clause of the Constitution, viz:
“Article III, Section 1. No person shall be deprived of life, liberty, or property without due
process of law, xxx.” This is not an empty and hollow sequencing. The import of such
statement is that in the event of conflict among said rights, the right to life reigns
supreme, next is the right to liberty, and least among them is the right to property. That

Page 24 of 125
is, in the hierarchy of rights, the right to life occupies the highest echelon. Therefore, it is
strongly suggested that in the justifying circumstance of defense of property, extra care
must be taken in the determination of the “reasonableness of the means employed to
repel the unlawful aggression.”

b.1. Related provisions in the Civil Code of the Philippines:

Art. 429. The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof. For this purpose, he may
use such force as may be reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his property. [DOCTRINE
OF SELF-HELP]

Art. 536. In no case may possession be acquired through force or

intimidation as long as there is a possessor who objects thereto. He who believes that
he has an action or a right to deprive another of the holding of a thing must invoke the
aid of the competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession;

and should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the Laws and the Rules of Court.

c. REASONABLE NECESSITY of the means employed to repel an unlawful

aggression:

PP v. Punzalan, 6 August 1987

ISSUE: What is the gauge in determining the “REASONABLENESS OF

THE MEANS EMPLOYED” to repel an unlawful aggression?

HELD: The law does not require, and it would be too much to ask of the ordinary
man, that when he is defending himself from a deadly assault, in the heat of an
encounter at close quarters, he should so mete out his blows that upon a calm and
deliberate review of the incident, it will not appear that he exceeded the precise
limits of what was absolutely necessary to put his antagonist hors de combat [disabled;
out of combat]; or that he struck one blow more than was absolutely necessary to
save his own life; or that he failed to hold his hand so as to avoid inflicting a fatal-
wound where a less severe stroke might have served his purpose. Of course, the victim
of an unlawful aggression may not lawfully exceed the bounds of rational necessity in
repelling the assault.
But the measure of rational necessity in cases of this kind is to be found in
the situation as it appears to the victim of the assault at the time when the blow is
struck; and the courts should not and will not, in the light of after events or fuller
knowledge, hold the victims of such deadly assaults at close quarters, to so strict
a degree of accountability that they will hesitate to put forth their utmost effort in
their own defense when that seems to them to be reasonably necessary.
"The reasonableness of the means employed to prevent an aggression
depends upon the nature and quality of the weapon used by the aggressor, his
physical condition, his size, his character and the surrounding circumstances vis-
à-vis those of the person defending himself. It is also well settled that in
emergencies, which imperil the life and limb of a person, human nature

Page 25 of 125
 acts not upon processes of formal reason but in obedience to the
imperious [urgent] dictates of the instinct of self-preservation.

b. For self-defense to prosper, it must be established that: (1) there was unlawful
aggression by the victim; (2) that the means employed to prevent or repel such
aggression was reasonable; and (3) that there was lack of sufficient provocation
on the part of the person defending himself. [PP v. Geneblazo, July 20, 2001,
citing People vs. Augusto Loreto Ringor, Jr., (1999 Dec 9, En Banc).]
That the gauge of rational necessity of the means employed to repel the
aggression as against one's self or in defense of a relative is to be found in the situation
as it appears to the person repelling the aggression. The reasonableness of the means
adopted is not one of mathematical calculation or "material commensurability between
the means of attack and defense" but the imminent danger against the subject of the
attack as perceived by the defender and the instinct more than reason that moves the
defender to repel the attack. It has further been stressed in such cases that to the
imminent threat of the moment, one could not be hoped to exercise such calm judgment
as may be expected of another not laboring under any urgency and who has sufficient
time to appraise the urgency of the situation. [Eslabon v. PP, Feb. 24, 1984]

If, in order to consider that a defendant acted in lawful defense, it is sufficient that
he had well-founded reasons to believe that, under the attendant circumstances, the
means employed by him to prevent or to repel the aggression, was necessary. [(U.S. v.
Mariano Batungbacal, 1918 Jan 10) We have stated that the defendant was justified in
believing reasonably that the lives of his two children and that of Hilaria Tianko were in
imminent peril. But we can say more. We agree that Hilaria Tianko's life was in fact in
imminent peril. The deceased, from the kitchen stairs, had already resolutely assaulted
her with a bolo, and she was able to escape the blow only by having taken timely flight
with the children. Undoubtedly, if the deceased had overtaken Hilaria in the sala of the
house, where the defendant was sleeping, the aggression would have been
consummated there. The danger, as regard the person of Hilaria Tianko, was not
apparent in the defendant's mind, under the circumstances surrounding him, but it was
also a real danger.
For the foregoing reasons, and in consideration of the fact that, according to the
evidence, the assaulted parties did not provoke the assault, nor was the defendant
moved by sentiments of revenge or resent, or any other unlawful motive, and finding
that the defendant acted in lawful defense of the persons of his two children and Hilaria
Tianko, we hold that he should be exempted from criminal liability, and we acquit him,
with the costs de Officio. So ordered.]

d. Unlawful aggression contemplates an actual, sudden, and unexpected

attack, or imminent danger thereof, and not merely a threatening or intimidating attitude
-- there has to exist a real danger to the life or personal safety of the person claiming
self-defense. [People vs. Elezer Galapin & Ernesto Beira, Jr., 31 July 1998; People v.
Geneblazo, July 20, 2001]
Such aggression refers to an attack that has actually broken out, or
materialized, or is at the very least clearly imminent; it cannot consist merely of any
oral threat or intimidating stance or posture. [PP v. Catbagan, Feb. 23, 2004] There is
that rule that if it is clear that the purpose of the aggressor in retreating is to take a more
advantageous position to ensure the success of the attack already begun, the unlawful
aggression is considered still continuing; and the one resorting to self-defense has a
right to pursue and disable the aggressor. [Catbagan, supra.]

Page 26 of 125
 To constitute unlawful aggression, it is necessary that an attack or material
aggression, an offensive act positively determining the intent of the aggressor to cause
an injury shall have been made. A mere threatening or intimidating attitude is not
sufficient to justify the commission of an act which is punishable per se, and to allow a
claim of exemption from liability on the ground that it was committed in self-defense. For
unlawful aggression to be present in self-defense, there must he real danger to life or
personal safety. [PP v. Macaso, 3 June 1975]

e. There is no unlawful aggression when the peril to one’s life, limb, or right is not
either ACTUAL or IMMINENT. Thus, there must be actual physical force [material
attack] or a threat to inflict real injury. In case of a threat, it must be offensive and
positively strong so as to display a real, not imagined, intent to cause an injury. [PP v.
Basadre, Feb. 22, 2001]

f. Even if appellant believed that the deceased did try to kill him when he saw him
raise his bolo, such aggression ceased when appellant succeeded in grabbing the bolo.
When an unlawful aggression, which has begun, no longer exists, one making a
defense has no right to kill or even injure the former aggressor. [PP v. Bautista, 27 Feb.
2004]

g. There is a rule that if it is clear that the purpose of the aggressor in retreating
is to take a more advantageous position to ensure the success of the attack already
begun, the unlawful aggression is considered still continuing; and the one resorting to
self-defense has a right to pursue and disable the aggressor. [PP v. Catbagan, 23 Feb.
2004]

h. Self-defense is incompatible with accident. [Aradillos & Galabo v. CA & PP, 15

January 2004]

SUFFICIENT PROVOCATION

It is argued that the mitigating circumstance of sufficient provocation or threat on

the part of the offended party immediately preceding the act should have been
appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or
improper conduct or act of the offended party, capable of exciting, inciting, or irritating
anyone.[Pepito v. Court of APPeals, 8 July 1999.]
The provocation must be sufficient and should immediately precede the act.
[People v. Pedro Pagal, (25 Oct. 1977)]
To be sufficient, it must be adequate to excite a person to commit the wrong,
which must accordingly be proportionate in gravity.[People v. Nabora, 22 Nov. 1941]
and it must immediately precede the act so much so that there is no interval between
the provocation by the offended party and the commission of the crime by the accused.
In the present case, the remarks of Lingan, which immediately preceded the act
of petitioner, constituted sufficient provocation.
In People v. Alberto Macaso,(30 June 1975) we appreciated this mitigating
circumstance in favor of the accused, a policeman, who shot a motorist after the latter
had repeatedly taunted him with defiant words. Hence, this mitigating circumstance
should be considered in favor of petitioner Navarro.

Page 27 of 125
 2. [DEFENSE OF RELATIVES] Anyone who acts in defense of the person or
rights of his spouse, ascendants, descendants, or legitimate, natural or adopted
brothers or sisters, or his relatives by affinity in the same degrees and those
consanguinity within the fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance are present, and the further
requisite, in case the provocation was given by the person attacked, that the one
making defense had no part therein.
ANNOTATIONS

a. ELEMENTS: (1) Unlawful aggression on the part of the victim;

(2) Reasonable necessity of the means employed to repel the
unlawful aggression; and
(3) In case the provocation was given by the person attacked, the
one making defense had no part therein. (and that the latter be not
induced by revenge, resentment, or other evil [Link])

b. However, in the case of PP v. Toring, et al. (26 Oct. 1990), the

Supreme Court did not give full credence to Toring’s claim of DEFENSE OF
RELATIVE despite its finding of the presence of unlawful aggression on the part
of the victim and the lack of provocation on the part of Toring. He was only
credited with the privileged mitigating circumstance of incomplete defense of
relative
The court ratiocinated in this wise, viz: Toring was motivated by revenge,
resentment, or evil motive because of a "running feud" between the families of
the victim and that of the appellant.
NOTE, that the court did not question the reasonableness of the means
employed, therefore, it is humbly submitted that the claim of Defense of Relative
should have been given full credence, because all the elements were attendant.
Note also, that the reason advanced by the court, viz: “was motivated by
revenge, resentment, or evil motive” should apply only in Defense of Strangers,
Art. 11 (3).
Toring, in a way, amended the third element of Art. 11(2) to read: “In
case the provocation was given by the person attacked, the one making defense
had no part therein and that the latter be not induced by revenge, resentment, or
other evil motive. ” This is the clear implication of Toring.

CASE: U.S. vs. Esmedia, October 21, 1910. --- Any person, who, in
defending his father against an unlawful attack, while he still honestly believes
him to be in great danger, causes the death of the attacking party, is exempt from
criminal responsibility.

3.[DEFENSE OF STRANGERS] Anyone, who acts in defense of the person or

rights of a stranger, provided that the first and second requisites mentioned in the first
circumstance of this Article are present and that the person defending be not induced by
revenge, resentment, or other evil motive. [PP v. Honorato Navarro, 3 Sept. 1998.
Moreover, to properly invoke the justifying circumstance of defense of strangers, the
person defending must not be induced by revenge, resentment or other evil motive (Art.
II, par. 3, Revised Penal Code)]

a. The rule then is that what one may do in his own defense, another may
do for him. In other words, persons acting in defense of others are in the same

Page 28 of 125
 condition and upon the same plane as those who act in defense of themselves.
[U. S. v. Sabino Aviado, April 1, 1918, En Banc]

b. APPRECIATED: Appellant heard the screams and cries for help of the
victim’s wife, and that of his wife. The appellant at once ran upstairs. He saw the
victim attacking his (victim’s) wife, with a dagger. The appellant, in the defense of
the woman struggled with the victim for the possession of the dagger, in the
course of which he wounded the latter. [PP v. SilvinoValdez, March 4, 1933] This
court stated in the case of U.S. vs. Batungbacal (10 Jan. 1918): "If, in order to
consider that a defendant acted in lawful defense, it is sufficient that he had well-
founded reasons to believe that, under the attendant circumstances, the means
employed by him to prevent or repel the aggression, was necessary, then the
defendant in this cause undoubtedly acted in lawful defense of Hilaria Tianko and
his two children." In that case the deceased was pursuing the said children with
bolo in hand and with his arm raised as if ready to strike with his weapon when
he was shot dead by the accused. We held that in view of the imminence of the
danger, the act of the defendant could be considered reasonably necessary to
repel or prevent the aggression because its object was "to render the aggressor
harmless".

In the instant case, considering the suddenness of the disturbance and the
startling and disturbing effect upon the appellant's mind which must have resulted
from hearing the screams of his wife calling for help; and coming, as he did
without previous knowledge, upon an armed man engaged in a murderous attack
in his own house in the presence of his wife, he might reasonably have assumed
that he had to deal with a desperate or possibly an insane person who had to be
rendered harmless.

c. Logic dictates that If the appellant is justified in personally killing the

victim in the course of such defense, a fortiori, he is justified in providing the
person, who is the subject of unlawful aggression, a weapon that the latter may
use in his own defense.

4. [STATE OF NECESSITY] Any person who, in order to avoid an evil or injury,

does act which causes damage to another [person or property], provided that the
following requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.

N.B. --- [a] There is civil liability here, but the same shall be borne by those
who benefited from the act.

a.1. ART. 859 [CODE OF COMMERCE]. The underwriters of the vessel,

of the freight, and of the cargo shall be obliged to pay for the indemnity of the
gross average in so far as is required of each one of these objects
respectively.(AGBAYANI – COMMERCIAL LAWS OF THE PHILS.)
a.2. Art. 101 [RPC]. Rules regarding civil liability in certain cases. — The
exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of
article 12 and in subdivision 4 of article 11 of this Code does not include

Page 29 of 125
 exemption from civil liability, which shall be enforced subject to the following
rules:
Second. In cases falling within subdivision 4 of Article 11, the
persons for whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit, which they may have received.
The courts shall determine, in sound discretion, the proportionate
amount for which each one shall be liable. xxx.

[b] There should be no negligence or fault on the part of the actor.

[c] Here, there is a clash between two unequal rights, the lesser gives way
to the greater.
[d] Applicable to General Average in maritime commerce [average
adjuster makes the determination of the loss, and the apportioning of the individual
share of those who benefited from the act.]
[e] For this reason, therapeutic abortion is allowed.
[f] It is not disputed that the ship was in grave peril and that the jettison of
part of the cargo was necessary. If the cargo was in peril to the extent of call for general
average, the ship must also have been in great danger, possibly sufficient to cause its
absolute loss. The jettison was therefore as much to the benefit of the underwriter as to
the owner of the cargo. The latter was compelled to contribute to the indemnity; why
should not the insurer be required to do likewise? If no jettison had taken place and if
the ship by reason thereof had foundered, the underwriter's loss would have been many
times as large as the contribution now demanded. [Jarque vs. Smith, Bell & Co.,
November 11, 1930]

5. Any person who acts in the FULFILLMENT OF A DUTY OR IN THE LAWFUL

EXERCISE OF A RIGHT OR OFFICE. [Regarding the second portion, see also
Defense of Property, supra.]

[a] REQUISITES ---(A)that the offender acted in the performance of a duty

or in the lawful exercise of a right or office; and (b) that the injury or offense
committed be the necessary consequence of the due performance of such duty
or the lawful exercise of such right or office. [[PP v. Pajenado, et al., 30 Jan.
1976]
PP v. Oanis, et al., 27 July 1943

ISSUE: What kind of force may a peace officer use in

making an arrest.
HELD: Although an officer in making a lawful arrest is
justified in using such force as is reasonably necessary to secure
and detain the offender, overcome his resistance, prevent his
escape, recapture him if he escapes, and protect himself from
bodily harm (People vs. Delima, 46 Phil., 738). yet he is never
justified in using unnecessary force or in treating him wanton
violence, or in resorting to dangerous means when the arrest
could be effected otherwise (6 C. J. S., par. 13, p. 012). The
doctrine is restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in making an
arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2,
par. 2). And a peace officer cannot claim exemption from criminal

Page 30 of 125
 liability if he uses unnecessary force or violence in making an
arrest. (5 C. J., p. 753; U. S. vs. Mendoza, 2 Phil., 109). It may be
true that Balagtas was a notorious criminal, a life-termer, a fugitive
from justice and a menace to the peace of the community but
these facts alone constitute no justification for killing him when, in
effecting his arrest, he offers no resistance, or in fact no
resistance can be offered, as when he is asleep. This, in effect, is
the principle laid down, although upon different facts, in United
States vs. Donoso (3 Phil., 234, 242).

Valcorza v. PP, 31 Oct. 1969

FACTS: The deceased was charged with a relatively minor

offense. He escaped from detention and when ordered to stop by
the petitioner peace officer he ran away and then threw himself
into a creek to elude his pursuer. After sometime he suddenly
emerged from bushes near which petitioner and a fellow
policeman were and assaulted the former twice with a stone and
then ran away again pursued by petitioner and his companion.
Petitioner fired five cautionary shots into the air and decided to
aim directly at the escaping detainee only when he had already
reasons to fear that the latter would be able to elude him and his
companions.
HELD: The act performed by petitioner was committed in
the performance of his official duty and was more or less
necessary to prevent the escaping prisoner from successfully
eluding the officers of the law.
To hold him guilty of homicide may have the effect of
demoralizing police officers discharging official functions identical
or similar to those in the performance of which petitioner was
engaged at the time he fired at the deceased, with the result that
thereafter we would have half-hearted and dispirited efforts on
their part to comply with such official duty.

[b] However, in the Bentres case, decided by the CA, 49 O.G.4919, the
appellant security guard was found criminally liable for shooting and killing the
thief who was fleeing with the stolen articles and who refused to stop, despite
four (4) warning shots fired by the said security guard. He was found to have
exceeded his duty when he fired the fifth shot that killed the thief. [See also page
25, the due process clause.]

6. Any person who acts in OBEDIENCE TO AN ORDER ISSUED BY A

SUPERIOR FOR SOME LAWFUL PURPOSE.
[a] REQUISITES: (1)an order must have been issued by a superior; (2)the
order must be for a lawful purpose; and (3) the means used by the subordinate in
carrying out such order must itself be lawful.[Tabuena vs. Hon. Sandiganbayan
and People, Feb. 17, 1997]
[b] Correlate with “Mistake of Facts.”

Page 31 of 125
 CASES

PP v. Margen, et al., March 30, 1950

Obedience to an order of a superior gives rise to exemption
from criminal liability only when the order is for some lawful
purpose (Art. 11, par. 6, Revised Penal Code). Sergeant Margen's
order to have the deceased tortured was not of that kind. The
deceased may have given offense. But that did not give the
sergeant the right to take the law in his own hands and have the
offender subjected to inhuman punishment. The order was illegal,
and appellant was not bound to obey it.

People of the Phil. vs. Beronilla, et al.

[GRN L-4445 February 28, 1955]

CRIMES COMMITTED UPON ORDERS OF SUPERIOR

OFFICERS; LACK OF CRIMINAL INTENT.-Where the accused
acted upon orders of superior officers that they, as military
subordinates, could not question, and obeyed in good faith,
without being aware of their illegality, without any fault or
negligence on their part, the act is not accompanied by criminal
intent. The maxim is, ACTUS NON FACIT REUM, NISI MENS SIT
REA --- a crime is not committed if the mind of the person
performing the act complained of be innocent. (U. S. vs. Catolico,
IS Phil., 507; People vs. Pacana, 47 Phil., 48; Sent. of the Tribunal
Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900;
21 Feb. 1921; 2.5 March 1929).

7. Battered Woman Syndrome --- refers to a scientifically defined pattern of

psychological and behavioral symptoms found in women living in battering relationship
as a result of cumulative abuse. [Sec. 3 (c), R.A. No. 9262.]

8. Section 26, R.A. No. 9262 --- BATTERED WOMAN SYNDROME AS A

DEFENSE --- Victim-survivors who are found by the courts to be suffering from battered
woman syndrome do not incur any criminal and civil liability notwithstanding the
absence of any of the elements for justifying circumstances of self-defense under the
Revised Penal Code.
In the determination of the state of mind of the woman who was suffering from
battered woman syndrome at the time of the commission of the crime, the court shall be
assisted by expert psychiatrists/psychologist.

Art. 12. Circumstances which exempt from criminal liability. — The

following are exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a

lucid interval.
When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement in one of the
hospitals or asylums established for persons thus afflicted, which he shall not be
permitted to leave without first obtaining the permission of the same court.

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2. [MINORITY] A person nine years of age and below. (See: R.A. 9344,
Juvenile Justice and Welfare Act of 2006 “RULE 29: Exemption from criminal
liability”)

3. [MINORITY] A person over nine years of age and under fifteen, unless he
has acted with discernment, in which case, such minor shall be proceeded
against in accordance with the provisions of Art. 80 of this Code [Now Articles
189 to 213 of P.D. No. 603, infra.]
When such minor is adjudged to be criminally irresponsible, the court, in
conformably with the provisions of this and the preceding paragraph, shall
commit him to the care and custody of his family who shall be charged with his
surveillance and education otherwise, he shall be committed to the care of some
institution or person mentioned in said Art. 80. [Now Articles 189 to 213 of P.D.
No. 603, infra.]
SEE LATEST: R. A. 9344, JUVENILE JUSTICE AND WELFARE ACT of
2006: (Amended by R.A. 10630, year 2013)
§6, R.A. 9344 --- Minimum Age of Criminal Responsibility. --- A child
fifteen (15) years of age or under at the time of the commission of the offense
shall be exempt from criminal liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.

Section 20, R.A. 9344

Children Below the Age of Criminal Responsibility. - If it has been

determined that the child taken into custody is fifteen (15) years old or below, the
authority which will have an initial contact with the child has the duty to
immediately release the child to the custody of his/her parents or guardian, or in
the absence thereof, the child's nearest relative. Said authority shall give notice
to the local social welfare and development officer who will determined the
appropriate programs in consultation with the child and to the person having
custody over the child. If the parents, guardians or nearest relatives cannot be
located, or if they refuse to take custody, the child may be released to any of the
following: a duly registered non-governmental or religious organization; a
Barangay official or a member of the Barangay Council for the Protection of
Children (BCPC); a local social welfare and development officer; or, when and
where appropriate, the DSWD. If the child referred to herein as been found by
the Local Social Welfare and Development Office to be abandoned, neglected or
abused by his parents, or in the event that the parents will not comply with the
prevention program, the proper petition for involuntary commitment shall be filed
by the DSWD or the Local Welfare and Development Office pursuant to
Presidential Decree No. 603, otherwise known as "The Child and Youth Welfare
Code".

A child above fifteen (15), but below eighteen (18) years of age shall
likewise be exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment. In which case, such child
shall be subjected to the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with existing
laws.

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 §5. Rights of the Child in Conflict with the Law. (R. A. 9344,
JUVENILE JUSTICE AND WELFARE ACT of 2006)--- Every child in conflict
with the law shall have the following rights, including, but not limited to:
(k) the right to have restrictions on his/her personal liberty limited to the
minimum, and where discretion is given by law to the judge to determine whether
to impose fine or imprisonment, the imposition of fine being preferred as the
more appropriate penalty;
(l) in general, the right to automatic suspension of sentence;
(m) the right to probation as an alternative to imprisonment, if qualified
under the Probation Law;
(n) the right to be free from liability for perjury, concealment or
misrepresentation.

N.B. --- The term “youthful offender” is no longer used. In its stead is the term
“Child in conflict with the law.”
The term DISCERNMENT means the capacity to distinguish right from
wrong and to perceive or recognize the consequences of his act.

4. [PURE ACCIDENT] Any person who, while performing a lawful act with
due care, causes an injury by mere accident without fault or intention of causing
it.

5. Any person who act under the COMPULSION OF IRRESISTIBLE

FORCE.

6. Any person who acts under the IMPULSE OF AN UNCONTROLLABLE

FEAR of an equal or greater injury.

7. Any person who fails to perform an act required by law, when prevented
by some lawful INSUPERABLE CAUSE. [This is a felony by omission, id est,
failing to perform a required act.]

ANNOTATIONS

(a) In addition to the seven above quoted, INSTIGATION and ABSOLUTORY

causes also exempt the actor from criminal liability.

(b) There is no civil liability in pure accident, Art. 12 (4) [Corpus, et al. vs. Paje, et
al., July 31, 1969] and insuperable cause.
b.1. Art. 101. Rules regarding civil liability in certain cases. — The
exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of
article 12 and in subdivision 4 of article 11 of this Code does not include
exemption from civil liability, which shall be enforced subject to the following
rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil
liability for acts committed by an imbecile or insane person, and by a person
under nine years of age, or by one over nine but under fifteen years of age, who
has acted without discernment, shall devolve upon those having such person
under their legal authority or control, unless it appears that there was no fault or
negligence on their part.

Page 34 of 125
 Should there be no person having such insane, imbecile or minor
under his authority, legal guardianship or control, or if such person be insolvent,
said insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.

(c) In the justifying circumstances, there is no crime and no criminal, but in

exempting circumstances, there is a crime, but no criminal.

(d) People vs. Nepomuceno, Jr. November 11, 1998

Accused-appellant cannot invoke the benevolent provisions of Paragraph 4,
Article 12 of the Revised Penal Code in order to be exempted from criminal liability
arising from the death of his wife, Grace Nepomuceno. Said provision pertinently states:
Art. 12. Circumstances which exempt from criminal liability. The following are
exempt from criminal liability:
xxx xxxxxx
4. Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it.
At all events, accident to be exempting, presupposes that the act done is lawful. Here,
however, the act of accused-appellant of drawing a weapon in the course of a quarrel,
the same not being in self-defense, is unlawful - it at least constitutes light threats
(Article 285, par. 1, Revised Penal Code). There is thus no room for the invocation of
accident as a ground for exemption (People vs. Reyta, Jr., 13 CAR (25) 1190;1195
[1968]).

d. IMBECILITY AND INSANITY --- the civil liability is VICARIOUS, i.e., liability
that arises from the act of another. This is exempting in all cases except where the
crime was committed during the actor’s lucid interval. The prosecution has the burden of
proving discernment, which is the mental capacity to fully appreciate the consequences
of one’s act or to determine the difference between right and wrong.
(a) Imbecility is absolutely exempting, while Insanity is conditional
because it is not exempting if the criminal act was committed during lucid interval.
(b) Mere mental aberration, eccentricity, mild psychosis, or schizophrenia
is not exempting except where during the commission of the crime, the accused was
totally without control of his will power. At most, those mental illnesses, which merely
diminishes the will power [Note: not total] of the accused, is only mitigating.
(c) Insanity, in order to be exempting the accused must be insane
immediately before the commission of the crime or during such commission.

People vs. Talavera

[July 19, 2001]

A man’s acts is presumed voluntary, for every person is

presumed to be of sound mind. It is based on the moral and legal
presumption that freedom and intelligence constitutes the normal
condition of a person. The presumption, however, may be
overthrown by factors such as insanity, which exempts a person
from criminal liability. Insanity exists when there is a complete
deprivation of intelligence in committing the act. Mere abnormality
of the mental faculties will not exclude imputability. The accused
must be so insane as to be incapable of entertaining a criminal
intent. He must be deprived of reason and act without least

Page 35 of 125
 discernment because there is a complete absence of the power
to discern or a total deprivation of freedom of the will. In
determining a defendant’s competency to stand trial, the test is
whether he has the capacity to comprehend his position, to
understand the nature and object of the proceedings against him,
to conduct his defense in a rational manner, and to cooperate,
communicate with, and assist his counsel to the end that any
available defense may be interposed.
Whenever the facts of the case show that a defendant’s
behavior when he committed the crime is such that it creates
doubt as to the voluntariness of his acts, the court should conduct
appropriate measures to determine the mental state of the
person. Our courts are designed not merely for purposes of
establishing the commission of a crime but also to ascertain
whether a “criminal mind” was responsible for its commission. This
is the rationale why our penal laws recognize certain
circumstances which exempt a person from criminal liability,
among which is insanity. Concomitant with this is the Estrada
insanity test laid down by the court in People v. Estrada, [June 19,
2000] which requires determination of two distinct matters:
(1) Whether the defendant is sufficiently coherent to
provide his counsel with information necessary or relevant to
constructing a defense; and
(2) Whether he is able to comprehend the significance of
the trial and his relation to it.
These matters help ascertain if a person comprehends the
state which he is in, particularly the relationship between the
defendant and his counsel and the defendant vis-à-vis the court
proceedings. The insanity tests should have been particularly
observed in cases where the supreme penalty of death may be
imposed upon the accused considering that man can never
restore life once taken. All protective measures must be exercised
so as not to wrongfully punish one who does not deserve it
regardless of how heinous the crime committed may be.

e. PURE ACCIDENT: ELEMENTS --- (a) performance of a lawful act; (b) with
due care; (c) causes inury to another by mere accident; and (d) without any fault or
intention of causing it. [People vs. Nepomuceno, Jr., November 11, 1998]
e.1. [Biagtan, et al. vs. Insular Life Assurance Co., LTD., March 29, 1972]
Accident was defined as that which happens by chance or fortuitously, without
intention or design, and which is unexpected, unusual and unforeseen, or that which
takes place without one's foresight or expectation - an event that proceeds from an
unknown cause, or is an unusual effect of a known cause, and therefore not expected
(29 Am. Jur. 706).

f. COMPULSION OF IRRESISTIBLE FORCE:

People vs. Joselito Del Rosario y Pascual, April 14, 1999

A person who acts under the compulsion of an irresistible

force, like one who acts under the impulse of an uncontrollable
fear of equal or greater injury, is exempt from criminal liability

Page 36 of 125
 because he does not act with freedom. Actus me invite factus
non est meus actus. An act done by me against my will is not my
act. The force contemplated must be so formidable as to reduce
the actor to a mere instrument who acts not only without will but
against his will. The duress, force, fear or intimidation must be
present, imminent and impending, and of such nature as to induce
a well-grounded apprehension of death or serious bodily harm if
the act be done. A threat of future injury is not enough. The
compulsion must be of such a character as to leave no opportunity
for the accused for escape or self-defense in equal combat.
[People v. Lorena, 9 July 1984]
As a rule, it is natural for people to be seized by fear when
threatened with weapons, even those less powerful than a gun,
such as knives and clubs. People will normally, usually and
probably do what an armed man asks them to do, nothing more,
nothing less. In the instant case, del Rosario was threatened with
a gun. He could not therefore be expected to flee nor risk his life
to help a stranger. A person under the same circumstances would
be more concerned with his personal welfare and security rather
than the safety of a person whom he met only for the first time that
day.

To be free of criminal culpability, a person invoking irresistible force or

uncontrollable fear must show that the force exerted was such that it reduced him to a
mere instrument acting not only without will but against his will as well. Compulsion
must be, of such character as to leave appellant no opportunity for self-defense in equal
combat or escape. [PP v. Tami, May 2, 1995]

g. IMPULSE OF UNCONTROLLABLE FEAR:

People vs. Fronda, May 14, 1993

Fear in order to be valid should be based on a real,

imminent or reasonable fear for one's life or limb (People vs.
Abanes, 28 Sept.1976)
In order that the circumstance of uncontrollable fear may
apply, it is necessary that the compulsion be of such a character
as to leave no opportunity to escape or self-defense in equal
combat. (People vs. Eustaquio Loreno, 9 July1984)

People vs. Daganon, et al. November 13, 1986

More recently, in the case of People v. Loreno (9 July

1984), this Court held that: " . . . The duress, force, fear or
intimidation 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."

Page 37 of 125
 People vs. Petenia, et al. August 12, 1986
EN BANC

For this exempting circumstance to be invoked

successfully, the following requisites must concur: (a) existence of
an uncontrollable fear; (b) the fear must be real and imminent; and
(c) the fear of an injury is greater than or at least equal to that
committed.

h. Compulsion of irresistible force is a physical force coming from a stranger.

While impulse of uncontrollable fear comes from within the person himself.

i. INSUPERABLE OR LAWFUL CAUSE [No civil liability. Insuperable ---

insurmountable; cannot be overcome. ]People v. Badian, Sept. 30, 1936: This
exempting circumstance implies knowledge of the precept of the law to be complied.
Failure to deliver a detention prisoner to the proper judicial authorities within the
prescribed reglementary period is exempting because of insuperable or lawful cause.

Medina vs. Orozco Jr. [December 22, 1966]

First to be considered is the charge of arbitrary detention.

Petitioner claims violation of Article 125 of the Revised Penal
Code.
xxx xxx xxx
However, stock should be taken of the fact that November
7 was a Sunday, November 8 was declared an official holiday;
and November 9 (election day) was also an official holiday. In
these three no-office days, it was not an easy matter for a fiscal to
look for his clerk and stenographer, draft the information and
search for the Judge to have him act thereon, and get the clerk of
court to open the courthouse, docket the case and have the order
of commitment prepared. Then, where to locate, and the certainty
of locating those officers and employees could very well
compound the fiscal's difficulties. These are considerations
sufficient enough to deter us from declaring that Arthur Medina
was arbitrarily detained. For, he was brought to court on the very
first office day following arrest. [U. S. vs. Vicentillo, 19 Phil, 118,
119 (March 18, 1911); Sayo, et al. vs. Chief of Police, et al., 80
Phil. 859, 870; Aquino, The Revised Penal Code, 1961 ed., Vol. II,
p. 820, citing People vs. Acacio, 60 Phil. 1030.]

j. INSTIGATION [absolutory] and ENTRAPMENT [not absolutory]:

People vs. Boco y Alejo et al. [June 23, 1999]

A buy-bust operation is a form of entrapment, which in

recent years has been accepted as a valid means of arresting
violators of the Dangerous Drugs Law. It is commonly employed
by police officers as an effective way of apprehending law
offenders in the act of committing a crime. In a buy-bust operation,
the idea to commit a crime originates from the offender, without
anybody inducing or prodding him to commit the offense. Its

Page 38 of 125
 opposite is instigation or inducement, wherein the police or its
agent lures the accused into committing the offense in order to
prosecute him. [People v. Doria, January 22, 1999]

k. ABSOLUTORY CAUSES: People v. Doria, January 22, 1999: Absolutory

causes are those causes where the act committed is a crime but for reasons of public
policy and sentiment there is no penalty imposed-Citing Reyes, Revised Penal Code,
Book I, PP. 231-232 [1993].

k.1. Art. 16 --- No accessories in light felonies; Art. 7 --- No punishment

imposed for light felonies unless consummated, except in crimes against person or
property; see also Art. 247 where the physical injuries inflicted is not serious; Art. 20; Art
124 last par. Arbitrary detention (confinement in a hospital of a person who is suffering
from violent insanity).; Art. 280 (3) Trespass to dwelling – for a lawful cause.
k.2. Also, spontaneous desistance before performing all acts of execution,
in certain cases. [Art. 6]
k.3. Art. 332 (RPC)---
Persons exempt from criminal liability. — No criminal, but only civil liability, shall
result from the commission of the crime of theft, swindling(Estafa) or malicious mischief
(A.T.M. : MET) committed or caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in the
same line.
2. The widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed into the possession of another;
and
3. Brothers and sisters and brothers-in-law and sisters-in- law, if living
together.
The exemption established by this article shall not be applicable to strangers
participating in the commission of the crime.

Chapter Three
CIRCUMSTANCES WHICH MITIGATE
CRIMINAL LIABILITY

ANNOTATIONS

1. There are two kinds, viz: Ordinary (OMC), and Privileged (PMC, Art. 69).
2. Distinction between the OMC and the PMC:
a. A generic aggravating circumstance (GAC) can offset an OMC, but not
a PMC; [People v. SPO1 Ulep, 20 Sept. 2000]
b. Nothing can offset a PMC;
c. An OMC lowers the penalty by a period only [see Art. 64, par. 5], but no
limit as there are OMCs proved. While a PMC lowers the penalty by one or two
degrees, as the case may be [Lacanilao v. Court of Appeals, No. L-34940, June 27,
1988, 162 SCRA 563. reiterated in Ulep, supra.];

d. Accused was over 9 but under 15 years old when he committed the
crime. Penalty was reduced by two degrees [PP v. Daliray, 26 Jan. 2004] See :R. A.
9344, JUVENILE JUSTICE AND WELFARE ACT of 2006 ; and
e. An OMC, even as provided for under Art. 64 (5), applies only to divisible
penalties (but see PP v. Marivic Genosa, 15 JAN. 2004). A PMC applies to both

Page 39 of 125
divisible and indivisible penalties. Two OMCs, sans GAC, partake of the nature of a
PMC.

3. Art 13(1) & (2) on MINORITY only [However, see R.A. 9344], but not senility,
are both PMCs. The rest are OMCs. Although the death sentence may not be imposed
upon a convict who is over seventy years old [Art. 47] or if imposed earlier, it is to be
suspended upon reaching the age of more than 70 [Art. 83].

4. The defense has the burden of proving the attendant circumstance of a

mitigating circumstance. (But see R.A. 9344, page 43)

5. Several mitigating circumstances that are based on the same fact or facts, are
to be treated as one. In the case of Pepito et al. vs. CA et al., July 8, 1999, the Hon.
Supreme Court said, viz: “The Court of Appeals likewise correctly disregarded the
mitigating circumstance of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation after it appreciated that of sufficient provocation
or threat on the part of the offended party immediately preceding the act. It is settled
that if these two mitigating circumstances are based on the same facts, the same
should be treated as one.”
EXAMPLE: A insulted B. The latter, because of the insult, killed A. It may appear
that the following OMCs were attendant, viz: (1) Immediate vindication of a grave
offense; (2) Sufficient provocation; (3) Passion and obfuscation.
Only one OMC will be appreciated because they all arose from the insult

6. ORDINARY MODIFYING CIRCUMSTANCES [OMCs & GACs] do not apply in

the following cases:
a. Where the penalty is single and indivisible.
b. Felonies through negligence (culpable felonies).
c. Where the Penalty is fine only.
d. Where the penalty is prescribed by special law. Except where the
special law provides for penalties similar to those in the RPC, e.g. (1) P.D. 1866, as
amended by R.A.8294 --- Section 3, “The penalty of prision mayor in its maximum
period to reclusion temporal and a fine of not less than fifty thousand pesos shall be
imposed upon any person who shall unlawfully manufacture, assemble, deal in , acquire
xxx ”; (2) R. A. No. 9262, Anti-Violence Against Women and Their Children --- Section 6
thereof, on penalties.

Art. 13. Mitigating circumstances. — The following are mitigating circumstances; [Note:
the first two are privileged mitigating circumstances and are covered under Art. 69.]

1. [INCOMPLETE JUSTIFYING AND EXEMPTING CIRCUMSTANCES]

those mentioned in the preceding chapter, when all the requisites necessary to
justify or to exempt from criminal liability in the respective cases are not
attendant. This is a PMC.

1.a. For this circumstance to be appreciated, a majority of the elements of

self-defense, including unlawful aggression, must be established. [PP v.
Catbagan, Feb. 23, 2004]

1.b. In People v. Bato, 15 Dec. 2000, the Hon. Supreme Court stated, viz:
”In the absence of unlawful aggression on the part of the victim, there can be no

Page 40 of 125
self-defense, complete or incomplete. [Citing People v. Deopante, [30 OCT.
1996] viz: “Equally well-known and well-understood by now are the requirements
in order for self-defense to be appreciated. The accused must prove that there
was unlawful aggression by the victim, that the means employed to prevent or
repel the unlawful aggression were reasonable, and that there was lack of
sufficient provocation on his part. And having admitted that he killed his nephew
Dante Deopante, "the burden of the evidence that he acted in self-defense was
shifted to the accused-appellant. It is hornbook doctrine that when self-defense is
invoked, the burden of evidence shifts to the appellant to show that the killing
was justified and that he incurred no criminal liability therefor. He must rely on the
strength of his own evidence and not on the weakness of the prosecution's
evidence, for, even if the latter were weak, it could not be disbelieved after his
open admission of responsibility for the killing. Hence, he must prove the
essential requisites of self-defense aforementioned.

In the case at bar, appellant failed to prove unlawful aggression by the victim,
hence, his claim of self-defense cannot be sustained. The self-serving and
unsupported allegation of appellant that he wrested the knife away from the
victim while they were struggling and rolling around on the ground (in the process
sustaining only a minor scratch on his little finger and abrasion on the right knee)
does not inspire belief, when contrasted with the positive and categorical
eyewitness accounts of Renato Molina and Manolo Angeles that appellant ran
after and stabbed the victim. The latter's testimonies are corroborated by the
number and extent of the stab wounds sustained by the victim.

People vs. Cabellon and Gaviola

[GRN 29221 August 8, 1928]
1. CRIMINAL LAW; HOMICIDE; DEFENSE OF A
RELATIVE.- Of the three elements required by the law for
exemption from criminal liability for the defense of a relative, only
one may be held to be present in the crime in question, and that
is, the unlawful aggression on the part of the deceased. And by
virtue of the provision of article 86 of the Penal Code, the penalty
to be imposed upon the appellant must be the penalty one degree
lower than that prescribed by law. (ALREADY OVERTURNED,
see below)

De Luna vs. CA June 2, 1995

[GRN 111484 June 2, 1995] (EN BANC)

“We did repeatedly say before that, whether complete or

incomplete, self-defense, by its very nature and essence, always
would require the attendance of unlawful aggression initiated by
the victim which must clearly be shown. [People v. Delgado, 182
SCRA 343; People v. Cañete, 175 SCRA 111; People v.
Agapinay, 186 SCRA 812; United States v. Carrero, 9 Phil. 544]
When unlawful aggression on the victim's part is alone
established, incomplete self-defense is so appreciated merely as
an ordinary mitigating circumstance under Article 13, paragraph
18 of the Code. When such unlawful aggression is coupled
with still another element of self-defense, incomplete self-

Page 41 of 125
 defense becomes a privileged mitigating circumstance, referred to
in Article 69, of the Revised Penal Code, that entitles the accused
to a reduction of the penalty imposed by law for the felony by one
or two degrees depending on the conditions and circumstances
therein obtaining.”
N.B. --- De Luna [decided En Banc] and Catbagan [decided
23 Feb. 2004] clearly overturned the ruling in Cabellon.

2. [MINORITY] that the offender is under eighteen years of age or

[SENILITY] over seventy years. In the case of the minor, he shall be proceeded
against in accordance with the provisions of Art. 80 [Art. 80 was already repealed
by P.D. 603, The Child and Youth Welfare Code of the Philippines, infra.]. This is
a PMC.
SEE LATEST: R. A. 9344, JUVENILE JUSTICE AND WELFARE ACT of
2006 (as amended by R.A. 10630, year 2013). The above discussion no longer
holds true. Presumption is on minority. It is now on the shoulder of the
prosecution to present sufficient evidence to rebut such presumption.

3. [PRAETER INTENTIONEM] that the offender had no intention to commit

so grave a wrong as that committed. Lack of intent to commit so grave a wrong,
is not applicable in culpa.

3.a. This does not apply to culpable felonies. In culpa, intent is not an
element. In its stead is either negligence (deficiency of action) or imprudence
(deficiency of perception). The intention of the offender at the moment that he
committed the crime, not the intention during the planning stage.

3.b. Intention is a mental process and is an internal state of mind. The

intention must be judged by the action, conduct, and external acts of the
accused. What men do is the best index of their intention..PP v. Regato, et
al., 31 January 1984]

4. That SUFFICIENT PROVOCATION or threat on the part of the offended

party immediately preceded the act.

4.a. Provocation is defined to be any unjust or improper conduct or act of

the offended party, capable of exciting, inciting, or irritating anyone. The
provocation must be sufficient and should immediately precede the act. To be
sufficient, it must be adequate to excite a person to commit the wrong, which
must accordingly be proportionate in gravity. And it must immediately precede
the act so much so that there is no interval between the provocation by the
offended party and the commission of the crime by the accused. [Navarro v. CA,
Aug. 26, 1999]

4.b. Provocation in order to be a mitigating circumstance must be

sufficient and immediately preceding the act. [People vs. Pagal, October 25,
1977.]

Page 42 of 125
 4.c. For provocation in order to be a mitigating circumstance must be
sufficient and immediately preceding the act. [PP v. Alconga & Bracamonte, April 30,
1947]
4.d. Immediate --- At once; no delay.
But in PP. v. Deguia, 20 April 1951 --- A confronted B and accused the latter of
stealing his jackfruits. B went home, looked for a weapon, returned and killed A.
Provocation was still appreciated.
5. That the act was committed in the IMMEDIATE VINDICATION OF A
GRAVE OFFENSE to the one committing the felony (delito), his spouse,
ascendants/descendants, or relatives by affinity within the same degrees.

5.a. Including legitimate, natural or adopted brothers or sisters.

5.b. First cousin is not included (4th degree).

5.c. The grave offense is something punishable or not punishable by law,

but that it caused the anger or resentment on the part of the accused. For
example: defamatory remarks; eloping with the daughter of the accused; or
calling someone a parasite. How to measure the effect of the act --- consider the
age, status, social standing, and other attendant circumstances, e.g. presence of
other people.

5.d. Immediate here means proximate. An interval of time between the

commission of the grave offense and the vindication may be allowed. [Slapping
engenders perturbation of the mind that may last even until the following day
when the killing was done]

6. That of having acted upon an impulse so powerful as naturally to have

produced PASSION OR OBFUSCATION.

6.a. Passion --- Outbreak of violent emotion, e.g., blinded by anger.

6.b. Obfuscation --- Blinded by anger. Sudden impulse of natural and

uncontrollable fury. [Loss of self-control]
6.c. This OMC must arise from lawful sentiments or legitimate feelings.

6.d. The following requisites must concur: (1) there should be an act both
unlawful [or unjust] and sufficient to produce such condition of mind; and (2) said
act which produced the obfuscation was not far removed from the commission of
the crime by a considerable length of time, during which the perpetrator might
recover his moral equanimity.

6.e. Equanimity --- composure; (makapamensar)

7. [VOLUNTARY SURRENDER and VOLUNTARY PLEA OF GUILTY] that

the offender had voluntarily surrendered himself to a person in authority or his
agents, or that he had voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.

7.a. To be appreciated as a mitigating circumstance, voluntary surrender

must be established by the concurrence of the following requisites: (a) the
offender had not actually been arrested; (b) the offender surrendered himself to a

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person in authority or to an agent of a person in authority; and (c) the surrender
was voluntary. [PP. v. Catbagan, 23 Feb. 2004; PP v. Belaje, 23 Nov. 2000;
People v. Sergio Amamangpang, (2 July 1998)]

7.b. A surrender, to be voluntary, must be spontaneous, showing the

intent of the accused to submit himself unconditionally to the authorities, either
because he acknowledges his guilt, or he wishes to save them the trouble and
expense necessarily incurred in his search and capture. Voluntary surrender
presupposes repentance. [PP v. Abolidor, 18 Feb. 2004]

7.c. Arrest is not synonymous with voluntary surrender. So that when

accused, after shooting the victim, was immediately disarmed and arrested, even
if he did not resist the arrest or deny his criminal act, voluntary surrender was not
appreciated. [PP v. Brecinio, 17 March 2004]

7.d. Requisites of voluntary plea of guilty or confession of guilt: (1) the

accused spontaneously confessed his guilt; (2) the confession was made in open
court, that is, before a competent court trying the case; (3) the confession was
made prior to the presentation of evidence by the prosecution. [PP. v. Juan (En
Banc), 14 Jan. 2004]

8. That the OFFENDER IS DEAF AND DUMB, BLIND or otherwise suffering

from some physical defect, which thus restricts his means of action, defense, or
communications with his fellow beings.

8.a. But, nocturnity is present since the accused purposely sought the
cover of darkness of the night in committing the crime. However, this aggravating
circumstance is offset by the mitigating circumstance that appellant suffers some
physical defect which thus restricts his means of action, defense, or
communication with his fellow beings, to wit: appellant's right hand is missing as
a consequence of an accident involving "kuwitis" which occurred on New Year's
eve of 1966. [PP v. Garillo, 2 Aug. 1978]

8.b. In the crime of Estafa, this circumstance was not appreciated because
his physical defect has no relationship to the crime committed. But in a case
where a deaf-mute was slandered and who cannot fight back with another
slander because he cannot talk, picked up a piece of wood and hit the victim, this
mitigating circumstance was appreciated.

9. Such ILLNESS OF THE OFFENDER AS WOULD DIMINISH THE

EXERCISE OF THE WILL POWER of the offender without however depriving
him of the consciousness of his acts.
9.a. Examples: (a) Schizophrenia [a psychosis “major mental disorder”
characterized by emotional, intellectual, and behavioral disturbance, such as
withdrawal from reality, delusions, and progressive deterioration.] (Webster’s); (b)
Acute neurosis [A functional nervous or emotional disorder marked by severe
anxiety or depression making the person ill-tempered and easily angered; (c)
Puerperal [Pertaining to child birth] fever; (d) Feeblemindedness [Weak
intellectually].
However, where there was complete deprivation of the power to control
the will the same shall be analogous to insanity and, therefore, exempting.

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 9.a. To be appreciated as a mitigating circumstance, after a plea of
insanity is rejected, the accused must be shown to have been suffering from a
chronic mental disease that affected his intelligence and willpower for quite a
number of years prior to the commission of the act he was being held for. [PP v.
Opuran, 17 March 2004]

10. And, finally, any other circumstances of a similar nature and analogous to
those above mentioned.

10.a. The following are considered analogous circumstances:

10.a.1. Extreme poverty = state of necessity;
10.a.2. Leading the police to the place where he buried the loot =
voluntary surrender;
10.a.3. Killing by the accused of the victim who several days prior
had manhandled him = sufficient provocation or passion and obfuscation;
10.a.4. Jealousy = passion or obfuscation;
10.a.5. Testifying for the prosecution without being discharged =
voluntary plea of guilty.
10.a.6. Prompt voluntary restitution of the property subject of
malversation or robbery/theft = voluntary surrender.
10.a.7. Although in senility, the age of the offender must be more
than 70 years old, but even if the age is only more than 60, but with failing
eyesight the same may be considered analogous to senility.

11. People vs. Bernal, et al., July 14, 1952: MITIGATING CIRCUMSTANCE OF
HAVING ACTED IN OBEDIENCE TO AN ORDER ISSUED BY A SUPERIOR.
[PMC] - Accused , having fired at the victim following his superior's order, which was
obviously illegal and unwarranted, is liable for the killing, although he is entitled to the
mitigating circumstance of having acted "in obedience to an order issued by a superior.”

Chapter Four
CIRCUMSTANCE WHICH AGGRAVATE
CRIMINAL LIABILITY

ANNOTATIONS

a. Must be proved as conclusively as the crime itself. [PP v. Alde, 29 May 1975]

b. Kinds of aggravating circumstances:

b.1. Generic – [Sometimes referred to as “aggravating circumstance”
only.] generally applies to all crimes, e.g. recidivism.
b.2. Specific – applies to a particular felony like disregard of sex, age, or
rank in crimes against persons; (Sometimes used as QUACs )
b.3. Qualifying – [Sometimes referred to as “qualifying circumstance”
only.] changes the nature and even the name of the felony, such as killing by means of
poison in murder. This is an ingredient of the felony; and
b.4. Inherent – part of the felony committed, such as dwelling in robbery
with force upon things. Must of necessity accompany the commission of the felony.

NOTE: The superstars are the GACs (including the SACs) and the QUACs

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 c. The Revised Rules on Criminal Procedure, made effective on 01 December
2000, requires aggravating circumstances, whether ordinary or qualifying, to be stated
in the complaint or information. Sections 8 and 9 of Rule 110 of the Rules of Court now
provide:

“Sec. 8. Designation of the offense. - The complaint or information shall

state the designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.

“Sec. 9. Cause of the accusations. - The acts or omissions complained

of as constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment.”

A court would thus be precluded from considering in its judgment the

attendance of “qualifying or aggravating circumstances” if the complaint or information is
bereft of any allegation of the presence of such circumstances. [PP v. Catubig, EN
BANC, August 23, 2001]

d. GACs and OMCs offset each other, but not QUACs because These are
ingredients of the felony and are included in its definition or provision of the law. An
OMC may offset a QUAC only when the latter partakes of the nature of a GAC, viz: (a)
Excess, like where there are two or more QUACs attendant in the killing; (b) In robbery
with homicide, treachery will only partake of he nature of a mere GAC.

e. No matter how many GACs are proved and appreciated, it will never increase
the penalty beyond the maximum provided by law. For example, the penalty for
homicide is Reclusion Temporal, no mention about the period --- meaning in its
medium. Thus, the penalty would be Reclusion Temporal medium. Even if there were,
say, four GACs proved and appreciated, the maximum of the penalty would not be
higher than Reclusion Temporal maximum. Unlike in OMCs were there is no limit,
because it is favorable to the accused.

f. Unlike in Art. 13 [Mitigating Circumstances], Art. 14 [Aggravating

Circumstances] does not admit of analogous cases. Art. 14 is exclusive [PP v.
Armando A. Regala, (5 April 2000)] [PP v. Torres, (EN BANC) March 16, 2004].
EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. Art. 14 lists down 21 aggravating
circumstances, but to that we can add the following, viz:
(1) Section 25, Art. II of R.A. 9165 (Comprehensive Dangerous Drugs
Act of 2002), which provides, viz: “Notwithstanding the provisions of any law to the
contrary, a positive finding for the use of dangerous drugs shall be a qualifying
aggravating circumstance in the commission of a crime by an offender, and the
application of the penalty provided for in the Revised Penal Code shall be applicable ;”
and
(2) Section 1, par. 3 of P.D. 1866, as amended by R.A. 8294, provides:
“If homicide or murder is committed with the use of an unlicensed firearm, such use of
an unlicensed firearm shall be considered as an aggravating circumstance.” [PP v.

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Badajos, Jan. 15, 2004; PP v. Allawan, Feb. 13, 2004] [See latest: Section 29 of RA
10591, July 23, 2012]

g. Art. 62. --- Effect of the attendance of mitigating or aggravating circumstances

and of habitual delinquency. — Mitigating or aggravating circumstances and
habitual delinquency shall be taken into account for the purpose of diminishing or
increasing the penalty in conformity with the following rules:
1. Aggravating circumstances, which in themselves constitute a crime
specially punishable by law or which are included by the law in defining a crime
and prescribing the penalty therefor shall not be taken into account for the
purpose of increasing the penalty.

h. The attendance of aggravating circumstances in the perpetration of the crime

serves to increase the penalty (the criminal liability aspect), as well as to justify
an award of exemplary or corrective damages (the civil liability aspect), moored
on the greater perversity of the offender manifested in the commission of the
felony such as may be shown by (1) the motivating power itself, (2) the place of
commission, (3) the means and ways employed, (4) the time, or (5) the
personal circumstances of the offender or the offended party or both. [PP v.
Catubig, August 23, 2001]

i. QUACs and GACs should be proved with the same quantum of evidence as
the crime itself.

Art. 14. Aggravating circumstances. — The following are aggravating

circumstances:

(1) That advantage is taken by the offender of his public position.

1.a. The offender must have intentionally availed of the influence or
reputation of his position in order to facilitate the commission of the crime. So
that where the accused police officer, because of passion and obfuscation and at
the spur of the moment, shot the victim using his government issued firearm, this
aggravating circumstance does not apply.
1.b. If the crime committed by the public official is inherent in his position,
this does not apply, e.g. malversation & bribery.
1.c. Article 62, par. 1(a). When in the commission of the crime, advantage
was taken by the offender of his public position, the penalty to be imposed shall
be in its maximum regardless of mitigating circumstances.

(2) That the crime be committed in contempt or with insult to the public
authorities.
2.a. The phrase “public authorities” should read as “persons in authority.”
2.b. Requisites: (a) the public authority is engaged in the discharge of his
duties; and (b) he is not the object of the crime being committed [PP v. Gutierrez,
8 Feb. 1999; People vs. Magdueño, September 22, 1986]; and the offender
knows of the identity of the person in authority.

(3) That the act be committed with insult or in disregard of the respect
due the offended party on account of his rank, age, or sex, or that it be

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committed in the dwelling of the offended party, if the latter has not given
provocation.
3.a. The term dwelling should not be equated with domicile (Home – when
away, there is always the intend to return.
3.b. The first portion [SAR] is only applicable in crimes against persons,
security, or honor. Disregard of age, sex or rank is not aggravating in robbery
with homicide, which is primarily a crime against property, as the homicide is
regarded as merely incidental to the robbery. [PP. v. Montinola, July 9, 2001]
3.c. If all are attendant in the commission of the crime --- considered as
one only.
But in the case of PP v. Daos, 27 April 1934; PP v. Puesca, 05 Dec.
1978, the Supreme Court stated that “When their elements are distinctly
perceived and can subsist independently, revealing a greater degree of
perversity.” They are to be considered independently.
3.d. Offender must deliberately and intentionally offend or insult the sex or
age of the offended party. So that in a crime where the circumstance of sex is
inherent, e.g., rape, seduction, acts lasciviousness, or parricide disregard of sex
does not apply.
3.e. The term rank refers to a high position in social life or in the
government service, e.g. teacher, priest, judge, consul, ambassador, or regional
directors of government agencies. The offender must have knowledge of the
identity of the victim.
3.d. Assault should not be while the public officer [person in authority or
his agent] was in the act of discharging his function or that it should not be
committed by reason of such performance. Otherwise, the crime is Direct
Assaults.
PERSONS IN AUTHORITY
(not limited to the following enumeration)
a. Chief Executive --- Guillen, 85 Phil. 307
b. Mayors --- Imson, 80 Phil. 285; Gumban, 39 Phil. 76; Dirain, 9 Phil. 162.
c. Judges --- Prudencio Garcia, 20 Phil. 358; Montiel, 9 Phil. 162; Torrecarion,
CA 52 O.G. 7644.
d. Brgy. Chairman, Kagawad, members of the LupongTagapamayapa --- Section
388, LGC of 1991 (R.A. 7160).
e. Governor --- Baluyot, 40 Phil. 385; Dano, 87 Phil. 588.
f. Provincial Treasurer --- Gerardo Ramos, 57 Phil. 462.
g. Director of Posts --- Acierto, 57 Phil. 614.
h. Division Superintendent of Schools --- Benitez, 63 Phil. 671.
i. School teacher --- Rosa de Guzman, CA 46 O.G. 3177, Commonwealth Act
578.
j. Election inspector --- Villanueva vs. Ortiz, 108 Pil. 1349; Marapao, 85 Phil. 832.
k. Chief of Police --- PP v. PO3 Feliciano, 24 Sept. 2001

AGENTS OF A PIA
(not limited to the following enumeration)
a. BIR agent --- Dosal, 92 Phil. 877.
b. Postmaster, Municipal Treasurer, Sanitary Inspector.
c. Chief of Provincial Hospital.
d. Postal Clerk

3.f. Disregard of respect due to sex and age may be included in treachery.

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 3.g. The killing of a 6-year old child by an adult person is treacherous.
(People vs. Sancholes, [18 April 1997]. N.B. Disregard of age is absorbed.
3.h. Dwelling is aggravating even if the accused did not enter the house,
but he shot the victim from outside the house; or that the commission of the
crime was started from inside the dwelling and was concluded outside of the
dwelling. This is appreciated in adultery where the adulterous act was committed
inside the conjugal dwelling and that the paramour resides elsewhere.
3.i. But calling the deceased down from his house and killing him in the
immediate vicinity thereof is not the commission of the crime in the dwelling of
the murdered person unless it appears that the place is so connected with the
house as to form an integral part thereof. [U.S. vs. J. RAMOS ET AL. ,April 1,
1902.] Especially if there exists a means of communication (passage) between
that place and the house.
3.j. Case:
People vs. Perreras, July 31, 2001 (EN BANC)

Dwelling aggravates a felony where the crime was committed in the

dwelling of the offended party if the latter has not given provocation or if
the victim was killed inside his house. Dwelling is considered aggravating
primarily because of the sanctity of privacy the law accords to human
abode. He who goes to another's house to hurt him or do him wrong is
guiltier than he who offends him elsewhere.
Although accused-appellant was outside of the house when he
fired, the victim was inside his house. For the circumstance of dwelling to
be considered, it is not necessary that the accused should have actually
entered the dwelling of the victim to commit the offense; it is enough that
the victim was attacked inside his own house, although the assailant might
have devised means to perpetrate the assault from the outside.

3.k. The staircase is an integral part of dwelling.

3.l. Not appreciated in Robbery with force upon things. Considered
inherent.
3.m. Dwelling is aggravating in robbery with violence or intimidation
because this class of robbery can be committed without the necessity of
trespassing the sanctity of the offended party's house. [PP v. Cabato, April 15,
1988] Appreciated in robbery with homicide in the case of PP v. Antonio Reyes,
decided En Banc, 13 April 2004.
3.n. PP v. Amado Daniel, 20 Nov. 1978: The term “dwelling” includes a room in a
boarding house. It is not necessary that the victim owns the place where he stays or
dwells.[ Although Margarita was merely renting a bed space in a boarding house, her
room constituted for all intents and purposes a "dwelling" as the term is used in Article
14(3), Revised Penal Code. It is not necessary, under the law, that the victim owns the
place where he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the place is
his home the sanctity of which the law seeks to protect and uphold.]
3.o. PP v. Alcala, 29 Dec. 1922: “Dwelling” includes dependencies,
staircase, and enclosures under the house.

(4) That the act be committed with abuse of confidence or obvious

ungratefulness.
4.a. It is also essential that the confidence between the parties must be
immediate and personal such as would give that accused some advantage or

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make it easier for him to commit the crime. That such confidence was a means of
facilitating the commission of the crime, the culprit taking advantage of the
offended party's belief that the former would not abuse said confidence. [PP v.
Mandolado, et al. 28 June 1983]
4.b. Requisites: (a) the offenderd party has trusted the offender and the
latter abused such trust; (b) that such abuse of confidence facilitated the
commission of the felony.
4.c. APPRECIATED: (a) Houseboy for several years, killing her master
inside the latter’s bedroom where the offender was always allowed access in
order to clean it; (b) Accused was accommodated to live with the family of the
complainant whom he raped [PP v. Cabresos, May 26, 1995]; (c) Host killed in
his own house by his guest. [People vs. Ponciano, December 5, 1991]; (d) When
the killer of the child is the domestic servant of the family and was sometimes the
deceased child's amah, the aggravating circumstance of grave abuse of
confidence is present. [PP v. Lora, March 30, 1982]
4.d. NOT APPRECIATED: (a) Victim and assailant had just met each
other when the murder was committed; (b) Inasmuch as the relation of trust and
confidence that exists in this case is between the accused-appellant and the
father of the deceased, and that the deceased was then residing apart from his
father as he was working in Zamboanga City, there is no immediate and personal
relationship between accused-appellant and the deceased. [PP v. Comendador,
Sept. 18, 1980];

(5) That the crime be committed in the palace of the Chief Executive or
in his presence or where public authorities are engaged in the discharge of
their duties or in a place dedicated to religious worship.
5.a. The offender must have purposely sought the place in order to
commit the crime. A contrario, if the crime was casually committed in such place,
this GAC is not applicable.
5.b. The aggravating circumstance that the killing was done in a place
dedicated to religious worship, cannot be legally considered, where there is no
evidence to show that the accused had murder in her heart when she entered the
chapel that fatal night. [PP v. Jaurigue, 21 Feb. 1946]
5.c. The trial court also erred in appreciating the aggravating circumstance
that the commission of the crime was in contempt of or with assault to public
authorities. The REQUISITES of this circumstance are: (1) the public authority is
engaged in the discharge of his duties and (2) he is not the person against whom
the crime is committed. None of these circumstances are present in this case. In
the first place, the crime was committed against the barangay chairman himself.
At the time that he was killed, he was not engaged in the discharge of his duties
as he was in fact playing a card game with his neighbors.
5.d. However, the aggravating circumstance of commission of a crime in a
place where the public authorities are engaged in the discharge of their duties
should be appreciated against petitioner Navarro. The offense in this case was
committed right in the police station where policemen were discharging their
public functions. [Navarro v. CA, et al., Aug. 26, 1999, citing PP v. Regala, 113
SCRA 613 (1982)]

(6) That the crime be committed in the nighttime, or in an uninhabited

place, or by a band, whenever such circumstances may facilitate the
commission of the offense.

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 Whenever more than three armed malefactors shall have acted together in
the commission of an offense, it shall be deemed to have been committed by a
band.
6.a. Generally, if all these aggravating circumstances concur in the
commission of the crime, all will constitute one aggravating circumstance only.
However, these can be considered separately if their elements are distinctly
perceived and can subsist independently. [PP v. Santos, 91 Phil. 320, May 21,
1952; PP v. Daos, 27 April 1934; PP v. Puesca, 05 Dec. 1978]
6.b. Nocturnity is an aggravating circumstance when it is deliberately
sought to prevent the accused from being recognized or [taken advantage,
supplied.] to ensure his unmolested escape. There must be proof that this was
intentionally sought to insure the commission of the crime and [Should be or] that
appellants took advantage thereof. In the instant case, there is paucity (dearth) of
evidence that the peculiar advantage of nighttime was purposely and deliberately
sought by the accused, "the fact that the offense was committed at night will not
suffice to sustain nocturnity." [PP vs. Fortich, Nov.13, 1997]
6.c. By itself, Nocturnity is a GAC. If Nocturnity is sought as a means,
mode, or form to insure the execution of the crime, it will be absorbed by
treachery [crime against person], a QUAC.
6.d. Nighttime is from sunset to sunrise. [PP v. Lao, Dec. 9, 1999]
6.e. Nighttime is out of the question where it has no influence in the
commission of the crime, such as malversation, bribery, libel, bigamy, or
falsification .
6.f. The ELEMENTS of nocturnity as an aggravating circumstance are: (a)
when it facilitated the commission of the crime; or (b) when especially sought by
the offender to insure the commission of the crime or for the purpose of impunity,
or (c) when the offender took advantage thereof also for purposes of impunity.
There are two tests for nocturnity as an aggravating circumstance:
(a) The objective test, under which nocturnity is aggravating
because it facilitates the commission of the offense; and
(b) The subjective test, under which nocturnity is aggravating
because it was purposely sought by the offender. These two tests should be
applied in the alternative. [PP v. Lomerio, Feb. 28, 2000]
6.g. The uninhabitedness of a place is determined not by the distance of
the nearest house to the scene of the crime, but whether or not in the place of
commission, there was reasonable possibility of the victim receiving some help.
[PP v. Damaso, 20 May 1978] It must be purposely sought, chosen, or taken
advantage to facilitate the commission of the crime. In PP v. Egot, June 25,
1984, the Supreme Court stated, thus: “A place where there are no people or any
number of houses within a perimeter of less than 200 meters is uninhabited.” “A
distance of 200 yards to the nearest house is sufficient to make the scene of the
crime uninhabited.”
6.h. Uninhabited cannot be appreciated if it there was no showing that the
accused purposely sought it (subjective test) or took advantage of it to commit
the crime without any interference and that he might better attain his purpose
(objective test).
6.i. Band – at least four persons that are armed with means of violence;
more than three armed malefactors with the common intention of committing a
crime. The manner or degree of participation is immaterial provided the acts are
all geared towards the attainment of a common design, and provided further that
they all directly participated in its commission. If less than four directly

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 participated, and the other was left in the hideout because he was the
mastermind --- no band. If during trial, only three were convicted and the others
were acquitted then there is no band.
This is inherent in brigandage. In the crime of rape, it is inherent under the
first paragraph of Art. 266-A [[Whenever the rape was committed with the use of
a deadly weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.]
APPRECIATED: (1) as GAC in Robbery with homicide, 1st par. Art. 294,
PP v. Pedroso, EN BANC, 30 July 1982. Note, this case effectively overturned
Ombao (2) as GAC in Robbery with homicide; Robbery with rape, intentional
mutilation, or with phy. inj. resulting in insanity, impotency, or blindness, PP v.
Puesca, EN BANC, Dec. 5, 1978.
NOT APPRECIATED:(1) PP. v. Ombao, ist Div., Feb. 26, 1981.
Overturned by Pedroso, supra.

ERNESTO GARCES, Petitioner,

versus
PP, Respondent., G.R. No. 173858, 2007 Jul 17, 3rd Division

We also note that the trial court failed to make any definitive finding as to the
existence of aggravating circumstances. However, we find that the aggravating
circumstances of nighttime and uninhabited place did not attend the commission of
the crime.

Nocturnity is aggravating when it is deliberately sought to prevent the accused

from being recognized or to ensure his unmolested escape. The mere fact that the rape
was committed at nighttime does not make nocturnity an aggravating circumstance. In
the instant case, other than the fact that the crime was committed at night, there is no
other evidence that the peculiar advantage of nighttime was purposely and deliberately
sought by the accused.

The aggravating circumstance of uninhabited place cannot likewise be

appreciated in the absence of evidence that the accused actually sought an isolated
place to better execute their purpose. The records do not show that solitude was
purposely sought or taken advantage of to facilitate the commission of the crime.

6.j. A crime is committed by a band whenever more than three (3) armed
malefactors shall have acted together in the commission of an offense. As GAC
only. [PP v. Lee, et al., Dec. 20, 1991]
6.k. Absorbed by “abuse of superior strength.” They have the same
essence
6.l. Where band is appreciated, the same may also apply to the principal
by inducement. (PP v. Ilane, 31 May 1938)

(7) That the crime be committed on the occasion of a conflagration,

shipwreck, earthquake, epidemic or other calamity or misfortune.
7.a. This operates as a QUAC in crimes against persons (Art. 248
murder), also in theft (Art. 310)

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 7.b. Other calamity: eruption of a volcano, destructive cyclone, or other
public calamity.
7.c. The development of engine trouble at sea is a misfortune, but it does
not come within the context of the phrase "other calamity or misfortune" as used in
Article 14, paragraph 7 of the Revised Penal Code, which refer to other conditions of
distress similar to those previously enumerated therein, namely, "conflagration,
shipwreck, earthquake, epidemic, "such as the chaotic conditions resulting from war or
the liberation of the Philippines during the last World War. The reason for the provision
of this aggravating circumstance "is found in the debased form of criminality met in one
who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their
suffering by taking advantage of their misfortune to despoil them."[People vs. Arpa, et
al., April 25, 1969]

7.d. Contra-distinguish with par. 12 where the fire, inundation, or explosion

is used as a means in committing the crime.
(8) That the crime be committed with the aid of armed men or persons
who insure or afford impunity.
8.a. The aggravating circumstances of abuse of superior strength and aid
of armed men are absorbed in treachery. [PP v. Hijapon, July 10, 2001]
8.b. NOT APPRECIATED: Because the appellant as well as those who
cooperated with him in the commission of the crimes in question acted under the
same plan and for the same purpose. [PP v. Abrera, Dec. 12, 1997] Meaning,
they were in conspiracy. [PP v. Umbrero, et al., May 8, 1991]
8.c. The armed men must take part in the commission of the crime,
directly or indirectly, but must not act under the same plan and for the same
purpose, otherwise conspiracy will set in, or that if there were at least four of
them, then it will be absorbed by Band. See abuse of superior strength (par. 15).

(9) That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one crime, shall have
been previously convicted by final judgment of another crime embraced in the
same title of this Code (Revised Penal Code).
9.a. The term final judgment should be read as “final and executory
judgment.”
9.b. First conviction must be for the first felony, and the second conviction,
for the second felony that was committed after the first felony.
9.c. Note that there is no mention as to the lapse of time between the
commission and conviction of the first felony and that of the second one. The
clear inference is that recidivism is imprescriptible.
9.d. Contra distinguish with Art. 62 on HABITUAL DELINQUENCY.
(FLERTS) Falsification, LSPI, Estafa, Robbery, Theft. Serious P.I.
9.e. An offender may be a recidivist and a habitual delinquent if he was
convicted for the third time of a felony that is embraced within the same title as
that of either the first and second felony, but limited to FLERTS only, within ten
years from the date of his release or last conviction, whichever applies.
9.f. Not a requirement that the accused shall have served out his sentence
for the previous felony or felonies. What is required is just a final and executory
conviction.

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 (10) [REITERACION or HABITUALITY] That the offender has been previously
punished by an offense to which the law attaches an equal or greater penalty or
for two or more crimes to which it attaches a lighter penalty.
10.a. The accused shall have served out his sentence for the prior felony
or felonies.
10.b. The court has the discretion of whether or not to consider it in the
imposition of the penalty. This is unlike in recidivism where its presence is always
considered in the imposition of the penalty.

(11) That the crime be committed in consideration of a price, reward, or

promise.
11.a. QUAC in crimes against persons.
11.b. Applies to both the giver and the receiver.
11.c. The price, reward, or promise must be the primary consideration why
the actual perpetrator [principal by direct participation] committed the felony. This
does not apply in a case where with or without it the principal by direct
participation would nevertheless commit the crime.
11.d. The inducement must be made directly with the intention of
procuring the commission of the crime and that such inducement must be the
determining cause of the crime. [PP v. Agapinay, June 27, 1990] See also
“principal by inducement.”
11.e. If the manner of execution was not agreed upon and was left to the
discretion of the hitman, all other GACs and QUACs that were attendant to its
commission will only affect the hitman and not the inducer.

(12) That the crime be committed by means of inundation, fire, poison,

explosion, stranding of a vessel or international damage thereto,
derailment of a locomotive, or by the use of any other artifice involving
great waste and ruin.
12.a. QUAC in crimes against persons.
12.b. If a building is burned in order to kill the occupant, the crime is
“Destructive Arson” and that the fact of the injury or death must be alleged. The
mandatory penalty is death (R.A. 9346 prohibits the imposition of the Death
Penalty in the Philippines ). Art. 320 as amended by P.D. 1744 (amending the
law on Arson) and R.A. 7659. This is no longer considered murder.

(13) That the act be committed with EVIDENT PREMEDITATION.

13.a. Cool and serene reflection as to the consequences of his act.
13.b. Can be satisfactorily established only if it could be proved that the
defendant had ample and sufficient time to allow his conscience to overcome the
determination of his will, if he had so desired, after meditation and reflection,
following his plan to commit the crime. [PP. v. Montejo, Nov. 21, 1988]
13.c. Does not apply or not appreciated where there was mistake of
identity [error en personae]. (PP. Romeo Barros, June 27, 1995)
13.d. Inherent in crimes against property. (U. S. vs. Hermosilla, 11 Sept.
1915: In the commission of the crime there are no extenuating nor aggravating
circumstances to be considered, not even that of premeditation, for, as a general rule, in
crimes against property such as, among others, those of robbery, theft, and estafa, the
perpetrator thereof resolves to perform the preconceived act only after having carefully
thought out the method by which he intends to accomplish it. Premeditation, therefore,

Page 54 of 125
is a circumstance ordinarily inherent in the commission of such crimes.)(PP v. Silverio
Daos, Apr. 27, 1934) May be considered in robbery with homicide if there was evident
premeditation to kill in addition to the robbery.
13.e. In order to be appreciated, there must be proof of planning and
preparation to commit the felony. [PP v. Clariño, July 31, 2001]
13.f. Elements: (a) the time when the accused determined to commit the
crime, (b) an act manifestly indicating that the accused clung to that
determination, and (c) a lapse of time between the determination and the
execution sufficient to allow the accused to reflect upon the consequences of the
act. [PP v. Cortes, July 11, 2001]
13.g. The essence of premeditation is that the execution of the act was
preceded by cool thought and reflection upon the resolution to carry out the
criminal intent during a space of time sufficient to arrive at a calm judgment. [PP
v. PO3 Tan, et al., June 21, 2001]
13.h. To be considered, it is indispensable to show how and when the plan
to kill was hatched or how much time had elapsed before it was carried out.
Premeditation must be based on external acts which must be notorious,
manifest, and evident – not merely suspecting – indicating deliberate planning.
[PO3 Tan, et al., supra]
13.i. Not appreciated where the felony was committed at the spur of the
moment or heat of anger. Except where there was sufficient lapse of time
between the determination and the execution. [Moises Capalac, Oct. 23, 1982]

(14) That craft, fraud, or disguise be employed.

14.a. Craft, fraud or disguise is a specie (identical in form)) of aggravating
circumstance that denotes intellectual trickery or cunning resorted to by an
accused to aid in the execution of his criminal design or to lure the victim into a
trap and to conceal the identity of the accused. [PP v. Quiñola, May 5, 1999]
14.b. Sometimes considered as QUAC because deemed treacherous, and
therefore, absorbed in treachery.
14.c. These are separate aggravating circumstances.
14.d. CRAFT is chicanery [Intellectual trickery, by quibbling (to evade the
point in question; an evasion; a trivial point of disagreement) or sophistry
(fallacious reasoning), used to misled, trick, or delude (New Webster’s
Dictionary)], resorted to by the accused to aid in the execution of his criminal
design; it is employed as a scheme in the execution of the crime. [PP v. Zea, et
al., June 29, 1984]
14.e. Craft, appreciated as GAC. The accused and his cohorts pretended
to be bona fide passengers of the jeep in order not to arouse suspicion.
However, once inside the jeep, they robbed the driver and the other passengers.
[PP v. Lee, Dec. 20, 1991] In PP v. Silverio Daos, Apr. 27, 1934, co-existed with
treachery because they boarded the car, pretending to be bonafide passengers
then assaulted the victim from behind.
14.f. FRAUD is a false representation of a matter of fact, whether by
words or by conduct, by false or misleading allegations, or by concealment of
that which should have been disclosed, which deceives and is intended to
deceive another. (Black’s Law Dictionary)
14.g. The Court considered DISGUISE as an aggravating circumstance
where the accused, wore masks to cover their faces in order to conceal their
identities. The fact that the mask subsequently fell down thus paving the way for

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 the accused's identification is immaterial. [PP v. Cabato, April 18, 1988; citing
People v. Veloso, Feb. 25, 1982]

(15) [ABUSE OF SUPERIOR STRENGTH] (a) That advantage is taken of

superior strength, or (b) MEANS IS EMPLOYED TO WEAKEN THE DEFENSE.
15.a. ABUSE OF SUPERIOR STRENGTH and AID OF ARMED MEN,
when present with TREACHERY are absorbed or included in the latter. [PP v.
Ferrera, June 18, 1987]
15.b. The mere fact that there were two aggressors cannot constitute per
se abuse of superior strength in the absence of evidence in the record of the
relative physical strength of the aggressors and the assaulted party. To take
advantage of superior strength means to purposely use excessive force out of
proportion to the means of defense available to the person attacked. Guns were
used to commit the crime. Each of the two defendants had a gun. It was not,
therefore, necessary for them to take advantage of superior strength to
accomplish their purpose of killing the victim. [PP v. Talay, Nov. 28, 1980]
15.c. Superior strength is attendant in the commission of a crime where
the accused acted in concert to secure advantage in their superiority in number.
[PP v. Rodico, Oct. 16, 1995]
15.d. Superior strength should be appreciated because of the marked
difference of physical strength between the offended parties and the offender. PP
v. Gatcho, Feb. 26, 1981]
15. e. Abuse of superior strength requires, at base, a deliberate intent on
the part of the malefactor to take advantage thereof. Besides the inequality of
comparative force between the victim and the aggressor, there must be a
situation of strength notoriously selected and made use of by the offender in the
commission of the crime. In this case, there were four (4) malefactors including
accused-appellant who was armed with a bladed weapon when they attacked
and ganged up on the unarmed victim. It need not be overemphasized that there
was a blatant inequality of strength between the victim and his assailants. [PP v.
Ortiz, July 7, 2001]
15.f. MEANS BE EMPLOYED TO WEAKEN THE DEFENSE:
a. This is a QUAC, but considered inherent in the crime of rape.
b. Appreciated where the victim was made to drink intoxicating
liquor in order to facilitate the commission of the murder. [PP v. Ducusin,
August 8, 1929]

(16) That the act be committed with TREACHERY (alevosia).

There is treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof, which
tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make.
16.a. There is treachery when the offender commits any of the crimes
against person, employing means, methods, or forms in the execution thereof,
which tend to directly and specially insure the execution of the crime, without risk
to himself arising from the defense which the offended party might make. [PP v.
Opuran, March 17, 2004]
16.b. Treachery absorbs abuse of superior strength. [PP. v. Vera, Aug. 18, 1999].
The circumstance of abuse of superior strength is inherent in treachery [People vs.
Reneja, Feb. 26, 1988]

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 16.c. The essence of treachery is the sudden and unexpected attack by
an aggressor on an unsuspecting victim, depriving the latter of any real chance to
defend himself, thereby, ensuring its commission without risk to the aggressor,
without the slightest provocation on the part of the victim. PP v. Macuha, July 16,
1999]
16.d. To appreciate treachery, two conditions must be present, to wit: (1)
the employment of means of execution that give the person attacked no
opportunity to defend himself or to retaliate and (2) the means of execution were
deliberately or consciously adopted. [PP v. Panida, et al., July 6, 1999; PP v.
Flores, EN BANC, Feb. 5, 2004]
16.e. APPRECIATED:
a. When the victim was sleeping or had just awakened when killed.
[PP v. Abolidor, Feb. 18, 2004]
b. The victim was only seven (7) years old. [PP v. Daliray, Jan. 26,
2004 (Note: killing a child of tender age is treacherous. Treachery is indisputably
presumed. [PP v. Caritativo, April 1, 1996] The killing of a 6-year old child by an
adult person is treacherous. (People vs. Sancholes, 18 April 1997): Victim is
Rodrigo O. Cabual, a 12 year-old boy. N.B. Disregard of age is absorbed.

c. Where the assailants suddenly barged in and immediately went

on a shooting rampage. [PP. v. Cachola, EN BANC, Jan. 21, 2004]
d. Where the victim, a prisoner, was killed by a police officer, while
the former was inside the prison cell. The culprit manhandled the victim and
suddenly shot him. [PP v. Brecinio, March 17, 2004]
16.f. Treachery may co-exist with evident premeditation. In robbery with
homicide, alevosia is to be regarded as a generic aggravating circumstance only.
[PP v. Salvatierra, 257 SCRA 489]
16.g. Even if treachery becomes evident at a subsequent stage, if it was
not so at the start and the attack was continuous, it cannot be considered in the
judgment. [PP v. Leal, June 29, 2001] Except where there was an efficient
break or interruption in the attack. Treachery must be present at the inception of
the attack. [Leal, supra.]
16.h. No treachery if the attack was committed at the spur of the moment,
or while the offender was being overwhelmed by passion and obfuscation,
because then there requisite that it was purposely sought would be absent.

(17) That means is employed or circumstances brought about which add

IGNOMINY to the natural effects of the act.
17.a. Ignominy is a circumstance pertaining to the moral order, which adds
disgrace and obloquy (ob-lo-kwee) to the material injury caused by the crime.
[PP. v. Ralph Velez Diaz, Dec. 8, 1999]
17.b. This aggravating circumstance requires that the offense be
committed in a manner that tends to make its effects more humiliating to the
victim, that is, add to his moral suffering. The ignominious act must be committed
while the victim was still alive. [PP. Carmina, Jan. 28, 1991] That its
commission was purposely sought by the actor or that he deliberately employed
means to add ignominy to the natural effects of the crime
17.c. Where the victim was already dead when his body was or a part
thereof was dismembered, ignominy cannot be taken against the accused. [PP v.
Cachola, (EN BANC), Jan. 21, 2004]

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 17.d. It has been held that where the accused in committing the rape,
used not only the missionary position, i.e. male superior, female inferior but also
the dog position as dogs do, i.e. entry from behind, the aggravating circumstance
of ignominy attended the commission thereof. [PP v. Siao, March 3, 2000; PP v.
Lao, Dec. 9, 1999]
17.e. There is ignominy when the culprits successively raped the daughter
in one place and her mother in another place. [PP v. Velo, March 13, 1948]
17.d. This Court in previous rape cases, has held the following
circumstances ignominious:
(a) where the accused ordered the complainant to exhibit to them her complete
nakedness for about ten minutes before raping her;
(b) where the rape was committed by two or more persons in view of one
another;
(c) where the sexual intercourse was performed in the "dog style" position;
(d) and where the accused plastered mud on the victim's private part.
(e) Ignominy was also present where the victim was pregnant and whose pleas
on that ground were ignored by the accused who went on to force his lust on her.
The accused then tied a banana fiber around his penis and inserted it again into
her vagina. Thereafter, he pulled out his organ and forced the victim to suck it.
[PP v. Bacule, Jan. 28, 2000]

(18) That the crime be committed after an UNLAWFUL ENTRY. There is an

unlawful entry when an entrance is effected by a way not intended for the
purpose.
18.a. But breaking of roof, or wall, or window, falls in the next paragraph.
18.b. This is absorbed in the crime of Robbery with force upon things.

(19) That as a means to the commission of a crime a wall, roof, floor,

door, or window be broken.
19.a. Absorbed in Robbery with force upon things, because this crime may
not be committed unless the culprits enter the building unlawfully.
19.b. APPreciated, together with dwelling, in robbery with homicide,
because this kind of robbery may be committed outside of he building.

(20) That the crime be committed with the aid of persons under fifteen
years of age or by means of motor vehicles, motorized watercraft, airships,
or other similar means. (As amended by RA 5438).
20.a. The offender is of greater perversity if he takes advantage of the
youthfulness of a person in aiding him to commit a crime.
20.b. NOT APPRECIATED --- The accused and his co-conspirators used
the jeep of the victim merely to facilitate their escape. It was not intentionally
sought to ensure the success of their nefarious plan; and it was not shown that
without the use of the vehicle the offense charged could not have been
committed. [PP v. Veloso, Feb. 25, 1982]
20.c. APPRECIATED --- Accused loaded their loot on board a jeepney.
[People vs. Moreno, March 22,1993.]

(21) CRUELTY…. That the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not necessary for its commissions.
21.a. Cruelty refers to physical suffering of the victim purposely intended
by the offender. Hence, the wrong done must be performed while the victim is still

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alive. For cruelty to exist, it must be shown that the accused enjoyed and delighted in
making the victim suffer slowly and gradually, causing him unnecessary physical or
moral pain in the consummation of the act. [PP v. Gatcho, Feb. 26, 1981]
21.b. But the number of wounds is not a test for determining whether
cruelty is present. The test is whether the accused deliberately and sadistically
augmented the victim's suffering. Consequently, there must be proof that the
victim was made to agonize before he was killed. [PP v. Panida, et al., July 6,
1999]
21.c. The fact that victim's decapitated body bearing forty-three (43) stab
wounds, twenty-four (24) of which were fatal, was found dumped in the street is
not sufficient for a finding of cruelty where there is no showing that appellant, for
his pleasure and satisfaction, caused the victim to suffer slowly and painfully and
inflicted on him unnecessary physical and moral pain. Number of wounds alone
is not the criterion for the appreciation of cruelty as an aggravating circumstance.
Neither can it be inferred from the mere fact that the victim's dead body was
dismembered. [PP v. Ilaoa, June 16, 1994]

Chapter Five
ALTERNATIVE CIRCUMSTANCES

Art. 15. Their concept. — Alternative circumstances are those, which must
be taken into consideration as aggravating or mitigating according to the nature and
effects of the crime and the other conditions attending its commission. They are the
relationship, intoxication and the degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be taken into consideration
when the offended party is
(a) the spouse, (b) ascendant, (c) descendant, (d) legitimate, natural, or adopted
brother or sister, or (e) relative by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into consideration as
(a) a mitigating circumstances when the offender has committed a felony in a state of
intoxication, if the same is not habitual or not subsequent to [after] the plan to commit
said felony
(b) but when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.
ANNOTATIONS
. RELATIONSHIP:

a. Relationship. Article 266-B, RPC, on Penalties, provides, viz:

xxx xxx xxx
The death penalty (R.A. 9346 prohibits the imposition of the Death Penalty in
the Philippines )) shall also be imposed if the crime of rape [First kind --- with unlawful
carnal knowledge] is committed with any of the following aggravating/qualifying
circumstances:
(1) When the victim is under eighteen [18] years of age and the offender is
a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the parent of the victim; xxx.

b. As a rule, relationship is held to be aggravating in crimes against chastity,

such as rape [See Art. 266-B, RPC] and acts of lasciviousness, whether the offender is
a higher or a lower degree relative of the offended party. [PP v. Catubig, Aug. 23, 2001]

Page 59 of 125
 N.B. --- Crimes against chastity: Adultery; concubinage; acts of
lasciviousness; seduction; corruption of minors; white slave trade; & abduction.

c. See Art. 20 where relationship is exempting.

d. Relationship is exempting in Art. 332, viz:

Persons exempt from criminal liability. — No criminal, but only civil
liability, shall result from the commission of the crime of theft, swindling or
malicious mischief committed or caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by
affinity in the same line.
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall have passed into
the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in- law,
if living together.
The exemption established by this article shall not be applicable to
strangers participating in the commission of the crime.

e. In parricide, where relationship is an element, relationship is not considered.

f. Art. 263 of the RPC provides:

Serious physical injuries. — Any person who shall wound, beat, or
assault another, shall be guilty of the crime of serious physical injuries and
shall suffer:
1. The penalty of prision mayor, if in consequence of the
physical injuries inflicted, the injured person shall become insane,
imbecile, impotent, or blind;
2. The penalty of prision correccional in its medium and
maximum periods, if in consequence of the physical injuries inflicted, the
person injured shall have lost the use of speech or the power to hear or to
smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall
have lost the use of any such member, or shall have become
incapacitated for the work in which he was therefor habitually engaged;
3. The penalty of prision correccional in its minimum and
medium periods, if in consequence of the physical injuries inflicted, the
person injured shall have become deformed, or shall have lost any other
part of his body, or shall have lost the use thereof, or shall have been ill or
incapacitated for the performance of the work in which he as habitually
engaged for a period of more than ninety days;
4. The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period, if the physical injuries inflicted
shall have caused the illness or incapacity for labor of the injured person
for more than thirty days.
If the offense shall have been committed against any of the persons
enumerated in Article 246, or with attendance of any of the circumstances
mentioned in Article 248, the case covered by subdivision number 1 of this
Article shall be punished by reclusion temporal in its medium and
maximum periods; the case covered by subdivision number 2 by prision
correccional in its maximum period to prision mayor in its minimum period;
the case covered by subdivision number 3 by prision correccional in its

Page 60 of 125
 medium and maximum periods; and the case covered by subdivision
number 4 by prision correccional in its minimum and medium periods.
The provisions of the preceding paragraph shall not be applicable
to a parent who shall inflict physical injuries upon his child by excessive
chastisement.

N.B. --- persons enumerated in Art. 246 --- Father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse.

g. The Child and Youth Welfare Code, P.D. 603: (see also RA 7610 & RA 9344
of 2006)
Art. 59. Crimes. - Criminal liability shall attach to any parent
who:
(8) Inflicts cruel and unusual punishment upon the child or
deliberately subjects him to indignations and other excessive
chastisement that embarrass or humiliate him.

INTOXICATION:

a. For intoxication to be a mitigating circumstance, the following conditions must

be present:
(1) The same is not habitual or is not subsequent to [after] a plan of the
commission of a felony; otherwise, it is aggravating if it is habitual and intentional; and
(2) The consumption of alcoholic drinks was in such quantity as to blur the
accused’s reason and deprive him of a certain degree of control. [PP. v. Muerong, July
6, 2001]
b. The accused pleading intoxication to mitigate penalty must present proof:
[1] Of having taken a quantity of alcoholic beverage before the
commission of the crime;
[2] That the quantity taken was sufficient to produce the effect of
obfuscating reason.
[3] Of not being a habitual drinker and not taking the alcoholic drink with
the intention to reinforce his resolve to commit the crime. [PP v. Cortes, July 11, 2001]
d. When the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance. [PP v. Bato, Dec. 15, 2000]
[Link] was not habitual, considered mitigating. [Cortes, supra.]

DEGREE OF INSTRUCTION AND EDUCATION/LACK OF EDUCATION:

a. Lack of education must be proved positively and cannot be based on mere

deduction or inference.. Moreover, mere illiteracy is not sufficient to constitute a
mitigating circumstance. There must be also lack of intelligence. [People vs. Retania,
January 22, 1980]

b. NOT APPRECIATED:
b.1. Where the accused has studied up to sixth grade, the Court was of
the opinion that it is more than sufficient schooling to give a person a degree of
instruction as to properly apprise him of what is right and Wrong. [People vs. Pujinio, et
al., April 29, 1969]

Page 61 of 125
 b.2. As a Christian, accused cannot possibly be ignorant of the fifth
commandment (you shall not kill) or that it is contrary to natural law to commit murder.
[People vs. Laspardas, October 23, 1979]
b.3. Low degree of instruction and education are not mitigating in crimes
against chastity like rape. [Garganera vs. Jocson, September 1, 1992]
b.4. Both accused finished elementary grades and, therefore, were not
illiterate. Although the criterion in determining lack of education is not illiteracy alone,
but lack of sufficient intelligence, there is no showing that the accused were of such low
mental capacity that they had not realized the full significance of their acts. No one,
however unschooled he may be, is so ignorant as not to know that theft or robbery, or
assault upon the person of another is inherently wrong and a violation of the law. [PP v.
Ang, Oct. 8, 1985]

c. APPRECIATED:
C.1. People vs. Mengote, July 25, 1975, Where the two accused, who
were ignorant non-Christian, entered a plea of guilty in the crime of robbery with
homicide. In its obiter, the Supreme Court even extended the benefit to ignorant
persons with little or no education, who are unschooled and illiterate.
c.2. Where an accused has committed the crime of murder and it appears
that he lacks education and instruction for the reason that he did not finish even the first
grade in elementary school, the mitigating circumstance of lack of education should be
taken into consideration. [PP v. Limaco, Jan. 9, 1951]

Title Two
PERSONS CRIMINALLY LIABLE FOR FELONIES

Art. 16. Who are criminally liable. — The following are criminally liable for
grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals
2. Accomplices.

Art. 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act; [Principal by
direct participation] (actual perpetrator)
2. Those who directly force or induce others to commit it; [Principal by
inducement]
3. Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished. [Principal by indispensable
cooperation]

ANNOTATIONS
CONSPIRACY:

a. In conspiracy, the essential elements are: (1) concurrence of wills; & (2) unity
of action and purpose.

Page 62 of 125
 b. Conspiracy is incompatible with negligence [PP. v. Abdona Montilla,
(CA) 52 O.G.4327

People vs. Marquita et al. March 1, 2000

As to the finding of conspiracy, we have said time and

again that the same degree of proof required for establishing the
crime is required to support a finding of conspiracy. Conspiracy,
like the crime itself, must be proven beyond reasonable doubt and
one's presence in the crime scene does not make an accused a
conspirator [ People v. Desoy, August 16, 1999, p. 16; People v.
Abrera, 12 Dec. 1997)]. N.B. --- This is about passive presence,
PP v. Madera, infra.
Conspiracy transcends mere companionship [People v.
Quinao, 13 Mar. 1997]; [People v. Manuel, 28 July 1994].
Mere knowledge, acquiescence or approval of the act,
without cooperation or agreement to cooperate, is not enough to
constitute one a party to a conspiracy. Likewise, there must be
intentional participation in the transaction with a view to the
furtherance (Arcadio Aniel, 21 Feb. 1980); People v. Francisco
Izon, et al., 16 Oct.1958)].

People vs. Hatague April 7,1992

Conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and decide to
Commit it [Art. 8, RPC]. To establish conspiracy, prior agreement
between both accused to kill the victim is not essential for the
same may be inferred from their own acts showing a joint purpose
and design [People vs. Tachado, et al., 27 Feb. 1989].

People vs. Quiñones March 28, 1990

In a conspiracy, the act of one is the act of all and every

one of the conspirators is guilty with the others in equal degree.
Hence, every member of the group that perpetrated the killing and
robbery of the three victims must suffer the same penalty
prescribed by law even if they had different modes of participation
in the commission of the crime [People vs. Salvador, 26 July
1988].

People vs. Madera May 31, 1974

MERE PASSIVE PRESENCE AT THE SCENE OF THE

CRIME DID NOT MAKE APPELLANTS MARIANITO ANDRES
AND GENEROSO ANDRES LIABLE.- The fact that appellants
Marianito Andres and Generoso Andres were standing behind
appellant Madera when the latter fired shots at Elino Bana, did not
make them liable for what Madera did, there being no proof
whatsoever of any conspiracy among the three appellants. They
were not armed. They did nothing to help Madera. Their mere

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passive presence at the scene of the crime did not make them
liable either as co-principals or accomplices.

INDICIA OF CONSPIRCY [ATM --- A B L E]

People vs. Casey, et al. February 24, 1981

Pursuant to this uniform and consistent jurisprudence on

the existence of conspiracy by the mere proof of community of
design and purpose on the part of the accused, We hold that
conspiracy exists in this case. True enough that there is no direct
evidence showing that the accused had conspired together, but
their acts and the attendant circumstances disclose that common
motive that would make accused Ricardo Felix as a co-principal
with the actual slayer, Joseph Casey.
Without doubt, he performed overt acts in furtherance of
the conspiracy. In People vs. Peralta [25 SCRA 759]. it was held
that such overt act may consist in actively participating in the
actual commission of the crime, in lending moral assistance to
his coconspirators by being present at the scene of the crime,
or in exerting moral ascendancy over the rest of the
conspirators as to move them to executing the conspiracy. In the
case at bar, Ricardo Felix's overt acts consist in instigating the
pursuit of the deceased, in firing a shot at him and in giving
Joseph Casey encouragement by his armed presence while the
latter inflicted the fatal wounds on the deceased.

People vs. Peralta, et al. October 29, 1968

CONSPIRACY; DOCTRINE.- A conspiracy exists when two

or more persons come to an agreement concerning the
commission of a felony and decide to commit it.
Generally, conspiracy is not a crime except when the law
specifically provides for a penalty therefore as in treason, rebellion
and sedition. The crime of conspiracy known to the common law is
not an indictable offense in the Philippines. An agreement to
commit a crime is a reprehensible act from the viewpoint of
morality, but as long as the conspirators do not perform overt acts
in furtherance of their malevolent design, the sovereignty of the
State is not outraged and the tranquility of the public remains
undisturbed.
However, when in resolute execution of a common
scheme, a felony is committed by two or more malefactors, the
existence of conspiracy assumes pivotal importance in the
determination of liability of the perpetrators.

People vs. Dumayan May 21, 2001

There is no need to prove a previous agreement among the

malefactors to commit the crime if by their overt acts, it is clear
that they acted in concert in the pursuit of their unlawful design. In
this case, the malefactors’ actions of assisting one another in

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simultaneously stabbing and inflicting wounds on the victim are
clear and indubitable proofs of a concerted effort to bring about
the death of the victim. There being a conspiracy in the
commission of the crime, each of the conspirators, no matter how
minimal his participation in the crime, is guilty as principal
perpetrator thereof.

People vs. Lagarto and Cordero, Feb. 29, 2000

All these demonstrate that the prosecution established

beyond reasonable doubt that LAGARTO, CORDERO, and
Lagunday shared a common design to rape and kill Angel Alquiza.
Although there is no direct proof of such unity of purpose,
conspiracy was properly appreciated in these premises by the trial
court because their individual acts, taken as a whole, showed that
they were acting in unison and cooperation to achieve the same
unlawful objective.107.] Under these premises, it is not even
necessary to pinpoint the precise participation of each of the
accused, the act of one being the act of all.108; People v.
Pulusan, 290 SCRA 353 [1998]; People v. Medina, 292 SCRA 436
[1998]; People v. Chua, 297 SCRA 229 [1998].] thus, the trial
court correctly observed that "conspiracy is established by the
concerted action of the accused in the commission of the crime as
well as in their concerted efforts after the commission of the
crime,"109 as when they attempt to dispose of the body of the
victim to hide their misdeed. In the case at bar, the trial court
found that CORDERO, LAGARTO, and Lagunday acted in concert
to slay the victim and thereafter conceal her body by wrapping it in
a round yellow tablecloth, putting it in a sack, and leaving it in the
flooded street of Del Pan. Jurisprudence constantly points out that
the conduct of the accused before, during, and after the
commission of the crime may be considered to show an extant
conspiracy.110.] Even if by Barlam's testimony it would appear
that only CORDERO raped Angel, LAGARTO is still liable for the
crime of rape with homicide because where conspiracy is
adequately shown, the precise modality or extent of participation
of each individual conspirator becomes secondary. The applicable
rule, instead, is that the act of one conspirator is the act of all of
them.111; People v. Lising, 285 SCRA 595 [1998].

PP v. Escober, Jan. 29, 1988

Clearly, Pelagio, having fled from the scene of the robbery,

had abandoned the conspiracy and dissociated himself from his
coconspirators even while the robbery was still in process and
certainly before the unfortunate policeman arrived on the scene as
the robbers were about to escape in a taxi. Because of such
abandonment and dissociation, the conspiracy, whatever may
have been the subject thereof was over and done with, so far as
concerned Pelagio. Abandonment and dissociation are clear
equivalents of efforts to prevent the homicide which, under

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 Macalalad, would exculpate one from liability for the homicide but
not for the robbery.

-------------------------------------------------------------------------------------------------

TABULAR PRESENTATION:

PROVIDED THAT THE RAPE MERELY ACCOMPANIED THE ROBBERY AND

NOT IN FURTHERANCE OF OR PURSUANT TO THE CONSPIRACY. ALSO, THE
RAPE IS NOT A NECESSARY AND LOGICAL CONSEQUENCE OF THE INTENDED
CRIME.

A. CONSPIRACY:
All of these also apply to robbery with homicide. [See concurring opinion of J.
Gutierrez in the Escober case.]

1. XYZ --- CONSPIRED TO ROB. 2. XYZ CONSPIRED TO ROB.

XYZ --- ROB XYZ –-- ROB
XY --- RAPE “A” XY --- RAPE “A”
Z --- NO KNOWLEDGE ABOUT Z --- HAS KNOWLEDGE OF THE RAPE
THE RAPE –OR- HAS AND DID NOT ENDEAVOR TO PREVENT
KNOWLEDGE BUT ITS COMMISSION.
ENDEAVORS TO PREVENT ITS
COMMISSION -OR- NO CRIME: XYZ --- ROBBERY WITH RAPE
CHANCE TO PREVENT ITS
COMMISSION, e.g. BECAUSE
OF SUDDENNESS. [SEE:
OMPAD CASE]

CRIMES: XY --- ROBBERY WITH

RAPE
Z --- ROBBERY ONLY

B: B A N D

1. WXYZ --- ROB 2. WXYZ --- ROB

WXY --- RAPE “A” WXY --- RAPE “A”
Z --- ENDEAVORS TO PREVENT Z --- DID NOT ENDEAVOR TO PREVENT
THE RAPE. THE RAPE. [WITH OR WITHOUT
CRIMES: WXY --- ROBBERY W/ KNOWLEDGE IS IMMATERIAL
RAPE BECAUSE OF THE 2nd PAR. OF ART. 296.]
Z --- ROBBERY ONLY
CRIME: WXYZ --- ROBBERY W/ RAPE

AUTHORITIES

1. PP. VS. JUAN G. ESCOBER, ET AL., JAN. 29, 1988

2. PP. VS. SULPICIO DE LA CERNA, OCT. 30, 1967

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3. U.S. VS. TIONGO, ET AL., MARCH 26, 1918
4. PP. VS. JUAN MORENO, MARCH 22, 1993
5. U.S. VS. JULIAN MACALALAD, OCT. 8, 1907
6. PP. VS. Apolonio ADRIANO, 22 Jan. 1980
7. PP. VS. OMPAD, JAN. 31, 1969
8. PP. VS. VISCARRA, JULY 30, 1982 [SUDDENNESS OF THE KILLING]
-------------------------------------------------------------------------------------------------
PRINCIPAL BY INDUCEMENT:

a. REQUISITES of Inducement or Induction --- (1) that it be made directly with

the intention of procuring the commission of the crime; and (2) that such inducement
must be the determining cause (primary consideration) of the commission of the crime
by the actual perpetrator. [PP v. Agapinay, 27 June 1990, See Aggravating
Circumstance No. 11.]

b. If one induces another to commit a crime, the influence is the determining

cause of the crime. Without the inducement, the crime would not have been committed.
Indeed, the inducer sets into motion the execution of the criminal act. Without the
inducement, the actual perpetrator would not have falsified the records. [Chua vs. CA,
August 28, 1996]

c. For an act to be considered as direct inducement, it is necessary that such

advice or such words have a great dominance and great influence over the person who
acts. It is necessary that they be as direct, as efficacious, as powerful as physical or
moral coercion or as violence itself. [PP v. Indanan, Jan. 29, 1913]
Also, in Indanan, the Supreme Court cited some cases where the act may not be
considered as inducement as contemplated in Art. 17 (2), viz:

That one who during a riot in which a person was killed, said to one of the
combatants, "Stab him! Stab him!", it not appearing that he did anything more than say
these words except to be present at the fight, was not guilty of the crime of homicide by
inducement, the court saying that, "considering that, although the phrases pronounced
were imprudent and even culpable, they were not so to the extent that they may be
considered the principal and moving cause of the effect produced; direct inducement
cannot be inferred from such phrases, as inducement must precede the act induced
and must be so influential in producing the criminal act that without it the act would not
have been performed."
A person who advised a married woman whose husband was very stingy and
treated her badly that the only thing for her to do was to rob him, was not guilty of the
crime of robbery by inducement, for the reason that imprudent and ill-conceived advice
is not sufficient.
A father who simply said to his son who was at the time engaged in combat with
another, "Hit him! Hit him!", was not responsible for the injuries committed after such
advice was given, under the facts presented. The court said: "It being held in mind that
the inducement to the commission of the crime by means of which a person may be
considered a principal in the same manner as he who executes the act itself can only be
founded in commands, sometimes in advice, in considerations, or by inducement so
powerful that it alone produces the criminal act. "

Page 67 of 125
 d. Where the alleged inducement to commit the crime was no longer necessary
to incite the assailant, the utterer cannot be held accountable for the crime as a principal
by inducement. [PP vs. Parungao, Nov. 28, 1996, EN BANC]

e. See par. 5 and 6 of Art. 12, viz: COMPULSION OF IRRESISTIBLE

FORCE&IMPULSE OF ANUNCONTROLLABLE FEAR of an equal or greater injury
where only the inducer is liable, the actual perpetrator is exempted.

f. Where the manner, means, or form of executing the crime, e.g., with the use of
explosive, by means of treachery, or with the use of a motor vehicle, was never included
in the inducement, such will not affect the inducer. [PP vs. Delfin, et al., July 31, 1961]

PRINCIPALS BY INDISPENSABLE COOPERATION:

a. To cooperate is to help, to aid; and necessarily presupposes, knowledge of the

ultimate purpose in view. To cooperate means to desire or wish in common a thing.
However, that common will or purpose does not necessarily mean a previous
understanding. [Samson vs. Court of Appeals, et al., March 31, 1958] It can be inferred
from the circumstances of each case. [PP v. Aplegido, et al., April 27, 1946]

b. APPRECIATED: when the victim was lying on the ground and being raped by
R, D held the hands of the victim without which rape would not have been
accomplished. [People v. Cortes, September 3, 1993]

Art. 18. Accomplices. — Accomplices are those persons who, not being
included in Art. 17, cooperate in the execution of the offense by previous or
simultaneous acts. [Accessories before the fact]

ANNOTATIONS
a. To hold a person liable as an accomplice, two elements must be present: (1)
the community of criminal design; that is, knowing the criminal design of the principal by
direct participation, he concurs with the latter in his purpose; and (2) the performance of
previous or simultaneous acts that are not indispensable to the commission of the
crime. [PP v. Vera, Aug. 18, 1999]

b. An accomplice does not enter into a conspiracy with the principal by direct
participation. He does not have previous agreement or understanding with the principal
to commit a crime. Nevertheless, he participates to a certain point in the common
criminal design. [PP vs. Elefaño, Jr., et al., November 25, 1983]

c. To sum it up, the ELEMENTS would be: That he knowingly or intentionally

takes part in the execution of the crime by previous or simultaneous acts, which are
either moral or physical, but are not indispensable in the commission of the crime.
However, there should be no conspiracy or previous agreement or understanding with
the principal to commit a crime. Otherwise, that would make him a co-principal, a co-
conspirator.
d. APPRECIATED: PP v. Pastores, et al., Aug. 31, 1971 --- We agree with
defense counsel that the details of commission of the offense do not satisfactorily
support the finding of conspiracy, particularly in view of the uncontradicted fact that the
herein appellants met the complainant Minda Reyes and her companion and friend,
Brillantes, purely by chance [Read: no conspiracy]. Whatever the responsibility of Magat

Page 68 of 125
and Villar, it must be predicated on their action in separating Brillantes from the
complainant when all five had reached the river dike, and thereafter preventing
Brillantes from rendering aid to Minda. While this act was undoubtedly one of help and
cooperation. We do not view it as indispensable, so that the rape could not have been
committed without the sequestration of Brillantes. It must be recalled that at the
grandstand, the latter proved no match for Pastores, who boxed and effectively
weakened Brillantes and further, Pastores was then armed with a knife while Brillantes
had no weapon. xxx.
In PP vs. Tamayo, 17 Nov. 1922, the accused who stayed outside the house
while the others robbed and killed the victims, yet had knowledge of the criminal
intention of the other accused and only went along with them was only convicted as an
accomplice. In People vs. Crisostomo (17 Feb. 1923), three of the accused who held
the victim's companions to prevent the latter from rendering any help to the victim who
was being kidnapped were only convicted as accomplices, even if circumstances
indicated conspiracy among them, for their acts were not indispensable to the
realization of the crime. Well known is the rule that in case of doubt as to the
participation of an accused the lesser liability should prevail.
PP v. Chua Huy, Aug. 31, 1950 --- The participation in the kidnapping consisted
in guarding the victims to keep them from escaping. This participation was simultaneous
with the commission of the crime if not with its commencement or previous thereto.
Although detention is an essential element of kidnapping, but the act of guarding the
victims was not indispensable to the end proposed. Therefore, they are responsible as
accomplices only.

Art. 19. Accessories. — Accessories are those who, having knowledge of

the commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the following
manners: [Accessories after the fact]
1. By profiting themselves or assisting the offender to profit by the effects of
the crime.
2. By concealing or destroying the body of the crime, or the effects or
instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the principals of the
crime [any crime, except light felonies], provided the accessory acts with abuse
of his public functions or whenever the author of the crime is guilty of treason,
parricide, murder, or an attempt to take the life of the Chief Executive, or is
known to be habitually guilty of some other crime.
ANNOTATIONS

a. Who are accessories? They are neither principals nor accomplices, but ---
1. Have knowledge of the commission of the crime;
2. Take part subsequent to its commission in any of the following manner:
a. Profiting economically themselves or assisting the offender to
profit economically from the effects of the crime. [But the principal may not be guilty
because of exempting circumstance, e.g., minority or as in Art. 332, supra, page 70, on
Relationship, Alternative circumstances];
b. By concealing or destroying the body of the crime or the effects
or instruments thereof, in order to prevent its discovery;
c. By Concealing, Harboring, or Assisting in the escape of the
principal of the crime [any kind except light felonies] if he acts with abuse of public

Page 69 of 125
functions or when the author of the crime is guilty of Treason, Parricide, Murder, or an
Attempt to take the life of the president or is known to be Habitually guilty of some other
crime. [Art. 19] ---- (For additional penalty, see Art. 58. See also Art. 208.) [ATM ---
Three Pretty Maids Always HIde]

Art. 58. Additional penalty to be imposed

upon certain accessories. — Those accessories falling within
the terms of paragraphs 3 of Article 19 of this Code who should
act with abuse of their public functions, shall suffer the
additional penalty of absolute perpetual disqualification if the
principal offender shall be guilty of a grave felony, and that of
absolute temporary disqualification if he shall be guilty of a less
grave felony.

Art. 208. Prosecution of offenses; negligence and

tolerance. — The penalty of prision correccional in its minimum
period and suspension shall be imposed upon any public
officer, or officer of the law, who, in dereliction of the duties of
his office, shall maliciously refrain from instituting prosecution
for the punishment of violators of the law, or shall tolerate the
commission of offenses. [Prevaricacion]

b. The phrase “Take part subsequent to its commission” clearly suggests that
accessories neither participate in the criminal design nor in its commission.

c. No accessory in light crimes.

d. Related Special Laws are: PD 1829, Obstruction of Justice (16 Jan. 1981),
and PD 1612, Anti-fencing, viz:

PRESIDENTIAL DECREE NO. 1829

Sec. 1. The penalty of prision correccional in its maximum
period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall
be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and
the investigation and prosecution of criminal cases by committing
any of the following acts:
(a) preventing witnesses from testifying in any
criminal proceeding or from reporting the commission of any
offense or the identity of any offender/s by means of bribery,
misrepresentation, deceit, intimidation, force or threats;
(b) altering, destroying, suppressing or concealing
any paper, record, document, or object, with intent to impair its
verity, authenticity, legibility, availability, or admissibility as
evidence in any investigation of or official proceedings in, criminal
cases, or to be used in the investigation of, or official proceedings
in, criminal cases;
(c) harboring or concealing, or facilitating the escape of, any
person he knows, or has reasonable ground to believe or suspect,

Page 70 of 125
has committed any offense under existing penal laws in order to
prevent his arrest prosecution and conviction;
(d) publicly using a fictitious name for the purpose of
concealing a crime, evading prosecution or the execution of a
judgment, or concealing his true name and other personal
circumstances for the same purpose or purposes;
(e) delaying the prosecution of criminal cases by
obstructing the service of process or court orders or disturbing
proceedings in the prosecutor's offices, in Tanodbayan, or in the
courts;
(f) making, presenting or using any record, document,
paper or object with knowledge of its falsity and with intent to
affect the course or outcome of the investigation of, or official
proceedings in, criminal cases;
(g) soliciting, accepting, or agreeing to accept any benefit in
consideration of abstaining from, discounting, or impeding the
prosecution of a criminal offender;
(h) threatening directly or indirectly another with the
infliction of any wrong upon his person, honor or property or that
of any immediate member or members of his family in order to
prevent such person from appearing in the investigation of, or
official proceedings in, criminal cases, or imposing a condition,
whether lawful or unlawful, in order to prevent a person from
appearing in the investigation of or in official proceedings in,
criminal cases;
(i) giving of false or fabricated information to mislead or
prevent the law enforcement agencies from apprehending the
offender or from protecting the life or property of the victim; or
fabricating information from the data gathered in confidence by
investigating authorities for purposes of background information
and not for publication and publishing or disseminating the same
to mislead the investigator or to the court.
If any of the acts mentioned herein is penalized by any
other law with a higher penalty, the higher penalty shall be
imposed.
Sec. 2. If any of the foregoing acts is committed by a
public official or employee, he shall in addition to the penalties
provided there under, suffer perpetual disqualification from holding
public office.

PRESIDENTIAL DECREE NO. 1612

Sec. 2. Definition of Terms. - The following terms shall
mean as follows:

a. "Fencing" is the act of any person who, with intent to

gain for himself or for another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or in any
other manner deal in any article, item, object or anything of value
which he knows, or should be known to him, to have been derived
from the proceeds of the crime of robbery or theft.

Page 71 of 125
 b. "Fence" includes any person, firm, association
corporation or partnership or other organization who/which
commits the act of fencing.

Sec. 5. Presumption of Fencing. - Mere possession of

any good, article, item, object, or anything of value which has
been the subject of robbery or thievery shall be prima facie
evidence of fencing.

e. Concealing or Destroying the Body of the Crime:

1. Corpus delicti is the body of the crime and, in its primary sense, means
a crime has actually been committed. [People v. Mantung, G.R. No. 130372, July
20, 1999, p. 11.] Applied to a particular offense, it is the actual commission by
someone of the particular crime charged. In this case, aside from the extra-
judicial confessions, the police found the stolen goods, the murder weapons, and
the dead bodies, thereby conclusively establishing the needed corroborating
evidence of corpus delicti. [PP v. Moana, et al., June 8, 2000]

2. Corpus delicti means the "body or substance of the crime, and, in its
primary sense, refers to the fact that the crime has been actually committed.” In
theft, corpus delicti has two elements, namely: (1) that the property was lost by
the owner, and (2) that it was lost by felonious taking. [PP v. Tan, Aug. 26, 1999]

f. To hold the accessory liable, it should be established that the principal

committed a crime and that his guilt is directly related to said crime. The accessory may
still be held liable even when the principal is not made criminally liable because of
exempting circumstance, e.g., minority or as in Art. 332, supra, page 40 (d) on
Relationship, Alternative circumstances.
However, there is no necessity that the principal must be apprehended and tried,
the accessory may be tried and convicted even in the absence of the principal, provided
the body or substance of the crime is proved and his participation was established
beyond reasonable doubt. [Nueva, 74 O.G. 1424, Feb. 16, 1976]

Art. 20. Accessories who are exempt from criminal liability. — The penalties
prescribed for accessories shall not be imposed upon those who are such with respect
to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers
and sisters, or relatives by affinity within the same degrees, with the single exception of
accessories falling within the provisions of paragraph 1 of the next preceding article.

ANNOTATIONS
a. They are exempted from any liability provided they did not economically profit
or help the principal profit from the effects of the crime.

b. However, even if they did not, they may still be made liable under P.D.
No. 1829, Obstruction of Justice, supra. See also Art.208 --- Prosecution of offenses;
negligence and tolerance. — The penalty of prision correccional in its minimum period
and suspension shall be imposed upon any public officer, or officer of the law, who, in
dereliction of the duties of his office, shall maliciously refrain from instituting prosecution
for the punishment of violators of the law, or shall tolerate the commission of offenses.
.

Page 72 of 125
 Title Three
PENALTIES
Chapter One
PENALTIES IN GENERAL

Art. 21. Penalties that may be imposed. — No felony shall be punishable by

any penalty not prescribed by law prior to its commission. [This is in consonance with
the limitation re “ex post facto law.” See also the other limitations found on page 1.]

Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a
retroactive effect insofar as they favor the persons guilty of a felony, who is not a
habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at
the time of the publication of such laws a final sentence has been pronounced and the
convict is serving the same. [See page 8 on IRRETROSPECTIVITY OR
PROSPECTIVITY ]

ANNOTATIONS

a. Also applies to special laws. [EN BANC, G.R. No. L-17905 January 27, 1923,
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. JUAN MORAN,
FRUCTUOSO CANSINO, and HILARIO ODA, defendants-appellants.]

b. Art. 22 refers to substantive penal laws. It does not apply to procedural rule of
evidence involving the incompetency and inadmissibility of confessions in the
constitution, and therefore cannot be included in the term "penal laws." Also, because
constitutional provisions as a rule should be given a prospective effect. [EN BANC,
March 3, 1975, MAGTOTO vs. MANGUERA et al.]

c. As regards jurisdiction of a court to try criminal cases, retroactivity does not

apply.

Art. 23. Effect of pardon by the offended party. — A pardon of the offended
party does not extinguish criminal action except as provided in Article 344 of this Code;
but civil liability with regard to the interest of the injured party is extinguished by his
express waiver.

a. Article 344, RPC: (As regards rape, see Art. 266-C or R.A. 8353)

Prosecution of the crimes of adultery, concubinage,

seduction, abduction, rape and acts of lasciviousness. — The
crimes of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse. [N.B. ---
the pardon must be made before the filing of the case.]
The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both alive, nor,
in any case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents, or

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 guardian, nor, in any case, if the offender has been expressly
pardoned by the above named persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness
and rape, the marriage of the offender with the offended party
shall extinguish the criminal action or remit the penalty already
imposed upon him. The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and accessories after
the fact of the above-mentioned crimes.

RPC, Art. 89. How criminal liability is totally extinguished.

— Criminal liability is totally extinguished:
(7) By the marriage of the offended woman, as provided in
Article 344 of this Code.

b. However, see R.A. No. 8353, The Anti-Rape Law of 1997, which repealed Art.
335 of the RPC. Rape is now considered as a crime against persons, therefore, being a
public crime, may now be prosecuted de officio. Article 266-C of the said law provides:

Effect of Pardon. --- The subsequent valid marriage

between the offender and the offended party shall extinguish the
criminal action or the penalty imposed.
In case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action or the penalty: Provided, That the
crime shall not be extinguished or the penalty shall not be abated
if the marriage is void ab initio.

Art. 24. Measures of prevention or safety, which neither are nor considered
penalties. — The following shall not be considered as penalties:
1. The arrest and temporary detention of accused persons, as well as their
detention by reason of insanity or imbecility, or illness requiring their confinement
in a hospital.
2. The commitment of a minor to any of the institutions mentioned in Article
80 and for the purposes specified therein.
3. Suspension from the employment of public office during the trial or in
order to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their
administrative disciplinary powers, superior officials may impose upon their
subordinates.
5. Deprivation of rights and the reparations, which the civil laws, may
establish in penal form.
Chapter Two
CLASSIFICATION OF PENALTIES

Art. 25. Penalties which may be imposed. — The penalties which may be
imposed according to this Code, and their different classes, are those included in the
following:
Scale
PRINCIPAL PENALTIES
Capital punishment:

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 Death. (R.A. 9346 debars the imposition of the death penalty.) Debar:
exclude, prohibit.

Afflictive penalties:
Reclusion perpetua, [ 20 Y, 1 D to 40 Y, but still considered indivisible.]
Reclusion temporal, (12y, 1d ~ 20y)
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor. (6y, 1d ~ 12y)
Correctional penalties:
Prision correccional, (6m, 1d ~ 6y)
Arresto mayor, (1m, 1d ~ 6m)
Suspension,
Destierro.
Light penalties:
Arresto menor, (1d ~ 30d)
Public censure.
Penalties common to the three preceding classes:
Fine, and
Bond to keep the peace.
ACCESSORY PENALTIES
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Suspension from public office, the right to vote and be voted for, the profession
or calling.
Civil interdiction,
Indemnification,
Forfeiture or confiscation of instruments and proceeds of the offense,
Payment of costs.

Art. 26. When afflictive, correctional, or light penalty. — A fine, whether

imposed as a single or as an alternative penalty, shall be considered an afflictive
penalty, if it exceeds 1,200,000 pesos; a correctional penalty, if it does not exceed
1,200,000 pesos but is not less than 40,000 pesos; and a light penalty if it less than
40,000 pesos. (Amended by: R.A. 10951, 29 May 2013)

Chapter Three
DURATION AND EFFECTS OF PENALTIES
Section One. — Duration of Penalties

Art. 27. (Sec. 21 of R. A. 7659) Reclusion perpetua. — The penalty of Reclusion

Perpetua shall be from twenty years and one day to forty years. [NOTE --- Section 10,
Rule 122, Rules of Criminal Procedure: Automatic review to the Court of Appeals]
Reclusion temporal. — The penalty of reclusion temporal shall be from twelve
years and one day to twenty years.
Prision mayor and temporary disqualification. — The duration of the penalties of
prision mayor and temporary disqualification shall be from six years and one day to
twelve years, except when the penalty of disqualification is imposed as an accessory
penalty, in which case its duration shall be that of the principal penalty.

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 Prision correccional, suspension, and destierro. — The duration of the penalties
of prision correccional, suspension and destierro shall be from six months and one day
to six years, except when suspension is imposed as an accessory penalty, in which
case, its duration shall be that of the principal penalty.
Arresto mayor. — The duration of the penalty of arresto mayor shall be from one
month and one day to six months.
Arresto menor. — The duration of the penalty of arresto menor shall be from one
day to thirty days.

Bond to keep the peace. — The bond to keep the peace shall be required to cover such
period of time as the court may determine.
NOTE: After serving 30 years, the prisoner may be pardoned.
See also Art. 70: Longest period of imprisonment is 40 years.

Art. 28. Computation of penalties. — If the offender shall be in prison, the

term of the duration of the temporary penalties shall be computed from the day on which
the judgment of conviction shall have become final.
If the offender was not in prison, the term of the duration of the penalty consisting
of deprivation of liberty shall be computed from the day that the offender is placed at the
disposal of the judicial authorities for the enforcement of the penalty. The duration of the
other penalties shall be computed only from the day on which the defendant
commences to serve his sentence.

Art. 29. (R.A. 10592, MAY 29, 2013) “ART. 29. Period of preventive imprisonment
deducted from term of imprisonment. – Offenders or accused who have undergone
preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive
imprisonment if the detention prisoner agrees voluntarily in writing after being informed
of the effects thereof and with the assistance of counsel to abide by the same
disciplinary rules imposed upon convicted prisoners, except in the following cases:
“1. When they are recidivists, or have been convicted previously twice or more
times of any crime; and
“2. When upon being summoned for the execution of their sentence they have
failed to surrender voluntarily.
“If the detention prisoner does not agree to abide by the same disciplinary rules
imposed upon convicted prisoners, he shall do so in writing with the assistance of a
counsel and shall be credited in the service of his sentence with four-fifths of the time
during which he has undergone preventive imprisonment.
“Credit for preventive imprisonment for the penalty of reclusion perpetua shall be
deducted from thirty (30) years.
“Whenever an accused has undergone preventive imprisonment for a period
equal to the possible maximum imprisonment of the offense charged to which he may
be sentenced and his case is not yet terminated, he shall be released immediately
without prejudice to the continuation of the trial thereof or the proceeding on appeal, if
the same is under review. Computation of preventive imprisonment for purposes of
immediate release under this paragraph shall be the actual period of detention with
good conduct time allowance: Provided, however, That if the accused is absent without
justifiable cause at any stage of the trial, the court may motu proprio order the rearrest
of the accused: Provided, finally, That recidivists, habitual delinquents, escapees and
persons charged with heinous crimes are excluded from the coverage of this Act. In

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case the maximum penalty to which the accused may be sentenced is destierro, he
shall be released after thirty (30) days of preventive imprisonment.”
Sec. 2 — Effects of the penalties according to their respective nature

Art. 30. Effects of the penalties of perpetual or temporary absolute

disqualification. — The penalties of perpetual or temporary absolute disqualification for
public office shall produce the following effects:
1. The deprivation of the public offices and employment’s which the offender may
have held even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or to
be elected to such office.
3. The disqualification for the offices or public employment’s and for the exercise
of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in
paragraphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly
held.

Art. 31. Effect of the penalties of perpetual or temporary special

disqualification. — The penalties of perpetual or temporal special disqualification for
public office, profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected;
2. The disqualification for holding similar offices or employment’s either
perpetually or during the term of the sentence according to the extent of such
disqualification.

Art. 32. Effect of the penalties of perpetual or temporary special

disqualification for the exercise of the right of suffrage. — The perpetual or temporary
special disqualification for the exercise of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence, according to the nature of said penalty,
of the right to vote in any popular election for any public office or to be elected to such
office. Moreover, the offender shall not be permitted to hold any public office during the
period of his disqualification.

Art. 33. Effects of the penalties of suspension from any public office,
profession or calling, or the right of suffrage. — The suspension from public office,
profession or calling, and the exercise of the right of suffrage shall disqualify the
offender from holding such office or exercising such profession or calling or right of
suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another having
similar functions during the period of his suspension.

Art. 34. Civil interdiction. — Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or guardianship, either
as to the person or property of any ward, of marital authority, of the right to manage his
property and of the right to dispose of such property by any act or any conveyance inter
vivos.

Art. 35. Effects of bond to keep the peace. — It shall be the duty of any
person sentenced to give bond to keep the peace, to present two sufficient sureties who
shall undertake that such person will not commit the offense sought to be prevented,

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and that in case such offense be committed they will pay the amount determined by the
court in the judgment, or otherwise to deposit such amount in the office of the clerk of
the court to guarantee said undertaking.
The court shall determine, according to its discretion, the period of duration of the
bond.
Should the person sentenced fail to give the bond as required he shall be
detained for a period which shall in no case exceed six months, if he shall have been
prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light
felony.

Art. 36. Pardon; its effect. — A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.

People vs. Salle, Jr.

[GRN 103567 December 4, 1995]
A judgment of conviction becomes final
(a) when no appeal is seasonably perfected,
(b) when the accused commences to serve the sentence,
(c) when the right to appeal is expressly waived in writing, except where the
death penalty was imposed by the trial court, and
(d) when the accused applies for probation, thereby waiving his right to appeal.
Where the judgment of conviction is still pending appeal and has not yet
therefore attained finality, as in the instant case, executive clemency may not yet be
granted to the appellant.

Art. 37. Cost. — What are included. — Costs shall include fees and
indemnities in the course of the judicial proceedings, whether they be fixed or
unalterable amounts previously determined by law or regulations in force, or amounts
not subject to schedule.

Art. 38. Pecuniary liabilities. — Order of payment. — In case the property of

the offender should not be sufficient for the payment of all his pecuniary liabilities, the
same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of consequential damages.
3. The fine.
4. The cost of the proceedings.

Art. 39. Subsidiary penalty. — If the convict has no property with which to
meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject
to a subsidiary personal liability at the rate of one day for each amount equivalent to
the highest minimum wage rate prevailing in the Philippines at the time of the
rendition of judgment of conviction by the trial court, subject to the following rules
(Amended by RA 10159, April 10, 2012): (Subsidiary: secondary in importance)
:
1. If the principal penalty imposed be prision correccional or arresto and fine,
he shall remain under confinement until his fine referred to in the preceding
paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third

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 of the term of the sentence, and in no case shall it continue for more than one
year, and no fraction or part of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if
for a light felony.
3. When the principal imposed is higher than prision correccional, no
subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a
penal institution, but such penalty is of fixed duration, the convict, during the period of
time established in the preceding rules, shall continue to suffer the same deprivations
as those of which the principal penalty consists.
5. The subsidiary personal liability, which the convict may have suffered by
reason of his insolvency, shall not relieve him, from the fine in case his financial
circumstances should improve. (As amended by RA 5465, April 21, 1969.)

Section Three. — Penalties in which other accessory penalties are inherent

Art. 40. Death — Its accessory penalties. — The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of perpetual
absolute disqualification and that of civil interdiction during thirty years following the date
of sentence, unless such accessory penalties have been expressly remitted in the
pardon. [NOTE: R.A. 9346 debars the imposition of the DEATH PENALTY]

Art. 41. Reclusion perpetua and reclusion temporal. — Their accessory penalties.
— The penalties of reclusion perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the sentence as the case may be, and
that of perpetual absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon.

Art. 42. Prision mayor — Its accessory penalties. — The penalty of prision mayor,
shall carry with it that of temporary absolute disqualification and that of perpetual special
disqualification from the right of suffrage which the offender shall suffer although
pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon.

Art. 43. Prision correccional — Its accessory penalties. — The penalty of prision
correccional shall carry with it that of suspension from public office, from the right to
follow a profession or calling, and that of perpetual special disqualification from the right
of suffrage, if the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in the article although pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon.

Art. 44. Arresto — Its accessory penalties. — The penalty of arresto shall carry
with it that of suspension of the right to hold office and the right of suffrage during the
term of the sentence.

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. —
Every penalty imposed for the commission of a felony shall carry with it the forfeiture of
the proceeds of the crime and the instruments or tools with which it was committed.

Page 79 of 125
 Such proceeds and instruments or tools shall be confiscated and forfeited in
favor of the Government, unless they be property of a third person not liable for the
offense, but those articles which are not subject of lawful commerce shall be destroyed.

Chapter Four
APPLICATION OF PENALTIES
Section One. — Rules for the application of penalties to the persons
criminally liable and for the graduation of the same.

Art. 46. Penalty to be imposed upon principals in general. — The penalty

prescribed by law for the commission of a felony shall be imposed upon the principals in
the commission of such felony.
Whenever the law prescribes a penalty for a felony in general terms, it shall be
understood as applicable to the consummated felony.

Art. 47. [NOTE: R.A. 9346 debars the imposition of the DEATH PENALTY]
In what cases the death penalty shall not be imposed. — The death penalty shall
be imposed in all cases, in which it must be imposed under existing laws, except in the
following cases:
1. When the guilty person is more than seventy years of age.
2. When upon appeal or revision of the case by the Supreme court, all the
members thereof are not unanimous in their voting as to the propriety of the
imposition of the death penalty. For the imposition of said penalty or for the
confirmation of a judgment of the inferior court imposing the death sentence, the
Supreme Court shall render its decision per curiam, which shall be signed by all
justices of said court, unless some member or members thereof shall have been
disqualified from taking part in the consideration of the case, in which even the
unanimous vote and signature of only the remaining justices shall be required.

Art. 48. Penalty for complex crimes. — When a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for committing
the other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period.

a. Mala prohibita are excluded. (But se PP v. Malinao, [page 83]16 Feb.

2004 as regards delito complejo)
b. The case of PP v. De los Santos, March 27, 2001 jettisoned Lontok, Jr.
v. Gorgonio, April 30, 1979]

PP v. De los Santos, March 27, 2001

Article 48 of the Revised Penal Code provides that when the single act
constitutes two or more grave or less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period. Since Article 48 speaks of
felonies, it is applicable to crimes through negligence in view of the definition of felonies
in Article 3 as “acts or omissions punishable by law” committed either by means of
deceit (dolo) or fault (culpa). In Reodica v. Court of Appeals, we ruled that if a reckless,
imprudent, or negligent act results in two or more grave or less grave felonies, a
complex crime is committed. Thus, in Lapuz v. Court of Appeals, the accused was
convicted, in conformity with Article 48 of the Revised Penal Code, of the complex crime

Page 80 of 125
of “homicide with serious physical injuries and damage to property through reckless
imprudence,” and was sentenced to a single penalty of imprisonment, instead of the two
penalties imposed by the trial court. Also, in Soriao v. Court of Appeals, the accused
was convicted of the complex crime of “multiple homicide with damage to property
through reckless imprudence” for causing a motor boat to capsize, thereby drowning to
death its twenty-eight passengers.
The slight physical injuries caused by GLENN to the ten other victims through
reckless imprudence, would, had they been intentional, have constituted light felonies.
Being light felonies, which are not covered by Article 48, they should be treated and
punished as separate offenses. Separate informations should have, therefore, been
filed.

c. Since Article 48 speaks of felonies, it is applicable to crimes through

negligence in view of the definition of felonies in Article 3 as “acts or omissions
punishable by law” committed either by means of deceit (dolo) or fault (culpa). [PP v.
De los Santos, 27 March 2001]

d. Does not apply to special complex crime, e.g., Robbery with Homicide
or Rape with Homicide, because the specific article itself provides for the penalty.

e. KINDS: where the single act constitutes two or more grave or less
grave felonies (delito compuesto); and second, when the felony is a necessary means
for committing the other (delito complejo) and/or complex proper. [People vs. Tabaco,
March 19, 1997]

1. Compound Complex (DELITO COMPUESTO) --- When a single

act constitutes two or more grave or less grave felonies, id est, grave felony + grave
felony; less grave felony + less grave felony; grave felony + less grave felony; less
grave felony + grave felony.

2. Complex proper (DELITO COMPLEJO) --- When a felony, which

is either grave or less grave, is committed as a necessary means (i.e. not
“indispensable” just to facilitate) to commit another felony, which is also either grave or
less grave.

f. [Concept of] DELITO CONTINUADO [Continuing Crime] It is not a

complex crime. It is a single felony or offense consisting of a series of acts arising from
one criminal resolution. It also applies to crimes mala prohibita.

PP, appellee, vs. JOHNNY MALINAO Y NOBE, appellant.,

2004 Feb 16, En Banc)
N.B. --- BUT see P.D. 1866 as amended by R.A. 8294 & R.A. 10591 (July 23, 2012)
On the first question, it is true that from the theoretical concept of the requisite
mens rea, the killing as the result of the criminal design arose from a specific criminal
intent, that is, the animus interficendi or intent to kill. The illegal possession of the
firearm requires a discrete and specific intent to possess the weapon, which is the
animus possidendi, coupled with the physical possession thereof.

It would, therefore, appear at first blush that the two offenses having arisen from
different criminal intents, this would be, under the philosophical bases for concurso de
delitos, a case of material or real plurality under which different crimes have been

Page 81 of 125
committed and for each of which a separate criminal liability attaches. The flaw in this
approach, however, is that although two crimes have been committed, they are not
altogether separate or disconnected from each other both in law and in fact. The
illegally-possessed firearm having been the weapon used in the killing, the former was
at least the necessary, although not an indispensable, means to commit the other.

The situation thus borders closer to the concept of a complex crime proper,
technically known as a delito complejo, rather than to the postulate of two separate
crimes. It is true that former doctrines were to the effect that there can be no complex
crime where one of the component offenses is punished by a special law. The rationale
therefore was that in a complex crime, Article 48 of the Code prescribes that the penalty
shall be for the gravest offense to be applied in its maximum period. Since, at that time,
the penalties for crimes provided in special laws were not divided into periods, it would
be impossible to apply Article 48.

The ratiocination no longer applies now, specifically with respect to the case at
bar, since the penalties in Presidential Decree No. 1866 were all taken from the scale of
penalties in the Code. The only possible difficulty in this novatory approach would be on
the first kind of complex crime, that is, the delito compuesto since it exists “(w)hen a
single act constitutes two or more grave or less grave felonies.” The use of that
particular term for the delicts committed bars the application of that form of complex
crime to offenses under Presidential Decree No. 1866, since “felonies” are offenses
provided and defined in the Code.

That objection would not, however, apply to a delito complejo since it is sufficient
therefore that “an offense is a necessary means for committing the other.” By these
considerations, however, the writer does not mean to imply that a killing through the
use of an illegally-possessed firearm is a delito complejo under Article 48 of the Code.
As was carefully stated, such an offense merely borders closer to or approximates the
concept of a delito complejo, but it thereby emphasizes the thesis that the offenses
should not be considered as separate crimes to be individually punished under the
principle of material plurality.

PP vs. Ricafranca, January 28, 2000

(NOW: R.A. 10591: Murder or Homicide with the
use of an illegally possessed firearm)
"The violation of P.D. No. 1866 should have been punished
separately conformably with our ruling in People vs. Quijada.
Nevertheless, fortunately for appellant Rex Bergante, P.D. No.
1866 was recently amended by Republic Act No 8294, otherwise
known as ‘An Act Amending the Provisions of Presidential Decree
No. 1866, as Amended.’ The third paragraph of Section 1 of said
Act provides that ‘if homicide or murder is committed with the use
of an unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.’ In short, only one
offense should be punished, viz., either homicide or murder,
and the use of the unlicensed firearm should only be
considered as an aggravating circumstance. Being favorable
to Rex Bergante, this provision may be given retroactive effect
pursuant to Article 22 of the Revised Penal Code, he not being a
habitual criminal."

Page 82 of 125
 Santiago v. Garchitorina, G.R. 109265, 02 Dec. 1993

According to Cuello Calon, for delito continuado to exist there

should be
(1) A plurality of acts performed during a period of time;
(2) Unity of penal provision violated; and
(3) Unity of criminal intent or purpose
This means that two or more violations of the same penal
provisions are united in one and the same intent or resolution leading to
the perpetration of the same criminal purpose or aim. (11 Derecho Penal,
p. 520; 1 Aquino, Revised Penal Code, 630, 1987 ed)
Applying the concept of delito continuado, we treated as
constituting only one offense the following cases:
(1) The theft of 13 cows belonging to two different owners
committed by the accused at the same place and at the same period of
time (People v. Tumlos, 67 Phil. 320 [1939).
(2) The theft of six roosters belonging to two different owners, from
the same coop and at the same period of time (People v. Jaranillo, 55
SCRA 563).
(3) The theft of two roosters in the same place and on the same
occasion (People v. De Leon, 49 Phil. 437 (1926]).
(4) The illegal charging of fees for services rendered by a lawyer
every, time he collects veteran's benefits on behalf of a client, who agreed
that the attorneys fees shall be paid out of said benefits, (People v.
Sabbun, 10 SCRA 156 [1964]). The collections of the legal fees were
impelled by the same motive, that of collecting fees for services rendered,
and all acts of collection were made under the same criminal impulse
(People v. Lawas, 97 Phil. 975 [1955]).
On the other hand, we declined to apply the concept to the
following cases:
(1) Two Estafa cases, one of which was committed during the
period from January 19 to December 1955 and the other from January
1956 to July 1956 (People v. Dichupa, 113 Phil. 306 [1961] said acts were
committed on two different occasions.
(2) Several malversations committed in May, June, and July 1936,
and falsifications to conceal the said offenses committed in August and
October 1936, the malversations and falsifications were not the result of
only one purpose or of only one resolution to embezzle and falsify. x xx "
(People v. Cid, 66 Phil. 354 [1938]).
(3) Two Estafa cases, one committed in December 1963 involving
the failure of the collector to turn over the installment for a radio and the
other in June 1964 involving the pocketing of the installments for a sewing
machine (People v. Ledesma, 73 SCRA 77 [1976]).
(4) 75 Estafa, cases committed by the conversion by the agent of
collection from the customer of the employee made on different dates
(Gamboa v. Court of Appeals, 68 SCRA 308 ([1975])
The concept of delito continuado, although an outcrop of the
Spanish Penal Code, has been applied to crimes penalized under special
laws, e.g. violation of R.A. No. 145 penalizing the charging of fees for

Page 83 of 125
 services rendered following up claims for war veterans’ benefits (People v.
Sabbun, 10 SCRA 156 [1964]).
Under Article 10 of the Revised Penal Code, the Code shall be
supplementary to special laws, unless the latter provide the contrary.
Hence, legal principles developed from the Penal Code may be applied in
a supplementary capacity to crimes punished under special laws.
The question of whether a series of criminal acts over a period of
time creates a single offense or separate offenses has troubled also
American Criminal Law and perplexed American courts as shown by the
several theories that have evolved in theft cases.
The trend in theft cases is to follow the so-called "single larceny"
doctrine, that is, the taking of several things, whether belonging to the
same or different owners, at the same time and place constitutes but one
larceny. Many courts have abandoned the "separate larceny doctrine,"
under which there was a distinct larceny as to the property of each victim.
Also abandoned was the doctrine that the government has the discretion
to prosecute the accused for one offense or for as many distinct offenses
as there are victims (ANNOTATIONS, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule, look at the
commission of the different criminal acts as but one continuous act
involving the same "transaction" or as done on the same "occasion" (State
v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich.
573,45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would violate the
constitutional guarantee against putting a man in jeopardy twice for the
same offense (ANNOTATIONS, 28 ALR 2d 1179). Another court observed
that the doctrine is a humane rule, since if a separate charge could be
filed for each act, the accused may be sentenced to the penitentiary for
the rest of his life (ANNOTATIONS, 28 ALR 2d 1179).

Compound (delito compuesto)

a. Art. 48 APPLIES: PP v. Pama, [C.A.] 44 O.G. 3339 (1947) --- Only one
and the same bullet killed two (2) persons – Double Homicide.

PP v. Macagaling, October 3, 1994 --- Shooting someone, but missed,

instead the bullet hit another person who subsequently died. --- Homicide with
attempted homicide.

PP v. de Leon, 49 Phil. 237, [citing decisions of the Supreme Court of

Spain of November 2,1898, October 4, 1905] it has been held that the act of taking two
roosters belonging to two different persons in the same place and on the same occasion
cannot give rise to two crimes having an independent existence of their own, because
there are not two distinct appropriations nor two intentions that characterize two
separate crimes.

PP v. Guillen, 47 O.G. No. 7, 3433, --- a single act, that of throwing a

highly explosive hand grenade, resulting in the death of one victim and in physical
injuries on others.

Page 84 of 125
 b. DOES NOT APPLY: PP v. Desierto, [C.A.] 45 O.G. 4542 (1948) ---
where the death of several persons were caused by a single act of the accused.
Because although the burst of shots was caused by a single act of pressing the trigger
of the sub-machine gun, in view of its special mechanism, the person firing it has only to
keep pressing the trigger and it would fire continually. Therefore, it is not the act of
pressing the trigger that produced the several felonies, but the number of bullets that
actually produced them.

PP v. Tabaco, GRN 100383-100385, March 1997 --- When various victims

were injured from separate shots, such acts constitute separate and distinct crimes. In
order that the first part of Art. 48 should apply, there must be a singularity of criminal
act; singularity of criminal impulse is not written into the law.

People vs. Mision, February 26, 1991 --- Where the accused stabbed the
two victims who were separated by a distance of three (3) meters from each other.

PP v. Pacificador, 6 Feb. 2002: As the multiple murder and frustrated

murder resulted from the firing of several shots against the eight (8) victims, the crimes
are not complex.

Complex proper (delito complejo)

a. “Necessary means” --- In PP v. Salvilla, 26 April 1990, the Supreme

Court stated: The term "necessary means'' does not connote indispensable means for if
it did, then the offense as a "necessary means" to commit another would be an
indispensable element of the latter and would be an ingredient thereof. The phrase
"necessary means" merely signifies that one crime is committed to facilitate and insure
the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624,
citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515).
Illustrations: (1) Falsifying a public document, e.g., Deed of Sale in order to
commit Estafa. (2) Falsifying a commercial document, e.g., Bill of Ladings in order to
commit Estafa. (3) Direct assaults with less serious physical injuries where the victim is
an agent of a person in authority. (4) Falsification of public document in order to commit
malversation. (5) Forcible abduction with rape.

KIDNAPPING, CASE: PP v. Ramos, 12 Oct. 1998; Cited in PP v. Rimorin, et

al., 16 May 2000

Prior to 13 December 1993, the date of effectivity of RA No. 7659,

the rule was that where the kidnapped victim was subsequently killed by
his abductor, the crime committed would either be a complex crime of
kidnapping with murder under Art. 48 of The Revised Penal Code, or two
(2) separate crimes of kidnapping and murder. Thus, where the accused
kidnapped the victim for the purpose of killing him, and his abductor in fact
killed him, the crime committed was the complex crime of kidnapping with
murder under Art. 48 of The Revised Penal Code, as the kidnapping of the
victim was a necessary means of committing the murder. On the other
hand, where the victim was kidnapped not for the purpose of killing him
but was subsequently slain as an afterthought, two (2) separate crimes of
kidnapping and murder were committed.

Page 85 of 125
 However, RA No. 7659 (13 Dec. 1993) amended Art. 267 of The
Revised Penal Code by adding thereto a last paragraph, which provides -
When the victim, is killed or dies as a consequence of the
detention, or is raped, or is subjected to torture or dehumanizing acts, the
maximum penalty shall be imposed.
This amendment introduced in our criminal statutes the concept of
"special complex crime" of kidnapping with murder or homicide. It
effectively eliminated the distinction drawn by the courts between those
cases where the killing of the kidnapped victim was purposely sought by
the accused, and those where the killing of the victim was not deliberately
resorted to but was merely an afterthought. Consequently, the rule now is:
Where the person kidnapped is killed in the course of the detention,
regardless of whether the killing was purposely sought or was merely an
afterthought, the kidnapping and murder or homicide can no longer be
complexed under Art. 48, nor be treated as separate crimes, but shall be
punished as a special complex crime under the last paragraph of Art. 267,
as amended by RA No. 7659.
b. In People v. Jose, et al., G.R. No. L- 28232, Feb. 6, 1971, 37 SCRA
450, where the four accused forcibly abducted Maggie de la Riva and each of them
raped her, this Court held 'that even while the first act of rape was being performed, the
crime of forcible abduction had already been consummated, so that each of the three
succeeding crimes of the same nature can not legally be considered as still connected
with the abduction - in other words, they should be detached, from and considered
independently of, that of forcible abduction and, therefore, the former can no longer be
complexed with the latter." [ Reiterated in PP v. Tami, May 2, 1995]

c. No complex crime of Estafa thru falsification of a private document, e.g.,

receipts used by a private business enterprise because the elements of damage are the
same to both felony.

d. Rebellion may not be complex with common crimes because of the

absorption doctrine. Common crimes committed not in furtherance of rebellion are
treated as separate and distinct felonies.

Art. 49. Penalty to be imposed upon the principals when the crime committed is
different from that intended. (Error en personae only) — In cases in which the felony
committed is different from that which the offender intended to commit, the following
rules shall be observed:
1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense, which the accused intended to commit, the penalty
corresponding to the latter shall be imposed in its maximum period.
2. If the penalty prescribed for the felony committed is lower than that
corresponding to the one, which the accused intended to commit, the penalty for the
former shall be imposed in its maximum period.
3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also constitute an attempt or
frustration of another crime, if the law prescribes a higher penalty for either of the latter
offenses, in which case the penalty provided for the attempted or the frustrated crime
shall be imposed in its maximum period.

Page 86 of 125
 ANNOTATIONS
a. ABERATIO ICTUS --- which means mistake in the blow, characterized
by aiming at one but hitting the other due to imprecision in the blow. [PP v. Sabalones,
et al., 31 Aug. 1998]

b. PRAETER INTENTIONEM --- See also Par. 3, Art. 13, lack of intent to
commit so grave a wrong.

c. ERROR EN PERSONAE --- Mistake in the identity. [Evident

premeditation does not apply in error en personae, but it does apply in treachery.]

d. The preceding paragraphs (a), (b), and (c) are covered in the first
portion of Art. 4

e. Simplified rule: (Art. 49) Apply the maximum of the lesser penalty. Art.
48 (complex crimes) imposes the penalty for the more serious crime in its maximum
period.

f. Art. 49 applies only in (a) Error en personae.

Art. 50. Penalty to be imposed upon principals of a frustrated crime. — The

penalty next lower in degree than that prescribed by law for the consummated felony
shall be imposed upon the principal in a frustrated felony.

Art. 51. Penalty to be imposed upon principals of attempted crimes. — A penalty

lower by two degrees than that prescribed by law for the consummated felony shall be
imposed upon the principals in an attempt to commit a felony.

Art. 52. Penalty to be imposed upon accomplices in consummated crime. — The

penalty next lower in degree than that prescribed by law for the consummated shall be
imposed upon the accomplices in the commission of a consummated felony.

Art. 53. Penalty to be imposed upon accessories to the commission of a

consummated felony. — The penalty lower by two degrees than that prescribed by law
for the consummated felony shall be imposed upon the accessories to the commission
of a consummated felony.

Art. 54. Penalty to imposed upon accomplices in a frustrated crime. — The penalty
next lower in degree than prescribed by law for the frustrated felony shall be imposed
upon the accomplices in the commission of a frustrated felony.

Art. 55. Penalty to be imposed upon accessories of a frustrated crime. — The

penalty lower by two degrees than that prescribed by law for the frustrated felony shall
be imposed upon the accessories to the commission of a frustrated felony.

Art. 56. Penalty to be imposed upon accomplices in an attempted crime. — The

penalty next lower in degree than that prescribed by law for an attempt to commit a
felony shall be imposed upon the accomplices in an attempt to commit the felony.

Page 87 of 125
Art. 57. Penalty to be imposed upon accessories of an attempted crime. — The
penalty lower by two degrees than that prescribed by law for the attempted felony shall
be imposed upon the accessories to the attempt to commit a felony.

TABULAR REPRESENTATION [See also Art. 60, infra.]

Consummated Frustrated Attempted
Principal Let x be the penalty x - 1 degree x – 2 degrees
for the principal in a
consummated
felony.
Accomplice x – 1 degree x – 2 degrees x – 3 degrees
Accessory [Art. 16 -- x – 2 degrees x- 3 degrees x – 4 degrees
- no accessory in
light felonies.]

Art. 58. Additional penalty to be imposed upon certain accessories. — Those

accessories falling within the terms of paragraphs 3 of Article 19 of this Code who
should act with abuse of their public functions, shall suffer the additional penalty of
absolute perpetual disqualification if the principal offender shall be guilty of a grave
felony, and that of absolute temporary disqualification if he shall be guilty of a less grave
felony.

Art. 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible [2nd par. of Art. 4]. — When the
person intending to commit an offense has already performed the acts for the execution
of the same but nevertheless the crime was not produced by reason of the fact that the
act intended was by its nature one of impossible accomplishment or because the means
employed by such person are essentially inadequate to produce the result desired by
him, the court, having in mind the social danger and the degree of criminality shown by
the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to
500 pesos. [Impossible crime --- 2nd portion of Art. 4]

Art. 60. Exception to the rules established in Articles 50 to 57. — The

provisions contained in Articles 50 to 57, inclusive, of this Code shall not be applicable
to cases in which the law expressly prescribes the penalty provided for a frustrated or
attempted felony, or to be imposed upon accomplices or accessories.
a. Examples:
Art. 268, Slight Illegal Detention --- One who furnishes the place for
detention. Same penalty as that imposed upon the principal.
Art. 346, Acts of Lasciviousness, Rape, Seduction, Corruption of Minors,
White Slave Trade, and Abduction. --- liability of ascendants, guardians, teachers, or
other persons entrusted with the custody of the offended party.

Art. 61. Rules for graduating penalties. — For the purpose of graduating the
penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code,
are to be imposed upon persons guilty as principals of any frustrated or attempted
felony, or as accomplices or accessories, the following rules shall be observed:
1. When the penalty prescribed for the felony is single and indivisible, the
penalty next lower in degrees shall be that immediately following that indivisible
penalty in the respective graduated scale prescribed in Article 71 of this Code.

Page 88 of 125
 2. When the penalty prescribed for the crime is composed of two indivisible
penalties, or of one or more divisible penalties to be impose to their full extent,
the penalty next lower in degree shall be that immediately following the lesser of
the penalties prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is composed of one or two
indivisible penalties and the maximum period of another divisible penalty, the
penalty next lower in degree shall be composed of the medium and minimum
periods of the proper divisible penalty and the maximum periods of the proper
divisible penalty and the maximum period of that immediately following in said
respective graduated scale.
4. when the penalty prescribed for the crime is composed of several periods,
corresponding to different divisible penalties, the penalty next lower in degree
shall be composed of the period immediately following the minimum prescribed
and of the two next following, which shall be taken from the penalty prescribed, if
possible; otherwise from the penalty immediately following in the above
mentioned respective graduated scale.
5. When the law prescribes a penalty for a crime in some manner not
especially provided for in the four preceding rules, the courts, proceeding by
analogy, shall impose corresponding penalties upon those guilty as principals of
the frustrated felony, or of attempt to commit the same, and upon accomplices
and accessories.

PENALTIES

Divisible penalties are divided into three [3] equal portions. Each portion is known
as a period. If there is an ordinary mitigating circumstance [OMC], the penalty is to be
lowered by one period for every OMC, except where Art. 64, paragraph 5 applies.
If there is an aggravating circumstance, the penalty should be increased by one
period for every attendant aggravating circumstance, but not to exceed the maximum of
the penalty prescribed for the crime committed.
If there is neither aggravating nor mitigating circumstance, the prescribed penalty
should be imposed, in its medium period where no period is mentioned.
When both mitigating and aggravating circumstances are present, the court shall
reasonably offset those of one class against the other according to their relative weight.
[Art. 64]

A degree, on the other hand is a graduation of penalties. The graduated scales of

penalties are provided in Art. 71, thus:
SCALE NO. 1
1. Death (Disbarred by R.A. 9346, June 24, 2006)
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional
6. Arresto mayor
7. Destierro (same as prision correccional)
8. Arresto menor
9. Public censure
10. Fine (see Art. 26)

SCALE NO. 2

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 1. Perpetual absolute disqualification
2. Temporary absolute disqualification
3. Suspension from public office, the right to vote and be voted for,
and the right to follow a profession or calling
4. Public censure
5. Fine (See Art. 26 page 77)

Each penalty in the above scales is a DEGREE IN ITSELF.

Thus, one degree lower than death, the highest degree, is reclusion perpetua.

Many penalties, however, are composed of periods. Thus, where the penalty for
a crime is prision correccional in its minimum and medium periods. It is composed of
two [2] periods. One degree lower is just the next lower 2 periods, or arresto mayor in its
medium and maximum periods.
On the other hand, before the advent of GONZALES, if the penalty for a crime is,
say, reclusion temporal in its medium period the same is composed of one period only.
The penalty one degree lower is just the next lower period or reclusion temporal
minimum [See People vs. Gonzales, 10 Apr. 1946, infra, which is governing.].
Finally, if the penalty is reclusion temporal in its maximum period to death, as a special
case, this penalty is considered composed of 3 periods. One degree, lower is just the
next lower 3 periods or prision mayor maximum to reclusion temporal medium. To
illustrate:
1. Penalty composed of 3 periods: say, reclusion temporal maximum to death.
1. Death - - - - - - - - - prescribed
2. Reclusion perpetua - - - - penalty
3. Reclusion temporal -- max
med
min one degree lower
4. Prisionmayor ------ max
med
min two degrees lower
5. Prision correccional-- max
med
min

6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure
10. Fine

2. Penalty composed of two periods:

4. Prision mayor --------max

med
min
5. Pris. Correccional----max
med prescribed
min penalty
6. Arresto mayor---------max
med one degree lower

Page 90 of 125
 min

3. Penalty composed of one period:

1. Death
2. Reclusion perpetua
3. Reclusion temporal---max
med -- Prescribed penalty
min

4. Prision mayor--------max
Prision correccional max --- One degree lower [Gonzales Doctrine]

G.R. Nos. L-4215-16 April 17, 1953

PEOPLE OF THE PHIL. vs. LEONARDO DOSAL
092 Phil 877

FIRST DIVISION
SYLLABUS
1. CRIMINAL LAW; PENALTIES, COMPUTATION OF. —
In determining the penalty next lower in degree for the purpose of applying the
law on indeterminate sentence, while some of the justices believe that said penalty
immediately lower should be prision mayor in its medium degree, the majority equally
hold that following the doctrine laid down in the case of People vs. Gonzales (10 Apr.
1946), the penalty next lower in degree to prision mayor in its maximum degree is
and should be prision correccional in its maximum degree.
The penalty in criminal case No. 2109 (now L-4215) should therefore be not less
than four (4) years and nine (9) months and eleven (11) days of prision correccional and
not more than ten (10) years, eight (8) months and one (1) day of prision mayor. The
indemnity to the heirs of the deceased Benito Fernandez should be increased to
P6,000. With these modifications, the decision appealed from is hereby affirmed, with
costs.

LEONIDAS EPIFANIO Y LAZARO, Petitioner

---versus---
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. NO. 157057, 2007 Jun 26, 3rd Division)

Accordingly, the imposable penalty for the crime of attempted murder, following
Article 51 of the Revised Penal Code, is prision correccional in its maximum period to
prision mayor in its medium period. Applying the Indeterminate Sentence Law, the
minimum of the penalty to be imposed should be within the range of arresto mayor in its
maximum period to prision correccional in its medium period, and the maximum of the
penalty to be imposed should be within the range of prision correccional in its maximum
period to prision mayor in its medium period. Since no generic aggravating or mitigating
circumstance attended the commission of the crime of attempted murder, the penalty
should be two (2) years and four (4) months of prision correccional, as minimum; and
eight (8) years of prision mayor, as maximum.
NOTE: The crime was committed on August 15, 1990 in Samal, Davao. The
penalty then imposable for MURDER was---

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 Art. 248. Murder. — Any person who, not falling within the provisions of Article
246 shall kill another, shall be guilty of murder and shall be punished by reclusion
temporal in its maximum period to death, if committed with any of the following
attendant circumstances:

=========================================================

HOW TO DIVIDE PENALTIES COMPOSED OF PERIODS IN THREE EQUAL

PERIODS

1. Prescribed penalty: Prision mayor maximum to reclusion temporal medium. [3-

period penalty]

1. Get the range of the penalty: 10 y and 1d to 17y and 4m

2. Subtract the minimum from the maximum

17y 4m
- 10y [do not include the day]
7y 4m

3. Divide the range by 3

7y 4m or 88 m 88 m  3 = 29 m and 10 d or 2y 5m 10d

4. min 10y 1d to 12y 5m 10d

med 12y 5m 11d to 14y 10m 20d
max 14y 10m 21d to 17y 4m 00d

2. Prescribed penalty: prision correccional in its minimum and medium periods.

[2-period penalty]

1. Range --- 6m 1d to 4y 2m

2. Subtract 4y 2m - 6m [do not include the day] = 3y 8m

3. 3y 8m  3 = 1y 2m 20d

4. min 6m 1d to 1y 8m 20d
med 1y 8m 21d to 2y 11m 10d
max 2y 11m 11d to 4y 2m 00d

3. Prescribed penalty: Reclusion temporal medium [1-period penalty]

1. 14 years 8 months 1 day to 17 years 4 months

2. 17y 4m - 14y 8m = 2 years and 8 months

3. 2 year and 8 months divided by 3 = 10 months 20 days

4. min 14y 8m 1d to 15y 6m 20d

Page 92 of 125
 med 15y 6m 21d to 16y 5m 10d
max 16y 5m 11d to 17y 4m 00d

TABULATION OF THE PROVISIONS OF THE CHAPTER

Penalty Penalty to be Penalty to be Penalty to be Penalty to

prescribed for imposed upon imposed upon imposed upon the be imposed
the crime the principal in the principal in accessory in a upon the
a frustrated an attempted frustrated crime, accessory in
crime, and the crime, the and the accompli- an
accomplice in accessory in the ces in an attempted
a consummated attempted crime
consummated crime, and the crime
crime accomplices in a
frustrated crime
First Death Reclusion Reclusion Prision mayor Prision
Case perpetua temporal correccional

Second Reclusion Reclusion Prision mayor Prision Arresto

Case perpetua to temporal Correccional mayor
death
Third Reclusion Prision mayor Prision Arresto mayor in Fine and
case temporal in in its maximum correccional in its maximum arresto
its maximum period to its maximum period to prision mayor in its
period to reclusion period to prision correccional in minimum
death temporal in its mayor in its its medium and medium
medium medium period. period. periods.
period.
Fourth Prision mayor Prision Arresto mayor in Fine and arresto Fine
Case in its correccional in its maximum mayor in its
maximum its maximum period to prision minimum and
period to period to correccional in medium periods.
reclusion prision mayor its medium
temporal in in its medium period.
its medium period.
period.

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

Art. 62. Effect of the attendance of mitigating or aggravating circumstances

and of habitual delinquency. — Mitigating or aggravating circumstances and habitual
delinquency shall be taken into account for the purpose of diminishing or increasing the
penalty in conformity with the following rules:
1. Aggravating circumstances, which in themselves constitute a crime
specially punishable by law or which are included by the law in defining a crime
and prescribing the penalty therefor shall not be taken into account for the
purpose of increasing the penalty.

Page 93 of 125
 1(a). When in the commission of the crime, advantage was taken by the
offender of his public position, the penalty to be imposed shall be in its maximum
regardless of mitigating circumstances.
The, maximum penalty shall be imposed if the offense was committed by
any person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating, or mutually helping one another for
purposes of gain in the commission of any crime.

2. The same rule shall apply with respect to any aggravating circumstance
inherent in the crime to such a degree that it must of necessity accompany the
commission thereof.
3. Aggravating or mitigating circumstances which arise from the moral
attributes of the offender, or from his private relations with the offended party, or
from any other personal cause, shall only serve to aggravate or mitigate the
liability of the principals, accomplices and accessories as to whom such
circumstances are attendant.
4. The circumstances which consist in the material execution of the act, or in
the means employed to accomplish it, shall serve to aggravate or mitigate the
liability of those persons only who had knowledge of them at the time of the
execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following effects.
(a) Upon a third conviction the culprit shall be sentenced to the penalty
provided by law for the last crime of which he be found guilty and to the
additional penalty of prision correccional in its medium and maximum
periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the
penalty provided for the last crime of which he be found guilty and to the
additional penalty of prision mayor in its minimum and medium periods;
and
(c) Upon a fifth or additional conviction, the culprit shall be sentenced
to the penalty provided for the last crime of which he be found guilty and to
the additional penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two penalties to be
imposed upon the offender, in conformity herewith shall in no case exceed 30 years.
For the purpose of this article, a person shall be deemed to be habitual
delinquent, if within a period of ten years from the date of his release or last conviction
[Whichever applies.] of the crimes of serious or less serious physical injuries, robo,
hurto(theft), estafa, or falsification, he is found guilty of any of said crimes a third time or
oftener. [FLERTS]

ANNOTATIONS

(a) ATM: [FLERTS] Falsification, Less serious physical injuries, Estafa,

Robbery, Theft (hurto), Serious physical injuries.

(b) The accused is sentenced to the penalty provided by law for the last
crime of which he was found guilty and to an additional penalty.

(c) Habitual delinquency applies to all stages of execution.

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 (d) The additional penalties imposed for habitual delinquency by virtue of
the provisions of article 62 of the Revised Penal Code, are neither cruel nor unusual.
[People vs. Madrano (25 Aug. 1928)] [People vs. Montera (11 Aug. 1931)].

(d) Habitual delinquency is not, however, a crime in itself; it is only a factor

in determining a total penalty. [PP v. Villaluz, 6 Aug. 1975] Therefore, its possible
imposition, which may possibly increase the penalty to more than six (6) years, does not
affect the jurisdiction of the municipal court. Provided, that the crime charged is within
the competence of the municipal court.

(e) Habitual delinquency requires that the second crime was committed
after the first conviction, the third, after the second, the fourth, after the third, and so on
(People v. Gervasio Santiago, 14 Nov. 1930) and hence, the date of commission is an
indispensable allegation. [Cuenca vs. Superintendent of the Correctional Institution For
Women, December 30, 1961]

(f) In imposing the additional penalty, recidivism should not be taken into
account the same being inherent in habitual delinquency. [People vs. Manalo, May
25, 1956]

(g) A general statement of habitual delinquency is not sufficient. The

following must be alleged with specificity: (1) Dates of the commission of the previous
crimes; (2) Date the last conviction or release; and (3) Date of the other previous
convictions or release.

Art. 63. Rules for the application of indivisible penalties. — In all cases in which
the law prescribes a single indivisible penalty, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have attended the
commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and
there is no aggravating circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating
circumstances and there is no aggravating circumstance, the lesser penalty shall
be applied.
4. When both mitigating and aggravating circumstances attended the
commission of the act, the court shall reasonably allow them to offset one
another in consideration of their number and importance, for the purpose of
applying the penalty in accordance with the preceding rules, according to the
result of such compensation.

Art. 64. Rules for the application of penalties, which contain three periods. — In
cases in which the penalties prescribed by law contain three periods, whether it be a
single divisible penalty or composed of three different penalties, each one of which
forms a period in accordance with the provisions of Articles 76 and 77, the court shall
observe for the application of the penalty the following rules, according to whether there
are or are not mitigating or aggravating circumstances:

Page 95 of 125
 1. When there are neither aggravating nor mitigating circumstances, they
shall impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of the
act, they shall impose the penalty in its minimum period.
3. When an aggravating circumstance is present in the commission of the
act, they shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the
court shall reasonably offset those of one class against the other according to
their relative weight.
5. When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the
number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating
circumstances, the courts shall not impose a greater penalty than that prescribed
by law, in its maximum period.
7. Within the limits of each period, the court shall determine the extent of the
penalty according to the number and nature of the aggravating and mitigating
circumstances and the greater and lesser extent of the evil produced by the
crime.

ANNOTATIONS

a. Art. 64 is only applicable to divisible penalties. It does not apply to (1)

Single and indivisible penalties; (2) penalties prescribed by special law, except
where the special law itself provides for its application; (3) fines; and (4) culpa.

Art. 65. Rule in cases in which the penalty is not composed of three periods. — In
cases in which the penalty prescribed by law is not composed of three periods, the
courts shall apply the rules contained in the foregoing articles, dividing into three equal
portions of time included in the penalty prescribed, and forming one period of each of
the three portions.

Art. 66. Imposition of fines. — In imposing fines the courts may fix any amount
within the limits established by law; in fixing the amount in each case attention shall be
given, not only to the mitigating and aggravating circumstances, but more particularly to
the wealth or means of the culprit. (See Art. 26)

Art. 67. Penalty to be imposed when not all the requisites of exemption of the
fourth circumstance of Article 12 (PURE ACCIDENT) are present.— When all the
conditions required in circumstances Number 4 of Article 12 of this Code to exempt from
criminal liability are not present, the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period shall be imposed upon the culprit if he shall
have been guilty of a grave felony, and arresto mayor in its minimum and medium
periods, if of a less grave felony.(See Art.9)
(See: Juvenile Justice and Welfare Act of 2006, R.A. 9344, 23 April 2006)
Art. 68. Penalty to be imposed upon a person under eighteen years of age. —
When the offender is a minor under eighteen years and his case is one coming under

Page 96 of 125
the provisions of the paragraphs next to the last of Article 80 of this Code, the following
rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he acted with
discernment, a discretionary penalty shall be imposed, but always lower by two
degrees at least than that prescribed by law for the crime which he committed.
2. Upon a person over fifteen and less than eighteen years of age the
penalty next lower than that prescribed by law shall be imposed, but always in
the proper period.

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable.
— A penalty lower by one or two degrees than that prescribed by law shall be imposed
if the deed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases
mentioned in Article 11 and 12, provided that the majority of such conditions be present.
The courts shall impose the penalty in the period which may be deemed proper, in view
of the number and nature of the conditions of exemption present or lacking.
1. In PP v. Jaurigue, 21 Feb. 1946, where the court appreciated three
OMCs, viz: voluntary surrender, immediate vindication of a grave offense and
praeterintentionem, the penalty was lowered by two degrees in consonance with the
provision of Art. 69. But note that none of the OMCs mentioned falls under Art. 11 or
Art. 12. N.B. --- See Art. 64 (5)

Art. 70. Successive service of sentence. — When the culprit has to serve two or
more penalties, he shall serve them simultaneously if the nature of the penalties will so
permit otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be
followed so that they may be executed successively or as nearly as may be possible,
should a pardon have been granted as to the penalty or penalties first imposed, or
should they have been served out.
For the purpose of applying the provisions of the next preceding paragraph the
respective severity of the penalties shall be determined in accordance with the following
scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 temporal absolute disqualification.
11. Suspension from public office, the right to vote and be voted for, the right
to follow a profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule next preceding, the maximum duration
of the convict's sentence shall not be more than three-fold the length of time
corresponding to the most severe of the penalties imposed upon him. No other penalty

Page 97 of 125
to which he may be liable shall be inflicted after the sum total of those imposed equals
the same maximum period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule the duration of perpetual penalties ( penaperpetua)
shall be computed at thirty years. (As amended).

Art. 71. Graduated scales. — In the case in which the law prescribed a penalty
lower or higher by one or more degrees than another given penalty, the rules prescribed
in Article 61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in which is
comprised the given penalty.
The courts, in applying such lower or higher penalty, shall observe the following
graduated scales:
SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine. (See Art. 26)
SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be
voted for, the right to follow a profession or calling,
4. Public censure,
5. Fine.

Art. 72. Preference in the payment of the civil liabilities. — The civil liabilities of a
person found guilty of two or more offenses shall be satisfied by following the
chronological order of the dates of the judgments rendered against him, beginning with
the first in order of time.

Section Three. — Provisions common in the last two preceding sections

Art. 73. Presumption in regard to the imposition of accessory penalties. —

Whenever the courts shall impose a penalty which, by provision of law, carries with it
other penalties, according to the provisions of Articles 40, 41, 42, 43 and 44 of this
Code, it must be understood that the accessory penalties are also imposed upon the
convict. (See also Art. 34.)

Art. 74. Penalty higher than reclusion perpetua in certain cases. — In cases in
which the law prescribes a penalty higher than another given penalty, without specially
designating the name of the former, if such higher penalty should be that of death, the
same penalty and the accessory penalties of Article 40, shall be considered as the next
higher penalty.

Page 98 of 125
Art. 75. Increasing or reducing the penalty of fine by one or more degrees. — it
may be necessary to increase or reduce the penalty of fine by one or more degrees, it
shall be increased or reduced, respectively, for each degree, by one-fourth of the
maximum amount prescribed by law, without however, changing the minimum.
The same rules shall be observed with regard of fines that do not consist of a
fixed amount, but are made proportional.

Art. 76. Legal period of duration of divisible penalties. — The legal period of
duration of divisible penalties shall be considered as divided into three parts, forming
three periods, the minimum, the medium, and the maximum in the manner shown in
the following table:

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES

AND THE TIME INCLUDED IN EACH OF THEIR PERIODS

Penalties Time included Time included Time included Time included

in the penalty in its minimum in its in its maximum
in its entirety period medium period period

Reclusion From 12 years From 12 years From 14 years, From 17 years,

temporal and 1 day to 20 and 1 day to 14 8 months and 1 4 months and 1
years. years and 8 day to 17 years day to 20
months. and 4 months. years.
Prision mayor, From 6 years From 6 years From 8 years From 10 years
absolute and 1 day to 12 and 1 day to 8 and 1 day to 10 and 1 day to 12
disqualification years. years. years. years
and special
temporary
disqualification.
Prision From 6 months From 6 months From 2 years, From 4 years, 2
correccional, and 1 day to 6 and 1 day to 2 4 months and 1 months and 1
suspension and years. years and 4 day to 4 years day to 6 years
destierro. months. and 2 months.
Arresto mayor From 1 month From 1 to 2 From 2 months From 4 months
and 1 day to 6 months. and 1 day to 4 and 1 day to 6
months. months. months.
Arresto menor From 1 to 30 From 1 to 10 From 11 days From 21 days
days. days. to 20 days. to 30 days.

Art. 77. When the penalty is a complex one composed of three distinct penalties.
— In cases in which the law prescribes a penalty composed of three distinct penalties,
each one shall form a period; the lightest of them shall be the minimum the next the
medium, and the most severe the maximum period.
Whenever the penalty prescribed does not have one of the forms specially
provided for in this Code, the periods shall be distributed, applying by analogy the
prescribed rules.

Chapter Five
EXECUTION AND SERVICE OF PENALTIES
Section One. — General Provisions

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Art. 78. When and how a penalty is to be executed. — No penalty shall be
executed except by virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed by law, nor
with any other circumstances or incidents than those expressly authorized thereby.
In addition to the provisions of the law, the special regulations prescribed for the
government of the institutions in which the penalties are to be suffered shall be
observed with regard to the character of the work to be performed, the time of its
performance, and other incidents connected therewith, the relations of the convicts
among themselves and other persons, the relief which they may receive, and their diet.
The regulations shall make provision for the separation of the sexes in different
institutions, or at least into different departments and also for the correction and reform
of the convicts. (See Circular No. 63-97, page 128)
Art. 79. Suspension of the execution and service of the penalties in case of
insanity. — When a convict shall become insane or an imbecile after final sentence has
been pronounced, the execution of said sentence shall be suspended only with regard
to the personal penalty, the provisions of the second paragraph of circumstance number
1 of article 12 being observed in the corresponding cases.
If at any time the convict shall recover his reason, his sentence shall be
executed, unless the penalty shall have prescribed in accordance with the provisions of
this Code.
The respective provisions of this section shall also be observed if the insanity or
imbecility occurs while the convict is serving his sentence.

Art. 80. Repealed and modified by Chapter III of P.D. No. 603, The Child and
Youth Welfare Code of the Philippines, as amended by P.D. No. 1179 and P.D. No.
1210, promulgated 15 August 1977 and 11 Oct. 1978.
SEE LATEST: R. A. 9344, JUVENILE JUSTICE AND WELFARE ACT, 23 April
2006. The above discussion no longer holds true.

Section Two. — Execution of principal penalties.

Art. 81. ~ Art. 85. [No more death penalty in our jurisdiction, R.A. 9346]
Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision
correccional and arresto mayor. — The penalties of reclusion perpetua, reclusion
temporal, prision mayor, prision correccional and arresto mayor, shall be executed and
served in the places and penal establishments provided by the Administrative Code in
force or which may be provided by law in the future. (See: pages 126 & 127 )

Art. 87. Destierro. — Any person sentenced to destierro shall not be permitted to
enter the place or places designated in the sentence, nor within the radius therein
specified, which shall be not more than 250 and not less than 25 kilometers from the
place designated.

Art. 88. Arresto menor. — The penalty of arresto menor shall be served in the
municipal jail, or in the house of the defendant himself under the surveillance of an
officer of the law, when the court so provides in its decision, taking into consideration
the health of the offender and other reasons which may seem satisfactory to it. (See:
pages 126 & 127)

Isabelita Reodica vs. CA, et al. July 8, 1998.

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 DECISION
SECOND DIVISION
DAVIDE, JR., J :
xxx xxxxxx.
We agree with both petitioner and the OSG that the penalty of six months of
arresto mayor imposed by the trial court and affirmed by respondent Court of Appeals is
incorrect. However, we cannot subscribe to their submission that the penalty of arresto
menor in its maximum period is the proper penalty.
Article 365 of the Revised Penal Code provides: Imprudence and negligence. -
Any person who, by reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in
its maximum period to prision correccional in its medium period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum and medium
periods shall be imposed; if it would have constituted a light felony, the penalty of
arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which
would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its
medium and maximum periods; if it would have constituted a less serious felony, the
penalty of arresto mayor in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only resulted in
damage to the property of another, the offender shall be punished by a fine ranging
from an amount equal to the value of said damages to three times such value, but which
shall in no case be less than 25 pesos.
A fine not exceeding 200 pesos and censure shall be imposed upon any person
who, by simple imprudence or negligence, shall cause some wrong which, if done
maliciously, would have constituted a light felony.
In the imposition of these penalties, the courts shall exercise their sound
discretion, without regard to the rules prescribed in Article 64.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those
provided in the first two paragraphs of this article, in which case the courts shall impose
the penalty next lower in degree than that which should be imposed in the period which
they may deem proper to apply.
According to the first paragraph of the aforequoted Article, the penalty for
reckless imprudence resulting in slight physical injuries, a light felony, is arresto menor
in its maximum period, with a duration of 21 to 30 days. If the offense of slight physical
injuries is, however, committed deliberately or with malice, it is penalized with arresto
menor under Article 266 of the Revised Penal Code, with a duration of 1 day to 30 days.
Plainly, the penalty then under Article 266 may be either lower than or equal to the
penalty prescribed under the first paragraph of Article 365. This being the case, the
exception in the sixth paragraph of Article 365 applies. Hence, the proper penalty for
reckless imprudence resulting in slight physical injuries is public censure, this being the
penalty next lower in degree to arresto menor.
As to reckless imprudence resulting in damage to property in the amount of
P8,542.00, the third paragraph of Article 365, which provides for the penalty of fine,
does not apply since the reckless imprudence in this case did not result in damage to
property only. What applies is the first paragraph of Article 365, which provides for
arresto mayor in its minimum and medium periods (1 month and 1 day to 4 months) for
an act committed through reckless imprudence which, had it been intentional, would
have constituted a less grave felony. Note that if the damage to the extent of P8,542.00
were caused deliberately, the crime would have been malicious mischief under Article

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329 of the Revised Penal Code, and the penalty would then be arresto mayor in its
medium and maximum periods (2 months and 1 day to 6 months which is higher than
that prescribed in the first paragraph of Article 365). If the penalty under Article 329
were equal to or lower than that provided for in the first paragraph, then the sixth
paragraph of Article 365 would apply, i.e., the penalty next lower in degree, which is
arresto menor in its maximum period to arresto mayor in its minimum period or
imprisonment from 21 days to 2 months. Accordingly, the imposable penalty for reckless
imprudence resulting in damage to property to the extent of P8,542.00 would be arresto
mayor in its minimum and medium periods, which could be anywhere from a minimum
of 1 month and 1 day to a maximum of 4 months, at the discretion of the court, since the
fifth paragraph of Article 365 provides that in the imposition of the penalties therein
provided "the courts shall exercise their sound discretion without regard to the rule
prescribed in article 64."
II. Classification of the Quasi Offense in Question.
Felonies are committed not only by means of deceit (dolo), but likewise by
means of fault (culpa). There is deceit when the wrongful act is performed with
deliberate intent; and there is fault when the wrongful act results from imprudence,
negligence, lack of foresight or lack of skill.
As earlier stated, reckless imprudence resulting in slight physical injuries is
punishable by public censure only. Article 9, paragraph 3, of the Revised Penal Code
defines light felonies as infractions of law carrying the penalty of arresto menor or a fine
not exceeding P200.00, or both. Since public censure is classified under Article 25 of
the Code as a light penalty, and is considered under the graduated scale provided in
Article 71 of the same Code as a penalty lower than arresto menor, it follows that the
offense of reckless imprudence resulting in slight physical injuries is a light felony.
On the other hand, reckless imprudence also resulting in damage to property is,
as earlier discussed, penalized with arresto mayor in its minimum and medium periods.
Since arresto mayor is a correctional penalty under Article 25 of the Revised Penal
Code, the quasi offense in question is a less grave felony - not a light felony as claimed
by petitioner.
III. Applicability of the Rule on Complex Crimes.
Since criminal negligence may, as here, result in more than one felony, should
Article 48 of the Revised Code on complex crimes be applied? Article 48 provides as
follows:
ART. 48. Penalty for complex crimes. - When a single act constitutes two or
more grave or less grave felonies, or when an offense is necessary a means for
committing the other, the penalty for the most serious crime shall be imposed, the same
to be applied in its maximum period. Clearly, if a reckless, imprudent or negligent act
results in two or more grave or less grave felonies, a complex crime is committed.
However, in Lontok v. Gorgonio, (30 Apr. 1979) (But see: PP v. De los Santos, March
27, 2001, page 80) this Court declared that where one of the resulting offenses in
criminal negligence constitutes a light felony, there is no complex crime, thus:
Applying article 48, it follows that if one offense is light, there is no complex
crime. The resulting offenses may be treated as separate or the light felony may be
absorbed by the grave felony. Thus, the light felonies of damage to property and slight
physical injuries, both resulting from a single act of imprudence, do not constitute a
complex crime. They cannot be charged in one information. They are separate offenses
subject to distinct penalties (People vs. Turla, 14 Feb. 1927; See People vs. Estipona,
70 Phil. 513).
Where the single act of imprudence resulted in double less serious physical
injuries, damage to property amounting to P10,000 and slight physical injuries, a chief of

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police did not err in filing a separate complaint for the slight physical injuries and
another complaint for the lesions menos graves and damage to property [Arcaya vs.
Teleron, L-37446, May 31, 1974, 57 SCRA 363, 365].
Hence, the trial court erred in considering the following felonies as a complex
crime: the less grave felony of reckless imprudence resulting in damage to property in
the amount of P8,542.00 and the light felony of reckless imprudence resulting in
physical injuries.

IV. The Right to Assail the Duplicity of the Information.

Following Lontok, the conclusion is inescapable here, that the quasi offense of
reckless imprudence resulting in slight physical injuries should have been charged in a
separate information because it is not covered by Article 48 of the Revised Penal Code.
However, petitioner may no longer question, at this stage, the duplicitous character of
the information, i.e., charging two separate offenses in one information, to wit: (1)
reckless imprudence resulting in damage to property; and (2) reckless imprudence
resulting in slight physical injuries. This defect was deemed waived by her failure to
raise it in a motion to quash before she pleaded to the information. 28 Under Section 3,
Rule 120 of the Rules of Court, when two or more offenses are charged in a single
complaint or information and the accused fails to object to it before trial, the court may
convict the accused of as many offenses as are charged and proved and impose on him
the penalty for each of them.
V. Which Court Has Jurisdiction Over the Quasi Offenses in Question.
The jurisdiction to try a criminal action is to be determined by the law in force at
the time of the institution of the action, unless the statute expressly provides, or is
construed to the effect that it is intended to operate as to actions pending before its
enactment. 30
At the time of the filing of the information in this case, the law in force was Batas
PambansaBlg. 129, otherwise known as "The Judiciary Reorganization Act of 1980."
Section 32(2) 31 thereof provided that except in cases falling within the exclusive
original jurisdiction of the Regional Trial Courts and of the Sandiganbayan, the
Metropolitan Trial Courts (MeTCs), Municipal Trial Courts (MTCs), and Municipal Circuit
Trial Courts (MCTCs) had exclusive original jurisdiction over "all offenses punishable
with imprisonment of not exceeding four years and two months, or a fine of not more
than four thousand pesos, or both fine and imprisonment, regardless of other imposable
accessory or other penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value or amount thereof."
The criminal jurisdiction of the lower courts was then determined by the duration
of the imprisonment and the amount of fine prescribed by law for the offense charged.
The question thus arises as to which court has jurisdiction over offenses punishable by
censure, such as reckless imprudence resulting in slight physical injuries.

In Uy Chin Hua v. Dinglasan, (30 June1950) this Court found that a lacuna (gap;
hiatus) existed in the law as to which court had jurisdiction over offenses penalized with
destierro, the duration of which was from 6 months and 1 day to 6 years, which was co-
extensive with prision correccional. We then interpreted the law in this wise:
Since the legislature has placed offenses penalized with arresto mayor under the
jurisdiction of justice of the peace and municipal courts, and since by Article 71 of the
Revised Penal Code, as amended by Section 3 of Commonwealth Act No. 217, it has
placed destierro below arresto mayor as a lower penalty than the latter, in the absence
of any express provision of law to the contrary it is logical and reasonable to infer from
said provisions that its intention was to place offenses penalized with destierro also

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under the jurisdiction of justice of the peace and municipal courts and not under that of
courts of first instance.
Similarly, since offenses punishable by imprisonment of not exceeding 4 years
and 2 months were within the jurisdictional ambit of the MeTCs, MTCs and MCTCs, it
follows that those penalized with censure, which is a penalty lower than arresto menor
under the graduated scale in Article 71 of the Revised Penal Code and with a duration
of 1 to 30 days, should also fall within the jurisdiction of said courts. Thus, reckless
imprudence resulting in slight physical injuries was cognizable by said courts.
As to the reckless imprudence resulting in damage to property in the amount of
P8,542.00, the same was also under the jurisdiction of MeTCs, MTCs or MCTCs
because the imposable penalty therefor was arresto mayor in its minimum and medium
periods - the duration of which was from 1 month and 1 day to 4 months.
Criminal Case No. 33919 should, therefore, be dismissed for lack of jurisdiction
on the part of the RTC of Makati.
VI. Prescription of the Quasi Offenses in Question.
Pursuant to Article 90 of the Revised Penal Code, reckless imprudence resulting
in slight physical injuries, being a light felony, prescribes in two months. On the other
hand, reckless imprudence resulting in damage to property in the amount of P8,542.00
being a less grave felony whose penalty is arresto mayor in its minimum and medium
periods, prescribes in five years.
To resolve the issue of whether these quasi offenses have already prescribed, it
is necessary to determine whether the filing of the complaint with the fiscal's office three
days after the incident in question tolled the running of the prescriptive period.
Article 91 of the Revised Penal Code provides:
ART. 91. Computation of prescription of offenses. - The period of prescription
shall commence to run from the day on which the crime is discovered by the offended
party, the authorities, or their agents, and shall be interrupted by the filing of the
complaint or information, and shall commence to run again when such proceedings
terminate without the accused being convicted or acquitted, or are unjustifiably stopped
by any reason not imputable to him. (emphasis supplied)
Notably, the aforequoted article, in declaring that the prescriptive period "shall be
interrupted by the filing of the complaint or information," does not distinguish
whether the complaint is filed for preliminary examination or investigation only or
for an action on the merits. Thus, in Francisco v. Court of Appeals and People v.
Cuaresma, this Court held that the filing of the complaint even with the fiscal's office
suspends the running of the statute of limitations.
We cannot apply Section 9 of the Rule on Summary Procedure, which provides
that in cases covered thereby, such as offenses punishable by imprisonment not
exceeding 6 months, as in the instant case, "the prosecution commences by the filing of
a complaint or information directly with the MeTC, RTC or MCTC without need of a prior
preliminary examination or investigation; provided that in Metropolitan Manila and
Chartered Cities, said cases may be commenced only by information." However, this
Section cannot be taken to mean that the prescriptive period is interrupted only by the
filing of a complaint or information directly with said courts.
It must be stressed that prescription in criminal cases is a matter of substantive
law. Pursuant to Section 5(5), Article VIII of the Constitution, this Court, in the exercise
of its rule-making power, is not allowed to diminish, increase or modify substantive
rights. 37 Hence, in case of conflict between the Rule on Summary Procedure
promulgated by this Court and the Revised Penal Code, the latter prevails.
Neither does Zaldivia control in this instance. It must be recalled that what was
involved therein was a violation of a municipal ordinance; thus, the applicable law was

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not Article 91 of the Revised Penal Code, but Act. No. 3326, as amended, entitled "An
Act to Establish Periods of Prescription for Violations Penalized by Special Acts and
Municipal Ordinances and to Provide When Prescription Shall Begin to Run." Under,
Section 2 thereof, the period of prescription is suspended only when judicial
proceedings are instituted against the guilty party. Accordingly, this Court held that the
prescriptive period was not interrupted by the filing of the complaint with the Office of
the Provincial Prosecutor, as such did not constitute a judicial proceeding; what could
have tolled the prescriptive period there was only the filing of the information in the
proper court.
In the instant case, as the offenses involved are covered by the Revised Penal
Code, Article 91 thereof and the rulings in Francisco and Cuaresma apply. Thus, the
prescriptive period for the quasi offenses in question was interrupted by the filing of the
complaint with the fiscal's office three days after the vehicular mishap and remained
tolled pending the termination of this case. We cannot, therefore, uphold petitioner's
defense of prescription of the offenses charged in the information in this case.
WHEREFORE, the instant petition is GRANTED. The challenged decision of
respondent Court of Appeals in CA-G.R. CR No. 14660 is SET ASIDE as the Regional
Trial Court, whose decision was affirmed therein, had no jurisdiction over Criminal Case
No. 33919.
Criminal Case No. 33919 is ordered DISMISSED.
No pronouncement as to costs.

Title Four
EXTINCTION OF CRIMINAL LIABILITY
Chapter One
TOTAL EXTINCTION OF CRIMINAL LIABILITY

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally
extinguished:
1. By the death of the convict, as to the personal penalties and as to
pecuniary penalties, liability therefor is extinguished only when the death of the
offender occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;

People vs. Patriarca, Jr. September 29, 2000

Amnesty commonly denotes a general pardon to rebels for their treason or other
high political offenses, or the forgiveness which one sovereign grants to the subjects of
another, who have offended, by some breach, the law of nations. Amnesty looks
backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person released by amnesty
stands before the law precisely as though he had committed no offense.

Paragraph 3 of Article 89 of the Revised Penal Code provides that criminal

liability is totally extinguished by amnesty, which completely extinguishes the penalty
and all its effects.
In the case of People vs. Casido, [269 SCRA 360 [1997]. the difference
between pardon and amnesty was discussed, thus:

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 "Pardon is granted by the Chief Executive and as such it is a private act which
must be pleaded and proved by the person pardoned, because the courts take no
notice thereof; while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, is a public act of which the courts should take judicial notice.
Pardon is granted to one after conviction; while amnesty is granted to classes of
persons or communities who may be guilty of political offenses, generally before or after
the institution of the criminal prosecution and sometimes after conviction. Pardon looks
forward and relieves the offender from the consequences of an offense of which he has
been convicted, that is, it abolishes or forgives the punishment, and for that reason it
does 'not work the restoration of the rights to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon,' and it 'in no case
exempts the culprit from the payment of the civil indemnity imposed upon him by the
sentence' (Article 36, Revised Penal Code). While amnesty looks backward and
abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the
offense with which he is charged that the person released by amnesty stands before the
law precisely as though he had committed no offense."
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this
Code.

Art. 90. Prescription of crime. — Crimes punishable by death, reclusion perpetua

or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the
exception of those punishable by arresto mayor, which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The crime of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall be
made the basis of the application of the rules contained in the first, second paragraphs
of this article. (As amended by RA 4661, approved June 19, 1966.)

Art. 91. Computation of prescription of offenses. — The period of prescription shall

commence to run from the day on which the crime is discovered by the offended party,
the authorities, or their agents, and shall be interrupted by the filing of the complaint or
information, and shall commence to run again when such proceedings terminate without
the accused being convicted or acquitted, or are unjustifiably stopped for any reason not
imputable to him.
The term of prescription shall not run when the offender is absent from the
Philippine Archipelago. (See: Isabelita Reodica case, p. 103)

Art. 92. When and how penalties prescribe. — The penalties imposed by final
sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto
mayor, which prescribes in five years;
4. Light penalties, in one year.

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 However, in the case of AdlaidaTanega v. Masakayan, et al., En Banc, 28 Feb.
1967 --- The accused must evade sentence in order that the prescription period should
ran (Accused escapes during the term of his sentence.).
Art. 93. Computation of the prescription of penalties. — The period of prescription
of penalties shall commence to run from the date when the culprit should evade the
service of his sentence, and it shall be interrupted if the defendant should give himself
up, be captured, should go to some foreign country with which this Government has no
extradition treaty, or should commit another crime before the expiration of the period of
prescription.

Chapter Two
PARTIAL EXTINCTION OF CRIMINAL LIABILITY

Art. 94. (R.A. 10592, May 29, 2013) Partial extinction of criminal liability. –
Criminal liability is extinguished partially:
“1. By conditional pardon;
“2. By commutation of the sentence; and
“3. For good conduct allowances which the culprit may earn while he is
undergoing preventive imprisonment or serving his sentence.”
SEE ALSO: parole and probation (page 118)
Art. 95. Obligation incurred by person granted conditional pardon. — Any person
who has been granted conditional pardon shall incur the obligation of complying strictly
with the conditions imposed therein otherwise, his non-compliance with any of the
conditions specified shall result in the revocation of the pardon and the provisions of
Article 159 shall be applied to him.

Art. 96. Effect of commutation of sentence. — The commutation of the original

sentence for another of a different length and nature shall have the legal effect of
substituting the latter in the place of the former.

Art. 97. (R.A. 10592, May 29, 2013) “ART. 97. Allowance for good conduct. – The
good conduct of any offender qualified for credit for preventive imprisonment pursuant
to Article 29 of this Code, or of any convicted prisoner in any penal institution,
rehabilitation or detention center or any other local jail shall entitle him to the following
deductions from the period of his sentence:
“1. During the first two years of imprisonment, he shall be allowed a deduction of
twenty days for each month of good behavior during detention;
“2. During the third to the fifth year, inclusive, of his imprisonment, he shall be
allowed a reduction of twenty-three days for each month of good behavior during
detention;
“3. During the following years until the tenth year, inclusive, of his imprisonment,
he shall be allowed a deduction of twenty-five days for each month of good behavior
during detention;
“4. During the eleventh and successive years of his imprisonment, he shall be
allowed a deduction of thirty days for each month of good behavior during detention;
and
“5. At any time during the period of imprisonment, he shall be allowed another
deduction of fifteen days, in addition to numbers one to four hereof, for each month of
study, teaching or mentoring service time rendered.

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 “An appeal by the accused shall not deprive him of entitlement to the above
allowances for good conduct.”

Art. 98. (R.A. 10592, May 29, 2013) “ART. 98. Special time allowance for loyalty. –
A deduction of one fifth of the period of his sentence shall be granted to any prisoner
who, having evaded his preventive imprisonment or the service of his sentence under
the circumstances mentioned in Article 158 of this Code, gives himself up to the
authorities within 48 hours following the issuance of a proclamation announcing the
passing away of the calamity or catastrophe referred to in said article. A deduction of
two-fifths of the period of his sentence shall be granted in case said prisoner
chose to stay in the place of his confinement notwithstanding the existence of a
calamity or catastrophe enumerated in Article 158 of this Code.
“This Article shall apply to any prisoner whether undergoing preventive
imprisonment or serving sentence.”

Art. 99. (R.A. 10592, May 29, 2013) “ART. 99. Who grants time allowances. –
Whenever lawfully justified, the Director of the Bureau of Corrections, the Chief of the
Bureau of Jail Management and Penology and/or the Warden of a provincial, district,
municipal or city jail shall grant allowances for good conduct. Such allowances once
granted shall not be revoked.”

Title Five
CIVIL LIABILITY
Chapter One
PERSON CIVILLY LIABLE FOR FELONIES

Art. 100. Civil liability of a person guilty of felony. — Every person criminally liable
for a felony is also civilly liable.

Art. 101. Rules regarding civil liability in certain cases. — The exemption from
criminal liability established in subdivisions 1, 2, 3, 5 and 6 of article 12 and in
subdivision 4 of article 11 of this Code does not include exemption from civil liability,
which shall be enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for
acts committed by an imbecile or insane person, and by a person under nine years of
age, or by one over nine but under fifteen years of age, who has acted without
discernment, shall devolve upon those having such person under their legal authority or
control, unless it appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said insane,
imbecile, or minor shall respond with their own property, excepting property exempt
from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the persons for
whose benefit the harm has been prevented shall be civilly liable in proportion to the
benefit, which they may have received.
The courts shall determine, in sound discretion, the proportionate amount for
which each one shall be liable.
When the respective shares cannot be equitably determined, even
approximately, or when the liability also attaches to the Government, or to the majority
of the inhabitants of the town, and, in all events, whenever the damages have been

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caused with the consent of the authorities or their agents, indemnification shall be made
in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using
violence or causing the fears shall be primarily liable and secondarily, or, if there be no
such persons, those doing the act shall be liable, saving always to the latter that part of
their property exempt from execution.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of

establishments. — In default of the persons criminally liable, innkeepers, tavernkeepers,
and any other persons or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general
or special police regulation shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by
robbery or theft within their houses from guests lodging therein, or for the payment of
the value thereof, provided that such guests shall have notified in advance the
innkeeper himself, or the person representing him, of the deposit of such goods within
the inn; and shall furthermore have followed the directions which such innkeeper or his
representative may have given them with respect to the care and vigilance over such
goods. No liability shall attach in case of robbery with violence against or intimidation of
persons unless committed by the innkeeper's employees.

Art. 103. Subsidiary civil liability of other persons [VICARIOUS LIABILITY]. — The
subsidiary liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or employees in the
discharge of their duties.
Chapter Two
WHAT CIVIL LIABILITY INCLUDES
Civil Liability:
[DACILLO (En Banc), G.R. 149368, April 14, 2004]
a. P50, 000.00 --- When death occurs as a result of a crime. Requires no proof of civil
injury.
b. P25,000.00 --- with one or more generic aggravating circumstances.
[YATAR, May 19. 2004]
Rape with Homicide
a. P100, 000.00 --- Civil indemnity ex delicto.
b. P75, 000.00 Moral damages.
[LAYUGAN (En Banc), April 28, 2004]
Simple Rape
a. P50, 000.00 --- Civil indemnity.
b. P50, 000.00 --- Moral damages.

Art. 104. What is included in civil liability. — The civil liability established in Articles
100, 101, 102, and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.

Art. 105. Restitution. — How made. — The restitution of the thing itself must be
made whenever possible, with allowance for any deterioration, or diminution of value as
determined by the court.

Page 109 of 125

The thing itself shall be restored, even though it be found in the possession of a third
person who has acquired it by lawful means, saving to the latter his action against the
proper person, who may be liable to him.
This provision is not applicable in cases in which the thing has been acquired by the
third person in the manner and under the requirements which, by law, bar an action for
its recovery.

Art. 106. Reparation. — How made. — The court shall determine the amount of
damage, taking into consideration the price of the thing, whenever possible, and its
special sentimental value to the injured party, and reparation (reimbrsement) shall be
made accordingly.

Art. 107. Indemnification — What is included. — Indemnification for consequential

damages shall include not only those caused the injured party, but also those suffered
by his family or by a third person by reason of the crime.

Art. 108. Obligation to make restoration, reparation for damages, or indemnification

for consequential damages and actions to demand the same — Upon whom it devolves.
— The obligation to make restoration or reparation for damages and indemnification for
consequential damages devolves upon the heirs of the person liable.
The action to demand restoration, reparation, and indemnification likewise descends to
the heirs of the person injured.

Art. 109. Share of each person civilly liable. — If there are two or more persons
civilly liable for a felony, the courts shall determine the amount for which each must
respond.

Art. 110. Several and subsidiary liability of principals, accomplices and accessories
of a felony — Preference in payment. — Notwithstanding the provisions of the next
preceding article, the principals, accomplices, and accessories, each within their
respective class, shall be liable severally (in solidum) among themselves for their
quotas, and subsidiaries for those of the other persons liable.
The subsidiary liability shall be enforced, first against the property of the
principals; next, against that of the accomplices, and, lastly, against that of the
accessories.
Whenever the liability in solidum or the subsidiary liability has been enforced, the
person by whom payment has been made shall have a right of action against the others
for the amount of their respective shares.

Art. 111. Obligation to make restitution in certain cases. — Any person who has
participated gratuitously in the proceeds of a felony shall be bound to make restitution in
an amount equivalent to the extent of such participation.

Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

Art. 112. Extinction of civil liability. — Civil liability established in Articles 100, 101,
102, and 103 of this Code shall be extinguished in the same manner as obligations, in
accordance with the provisions of the Civil Law.

Page 110 of 125

Art. 113. Obligation to satisfy civil liability. — Except in case of extinction of his civil
liability as provided in the next preceding article the offender shall continue to be obliged
to satisfy the civil liability resulting from the crime committed by him, notwithstanding the
fact that he has served his sentence consisting of deprivation of liberty or other rights, or
has not been required to serve the same by reason of amnesty, pardon, commutation of
sentence or any other reason.

****************************************************************************************************
INDETERMINATE SENTENCE LAW
(Act 4103, as amended)

I. SPECIAL LAW:

1. X is convicted under Sec. 10, Art. II of RA 9165 (Comprehensive Dangerous

Drugs Act of 2002). The imposable penalty of imprisonment is from 12 years and 1 day
to 20 years.

The court can impose an indeterminate sentence the minimum of which is not
less than 12 years and 1 day, and the maximum is not more than 20 years.
Example: minimum – 13 years (not less than 12y 1d)
maximum – 19 years (not more than 20 y)

II. RPC [with no PMC or Art. 64(5)]

a. First, disregard the presence of any ordinary mitigating or generic aggravating

circumstance.

b. Determine the minimum of the Indeterminate Sentence, which is one degree

lower from the imposable penalty.
Example: X is convicted of a felony with the presence of 2 Mitigating
Circumstances and 1 Aggravating Circumstance. The
imposable penalty is reclusion temporal (no mention as to
period – meaning: medium)
Imposable – Reclusion Temp.
Next lower – Prision mayor

c. Apply the GAC or the OMC in fixing the max of the Indeterminate Sentence
(The GAC or the OMC has nothing to do with the minimum of the I.S.)
Indeterminate Sentence will be:
minimum – prision mayor in any of its periods or anywhere within its range
with no reference as to its period
maximum – reclusion temp minimum (12y 1d ~ 14y 8m) because of the
excess 1 M.C. [but the longest period of incarceration is only
12y 1d, following the Gonzales case)

III. RPC [with PMC or Art. 64(5)]

a. Immediately apply the PMC or Art. 64(5) to the imposable penalty, then
proceed as in (b) and (c) of II.
Example: same case as in II, but 1 PMC

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 Imposable penalty: Reclusion Temporal – immediately lower this
by 1 degree [Art. 64(5)]
Therefore: Prision mayor – max of I.S.
Prision correccional – min. of I.S.
Same treatment as in II above.

IV. COMPLEX CRIME:

Art. 48 – the penalty for the more serious crime shall be imposed in its max.
period
a. X is found guilty of the crime of estafa through falsification of a public
document. The penalty is for the more serious crime of falsification, which is
prision mayor max. (determine the min. of the indeterminate sentence using the
prision mayor max as reference)
Indeterminate Sentence is:
Example: 1M.C.
I.S. max – prision mayor maximum (medium because of 1 m.c.)
min. – prision correccional – whole range (supra)

SECTION 2, ACT 4103 [ISLAW] --- This act shall not apply:
(a) to those persons convicted of offenses punished with death penalty or life-
imprisonment;
(b) to those convicted of treason, conspiracy or proposal to commit treason;
(c) to those convicted of misprision of treason, rebellion, sedition, or espionage;
(d) to those convicted of piracy;
(e) to those who are habitual delinquents;
(f) to those who shall have escaped from confinement or evaded sentence;
(g) to those who having been granted conditional pardon by the President shall
have violated the terms thereof; and
(h) to those whose maximum term of imprisonment does not exceed one year….

C A S E S:
People vs. Geneblazo July 20, 2001

Based on our findings that homicide, not murder, was committed, the penalty
imposed upon accused-appellant should correspondingly be lowered to reclusion
temporal. There being no aggravating nor mitigating circumstance, the proper
imposable penalty should be reclusion temporal in its medium period. Applying the
Indeterminate Sentence Law, the minimum term is anywhere within the range of prision
mayor, or from 6 years and 1 day to 12 years, and the maximum within the range of
reclusion temporal in its medium period, or from 14 years, 8 months and 1 day to 17
years and 4 months.

avdjr NOTE: Reclusion Temporal: Min: 12y 1d ~14y 8m; Med: 14y 8m 1d ~ 17y 4m;
Max: 17y 4m 1d ~ 20y
Prision Mayor: Min: 6y 1d ~ 8y; Med: 8y 1d ~ 10y; Max: 10y 1d ~12y

People vs. Pagador April 20, 2001

EN BANC
As regards the killing of Herminigildo Mendez, a victim of homicide, the penalty
under Art. 249 of The Revised Penal Code is reclusion temporal, the range of which is

Page 112 of 125

twelve (12) years and one (1) day to twenty (20) years. Considering the presence of the
aggravating circumstance of nighttime and applying the Indeterminate Sentence Law,
the maximum of the imposable penalty shall be taken from the maximum period of
reclusion temporal, which is seventeen (17) years four (4) months and one (1) day to
twenty (20) years, while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor, the range of which is six (6) years and one (1) day to
twelve (12) years, in any of its periods.
xxx xxxxxx

As regards the frustrated murder of Rosalinda Mendez, the penalty one (1)
degree lower than reclusion perpetua to death, which is reclusion temporal, shall be
imposed pursuant to Art. 250 of The Revised Penal Code in relation to Art. 50 thereof.
In the absence of any modifying circumstance,16 the maximum penalty to be imposed
shall be taken from the medium period of the imposable penalty, which is reclusion
temporal medium, while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor in any of its periods.
xxx xxxxxx
Complaining witness Emily Mendez lost her left index finger by amputation as a
result of the crime, and appreciating treachery as an aggravating circumstance, evident
premeditation although alleged but not having been proved, the imposable penalty shall
be prision correccional in its minimum and medium periods the range of which is six (6)
months and one (1) day to four (4) years and two (2) months. Applying the
Indeterminate Sentence Law, the minimum shall be taken from the minimum of the
imposable penalty, which is six (6) months and one (1) day to one (1) year eight (8)
months and twenty (20) days, and the maximum shall be taken from its medium period,
which is one (1) year, eight (8) months and twenty-one (21) days, to two (2) years
eleven (11) months and ten (10) days.
xxx xxxxxx
WHEREFORE, the Decision of the Regional Trial Court of Alaminos,
Pangasinan is MODIFIED as follows:
1) In G.R. No. 140006 (Crim. Case No. 3284-A), accused-appellant Rolly
Pagador is found guilty of Homicide (instead of Murder as found by the trial court) and is
sentenced to suffer an indeterminate prison term of eight (8) years four (4) months and
ten (10) days of prision mayor medium as minimum, to seventeen (17) years six (6)
months and twenty (20) days of reclusion temporal maximum, as maximum, and to pay
the heirs of Herminigildo Mendez the amounts of P50,000.00 as civil indemnity and
another P50,000.00 for moral damages;
2) In G.R. No. 140007 (Crim. Case No. 3285-A), accused-appellant is found
guilty of Murder (as likewise found by the trial court) and is sentenced to suffer the
penalty of reclusion perpetua and to pay the heirs of Magdalena Mendez the amounts of
P50,000.00 as civil indemnity and another P50,000.00 for moral damages;
3) In G.R. No. 140008 (Crim. Case No. 3286-A), accused-appellant is found
guilty of Less Serious Physical Injuries (instead of Frustrated Murder as found by the
trial court) and is sentenced to suffer a straight prison term of four (4) months and ten
(10) days of arresto mayor maximum;
4) In G.R. No. 140009 (Crim. Case No. 3287-A), accused-appellant is found
guilty of Frustrated Murder and is sentenced to an indeterminate prison term of eight
(8) years four (4) months and ten (10) days of prision mayor medium as minimum, to
sixteen (16) years two (2) months and ten (10) days of reclusion temporal medium as
maximum; and

Page 113 of 125

 5) In G.R. No. 140010 (Crim. Case No. 3288-A, or CA-G.R. CR No. 23485,
erroneously numbered G.R. No. 143934), accused-appellant is found guilty of Serious
Physical Injuries (instead of Frustrated Murder as found by the trial court) and is
sentenced to an indeterminate prison term of ten (10) months and twenty (20) days of
the minimum period of prision correccional minimum and medium, as minimum, to one
(1) year ten (10) months and twenty (20) days of the medium period of prision
correccional minimum and medium, as maximum.

ERNESTO GARCES, Petitioner

---versus---
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. No. 173858, 17 July 2007, 3rd Division
The crime committed in the case at bar is simple rape, the penalty for which
under the Revised Penal Code is reclusion perpetua. Since Pacursa was a minor when
the crime was committed, the penalty must be reduced by one degree, to reclusion
temporal.[36] Applying the Indeterminate Sentence Law and in the absence of
aggravating and mitigating circumstances, the maximum of the penalty shall be within
the medium range of reclusion temporal, or fourteen (14) years, eight (8) months and
one (1) day to seventeen (17) years and four (4) months. The minimum of the
indeterminate penalty shall be within the range of the penalty next lower in degree,
which is prision mayor, ranging from six (6) years and one (1) day to twelve (12)
years.[37]
With respect to petitioner, the penalty imposed upon accomplices in a
consummated crime is the penalty next lower in degree than that prescribed for the
felony.[38] Since simple rape is punishable with reclusion perpetua, the penalty of
reclusion temporal should also be imposed on petitioner in its medium period in the
absence of any aggravating or mitigating circumstances. Applying the Indeterminate
Sentence Law, the imposable penalty should range from prision mayor, as minimum, to
reclusion temporal in its medium period, as maximum.

[36] People v. Clores, Jr., G.R. No. 130488, June 8, 2004, 431 SCRA 210, 222.

[37] Reyes, Jr. v. Court of Appeals, 424 Phil. 829 (2002).

[38] Revised Penal Code, Art. 52.

**************************************

PEOPLE OF THE PHILIPPINES, Appellee

versus
MANUEL “BOY” HERMOCILLA, Appellant.
G.R. No. 175830, 2007 Jul 10, 3rd Division

In Family Case No. A-436, however, the penalty for rape by sexual assault with
any aggravating circumstance is reclusion temporal. Applying the Indeterminate
Sentence Law, the penalty should be within the range of prision mayor or 10 years and
1 day to 12 years as minimum, and 17 years, 4 months and 1 day to 20 years of
reclusion temporal, as maximum.
***********************************
LEONIDAS EPIFANIO Y LAZARO, Petitioner
---versus---
PEOPLE OF THE PHILIPPINES, Respondent.

Page 114 of 125

 G.R. NO. 157057, 2007 Jun 26, 3rd Division)

Accordingly, the imposable penalty for the crime of attempted murder, following
Article 51 of the Revised Penal Code, is prision correccional in its maximum period to
prision mayor in its medium period. Applying the Indeterminate Sentence Law, the
minimum of the penalty to be imposed should be within the range of arresto mayor in its
maximum period to prision correccional in its medium period, and the maximum of the
penalty to be imposed should be within the range of prision correccional in its maximum
period to prision mayor in its medium period. Since no generic aggravating or mitigating
circumstance attended the commission of the crime of attempted murder, the penalty
should be two (2) years and four (4) months of prision correccional, as minimum; and
eight (8) years of prision mayor, as maximum.
NOTE: The crime was committed on August 15, 1990 in Samal, Davao. The
penalty then imposable for MURDER was---

Art. 248. Murder. — Any person who, not falling within the provisions of Article
246 shall kill another, shall be guilty of murder and shall be punished by reclusion
temporal in its maximum period to death, if committed with any of the following
attendant circumstances:

******************************************************
July 24, 1976
PRESIDENTIAL DECREE NO. 968, (PROBATION)
[as amended by P.D. 1257, P.D. 1990, and R. A. 9344]
Sec. 1. Title and Scope of the Decree. - This Decree shall be known as the
Probation Law of 1976. It shall apply to all offenders except those entitled to the
benefits under the provisions of Presidential Decree numbered Six Hundred and three
and similar laws.
Sec. 2. Purpose. - This Decree shall be interpreted so as to:
(a) promote the correction and rehabilitation of an offender by providing him
with individualized treatment;
(b) provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.
Sec. 3. Meaning of Terms. - As used in this Decree, the following shall,
unless the context otherwise requires, be construed thus:
(a) "Probation" is a disposition under which a defendant, after conviction and
sentence, is released subject to conditions imposed by the court and to the supervision
of a probation officer.
(b) "Probationer" means a person placed on probation.
(c) "Probation Officer" means one who investigates for the court a referral for
probation or supervises a probationer or both.
Sec. 4. Grant of Probation.(SEE: Sec. 42, R. A. 9344, below) - Subject to
the provisions of this Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the defendant
on probation for such period and upon such terms and conditions as it may deem best;
Provided, That no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.

Page 115 of 125

"Probation may be granted whether the sentence imposes a term of imprisonment or a
fine only. An application for probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
"An order granting or denying probation shall not be appealable.".[Amended by P.D.
1990]

“Sec. 42, R. A. 9344, The Juvenile Justice and Welfare Act

of 2006 --- Probation as an Alternative to Imprisonment. – The
court may, after it shall have convicted and sentenced a child
(more than 15 but below 18 who acted with discernment) in
conflict with the law, and upon application at any time, place the
child on probation in lieu of service of his/her sentence taking into
account the best interest of the child. For this purpose, Section 4
of P.D. No 968, otherwise known as the Probation Law of 1976, is
hereby amended accordingly.”

Sec. 5. Post-sentence Investigation. - No person shall be placed on

probation except upon prior investigation by the probation officer and a determination by
the court that the ends of justice and the best interest of the public as well as that of the
defendant will be served thereby.
Sec. 6. Form of Investigation Report. - The investigation report to be
submitted by the probation officer under Section 5 hereof shall be in the form prescribed
by the Probation Administrator and approved by the Secretary of Justice.
Sec. 7. Period for Submission of Investigation Report. - The probation
officer shall submit to the court the investigation report on a defendant not later than
sixty days from receipt of the order of said court to conduct the investigation. The court
shall resolve the application for probation not later than fifteen days after receipts of said
report.[Amended by P.D. 1257]
Pending submission of the investigation report and the resolution of the petition,
the defendant may be allowed on temporary liberty under his bail filed in the criminal
case; Provided, That, in case where no bail was filed or that the defendant is incapable
of filing one, the court may allow the release of the defendant on recognize the custody
of a responsible member of the community who shall guarantee his appearance
whenever required by the court.
Sec. 8. Criteria for Placing an Offender on Probation. - In determining
whether an offender may be placed on probation, the court shall consider all information
relative, to the character, antecedents, environment, mental and physical condition of
the offender, and available institutional and community resources. Probation shall be
denied if the court finds that:
(a) the offender is in need of correctional treatment that can be provided most
effectively by his commitment to an institution; or
(b) there is undue risk that during the period of probation the offender will
commit another crime; or
(c) probation will depreciate the seriousness of the offense committed.
"Sec. 9. Disqualified Offenders. - The benefits of this Decree shall not be
extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of subversion or any crime against the national security or the public
order;

Page 116 of 125

(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than Two
Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof." [Amended by P.D. 1990]
Sec. 10. Conditions of Probation. - Every probation order issued by the court
shall contain conditions requiring that the probationer shall:
(a) present himself to the probation officer designated to undertake his
supervision at such place as may be specified in the order within seventy-two hours
from receipt of said order;
(b) report to the probation officer at least once a month at such time and place
as specified by said officer.
The court may also require the probationer to:
(a) cooperate with a program of supervision;
(b) meet his family responsibilities;
(c) devote himself to a specific employment and not to change said
employment without the prior written approval of the probation officer;
(d) undergo medical, psychological or psychiatric examination and treatment
and enter and remain in a specified institution, when required for that purpose;
(e) pursue a prescribed secular study or vocational training;
(f) attend or reside in a facility established for instruction, recreation or
residence of persons on probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to excess;
(i) permit to probation officer or an authorized social worker to visit his home
and place or work;
(j) reside at premises approved by it and not to change his residence without
its prior written approval; or
(k) satisfy any other condition related to the rehabilitation of the defendant
and not unduly restrictive of his liberty or incompatible with his freedom of conscience.
Sec. 11. Effectivity of Probation Order. - A probation order shall take effect
upon its issuance, at which time the court shall inform the offender of the consequences
thereof and explain that upon his failure to comply with any of the conditions prescribed
in the said order or his commission of another offense, he shall serve the penalty
imposed for the offense under which he was placed on probation.
Sec. 12. Modification of Condition of Probation. - During the period of
probation, the court may, upon application of either the probationer or the probation
officer, revise or modify the conditions or period of probation. The court shall notify
either the probationer or the probation officer of the filing such an application so as to
give both parties an opportunity to be heard thereon.
The court shall inform in writing the probation officer and the probationer of any
change in the period or conditions of probation.
Sec. 13. Control and Supervision of Probationer. - The probationer and his
probation program shall be under the control of the court who placed him on probation
subject to actual supervision and visitation by a probation officer.
Whenever a probationer is permitted to reside in a place under the jurisdiction of
another court, control over him shall be transferred to the Executive Judge of the Court
of First Instance of that place, and in such a case, a copy of the probation order, the
investigation report and other pertinent records shall be furnished said Executive Judge.
Thereafter, the Executive Judge to whom jurisdiction over the probationer is transferred

Page 117 of 125

shall have the power with respect to him that was previously possessed by the court
which granted the probation.
Sec. 14. Period of Probation. -
(a) The period of probation of a defendant sentenced to a term of
imprisonment of not more than one year shall not exceed two years, and in all other
cases, said period shall not exceed six years.
(b) When the sentence imposes a fine only and the offender is made to serve
subsidiary imprisonment in case of insolvency, the period of probation shall not be less
than nor to be more than twice the total number of days of subsidiary imprisonment as
computed at the rate established, in Article thirty-nine of the Revised Penal Code, as
amended.
Sec. 15. Arrest and Probationer; Subsequent Disposition. - At any time during
probation, the court may issue a warrant for the arrest of a probationer for any serious
violation of the conditions of probation. The probationer, once arrested and detained,
shall immediately be brought before the court for a hearing of the violation charged. The
defendant may be admitted to bail pending such hearing. In such case, the provisions
regarding release on bail of persons charged with a crime shall be applicable to
probationers arrested under this provision.
In the hearing, which shall be summary in nature, the probationer shall have the
right to be informed of the violation charged and to adduce evidence in his favor. The
court shall not be bound by the technical rules of evidence but may be inform itself of all
the facts which are material and relevant to ascertain the veracity of the charge. The
State shall be represented by a prosecuting officer in any contested hearing. If the
violation is established, the court may revoke or continue his probation and modify
conditions thereof. If revoked, the court shall order the probationer to serve the
sentence originally imposed. An order revoking the grant of probation or modifying the
terms and conditions thereof shall not be appealable.[Amended by P.D. 1257]
Sec. 16. Termination of Probation. - After the period of probation and upon
consideration of the report and recommendation of the probation officer, the court may
order the final discharge of the probationer upon finding that he has fulfilled the terms
and conditions of his probation and thereupon the case is deemed terminated.
The final discharge of the probationer shall operate to restore to him all civil
rights lost or suspend as a result of his conviction and to fully discharge his liability for
any fine imposed as to the offense for which probation was granted.
The probationer and the probation officer shall each be furnished with a copy of
such order.
Sec. 17. Confidentiality of Records. - The investigation report and the
supervision history of a probationer obtained under this Decree shall be privileged and
shall not be disclosed directly or indirectly to anyone other than the Probation
Administration or the court concerned, except that the court, in its discretion, may permit
the probationer of his attorney to inspect the aforementioned documents or parts thereof
whenever the best interest of the probationer make such disclosure desirable or helpful:
Provided, Further, That, any government office or agency engaged in the correction or
rehabilitation of offenders may, if necessary, obtain copies of said documents for its
official use from the proper court or the Administration.
Sec. 18. The Probation Administration. - There is hereby created under the
Department of Justice an agency to be known as the Probation Administration herein
referred to as the Administration, which shall exercise general supervision over all
probationers. xxx.
xxx xxxxxx

Page 118 of 125

 DONE in the City of Manila, this 24th day of July in the year of Our Lord,
nineteen hundred and seventy-six.
CASE

[GRN No. 108747 April 6, 1995]

PABLO C. FRANCISCO, petitioner, vs. COURT OF APPEALS and THE HONORABLE
MAXIMO C. CONTRERAS, respondents.
EN BANC
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a penitent qualified
offender. It essentially rejects appeals and encourages an otherwise eligible convict to
immediately admit his liability and save the state of time, effort and expenses to jettison
an appeal. The law expressly requires that an accused must not have appealed his
conviction before he can avail of probation. This outlaws the element of speculation on
the part of the accused - to wager on the result of his appeal - that when his conviction
is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of
his sentence inevitable, he now applies for probation as an "escape hatch" thus
rendering nugatory the appellate court's affirmance of his conviction. Consequently,
probation should be availed of at the first opportunity by convicts who are willing to be
reformed and rehabilitated, who manifest spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the purview of P.D.
968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General Manager of ASPAC
Trans. Company he failed to control his outburst and blurted.
You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro
kayo walang utak ... Mga anak ng puta ... Magkano ba kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple grave oral
defamation in five (5) separate Informations instituted by five (5) of his employees, each
Information charging him with gravely maligning them on four different days, i.e., from 9
to 12 April 1980.
xxx xxx xxx
Fourthly, the petition for probation was filed by the petitioner out of time x xX.
Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant
probation after conviction, upon an application by the defendant within the period of
appeal, upon terms and conditions and period appropriate to each case, but expressly
rules out probation where an appeal has been taken x x x"6
The motion for reconsideration was likewise denied.
xxx xxx xxx
The central issue therefore is whether petitioner is still qualified to avail of
probation even after appealing his conviction to the RTC which affirmed the MeTC
except with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
xxx xxx xxx
Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that
"no application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals
(12) which interprets the quoted provision, offers any ambiguity or qualification. As such,
the application of the law should not be subjected to any to suit the case of petitioner.
While the proposition that an appeal should not bar the accused from applying for
probation if the appeal is solely to reduce the penalty to within the probationable limit
may be equitable, we are not yet prepared to accept this interpretation under existing

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law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the
Court en banc in Llamado v. Court of Appeals.
xxx xxx xxx
Second. At the outset, the penalties imposed by the MeTC were already
probationable. xxx xxx xxx
The multiple prison terms are distinct from each other, and if none of the terms
exceeds the limit set out in the Probation Law, i.e., not more than six (6) years, then he
is entitled to probation, unless he is otherwise specifically disqualified. The number of
offenses is immaterial as long as all the penalties imposed, taken separately, are within
the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word
maximum, not total, when it says that "[t]he benefits of this Decree shall not be
extended to those x xx sentenced to serve a maximum term of imprisonment of more
than six years." Evidently, the law does not intend to sum up the penalties imposed but
to take each penalty separately and distinctly with the others.
xxx xxx xxx
To demonstrate the point, let us take for instance one who is convicted in a
single decision of, say, thirteen (13) counts of grave oral defamation (for having
defamed thirteen [13] individuals in one outburst) and sentenced to a total prison term of
thirteen (13) years, and another who has been found guilty of mutilation and sentenced
to six (6) years and one (1) day of prision mayor minimum as minimum to twelve (12)
years and one (1) day of reclusion temporal minimum as maximum. Obviously, the latter
offender is more perverse and is disqualified from availing of probation.
xxx xxx xxx
Perhaps it should be mentioned that at the outset, petitioner, in accordance with
Sec. 3, par. (e), Rule 117 of the Rules of Court,21 should have moved to quash as each
of the four (4) Informations filed against him charged four (4) separate crimes of grave
oral defamation, committed on four (4) separate days. His failure to do so however may
now be deemed a waiver under Sec. 9 of the same Rule22 and he can be validly
convicted, as in the instant case, of as many crimes charged in the Information.
xxx xxx xxx

MENDOZA, J., dissenting:

I vote to reverse the judgment of the Court of Appeals in this case.
xxx xxx xxx
To regard probation, however, as a mere privilege, to be given to the accused
only where it clearly appears he comes within its letter is to disregard the teaching in
many cases that the Probation, Law should be applied in favor of the accused not
because it is a criminal law - it is not - but to achieve its beneficent purpose. (Santos To
v. Paño, 120 SCRA 8, 14 [1983]). The niggardly application of the law would defeat its
purpose to "help the probationer develop into a law-abiding and self-respecting
individual" (Baclayon v. Mutia, 129 SCRA 1481, 149 [ 1984], per Teehankee, J.) or
"afford [him] a chance to reform and rehabilitate himself without the stigma of a prison
record, to save government funds: that may otherwise be spent for his food and
maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario
v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J)
The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA
391, 395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law was never intended to
limit the right of an accused person to present all relevant evidence he can avail of in
order to secure a verdict of acquittal or a reduction of the penalty. Neither does the law
require a plea of guilty on the part of the accused to enable him to avail of the benefits

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of probation. A contrary view would certainly negate the constitutional right of an
accused to be presumed innocent until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek acquittal. Proof of
this is that after the penalty imposed on him by the MeTC had been reduced by the RTC
so that he thereby became qualified for probation, he did not appeal further. The
majority says that this was because he was afraid that if he did the penalty could be
increased. The possibility, however, was also there when he appealed from the MeTC
to the RTC. For by appealing the sentence of the MeTC, petitioner took as much risk
that the penalty would be raised as the chance that he would be acquitted.
xxx xxx xxx
That the duration of a convict's sentence is determined by considering the totality
of several
xxx xxx xxx
Finally, it is said that there is a more fundamental reason for denying probation in
this case and that is that petitioner applied for probation only after his case had been
remanded to the MeTC for the execution of its decision as modified. But that is because
Sec. 4 provides that "an application for probation shall be filed with the trial court." In the
circumstances of this case, petitioner had to await the remand of the case to the MeTC,
which necessarily must be after the decision of the RTC had become final.
VITUG, J., separate opinion:
While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in
his dissenting opinion that an accused, who originally is not qualified for probation
because the penalty imposed on him by a court a quo exceeds six (6) years, should not
be denied that benefit of probation if on appeal the sentence is ultimately reduced to
within the prescribed limit, I am unable, however, to second the other proposition that
multiple prison terms imposed by a court should be taken in their totality for purposes of
Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue N. Bellosillo
in his ponencia that in determining the eligibility or disqualification of an application for
probation charged with, and sentenced to serve multiple prison terms for, several
offenses, "the number of offenses is immaterial as long as all the penalties imposed,
taken separately, are within the probational period." The use of the word maximum
instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should be
enough to reveal that such has been the legislative intent.

JUVENILE JUSTICE AND WELFARE COUNCIL

Dept. of Justice
DOJ Bldg., Padre Faura St., Ermita, Manila

COUNCIL RESOLUTION NO. 4

Series of 2006

RULES AND REGULATIONS IMPLEMENTING R.A. 9344, OR THE “JUVENILE

JUSTICE AND WELFARE ACT OF 2006”

RULE 29. Exemption from criminal liability

Rule 29.a. Who are exempt
As provided in Section 6 of the Act (R.A. 9344), the following shall be exempt from
criminal liability:
(1) A child fifteen (15) years of age or under at the time of the commission of the
offense;

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 (2) A child above fifteen (15) years but below eighteen (18) years of age who
acted without discernment at the time of the commission of the offense.
Rule 29.b. Treatment of children exempt from criminal responsibility
Children exempt from criminal liability as referred in this Rule shall be subjected
to an intervention program pursuant to Section 20 of the Act and Part VII of these Rules.
Rule 29.c. Non-exemption from civil liability
As provided in Section 6 of the Act, the exemption from criminal liability of
children under these Rules does not include exemption from civil liability, which shall be
enforced in accordance with existing laws.

RULE 30. Age

Rule 30.a. Who determines the age; when and how
As provided in Rule 22, the law enforcement officer having initial contact with the
child, after taking the child into custody, shall immediately determine the age of the
child. In making such determination, the law enforcement officer shall, consistent with
Section 7 of the Act, take any or all the following measures to ascertain the age of the
child:
(1) Obtain documents that show proof of the child’s age, such as:
(a) Child’s birth certificate;
(b) Child’s baptismal certificate; or
(c) Any other pertinent documents such as but not limited to the child’s
school records, dental records, or travel papers.

The law enforcement officer may obtain the above documents from any of the
following:
(a) ~ (e)
(2) When the above documents cannot be obtained or pending receipt of such
documents, the law enforcement officer shall exhaust other measures to determine age
by: (a) ~ (d)

Rule 30.b. In case of doubt, presumption of minority

In case of doubt as to the age of the child, after all measures are exhausted to
determine it, the age shall be resolved in his/her favor.
As provided in Section 7 of the Act, the child in conflict with the law shall enjoy
the presumption of minority. He/She shall enjoy all the rights of a child in conflict with
the law until he/she is proven to be eighteen (18) years old or older.
Rule 30.c. If age is contested
As provided in Section 7 of the Act, any person contesting the age of the child in
conflict with the law prior to the filing of the information in any appropriate court may file
a case in a summary proceeding for the determination of age before the Family Court
which shall decide the case within twenty-four (24) hours from receipt of the appropriate
pleadings of all interested parties.
xxx xxxxxx.

RULE 31. Below the age of criminal responsibility

Rule 31.a. Immediate release of child; notify LSWDO (Local Social Welfare and
Development Officer)
As provided in Section 20 of the Act, if it has been determined that the child
taken into custody is fifteen (15) years old or below, the authority which will have initial
contact with the child has the duty to:

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 (1) Immediately release the child to the custody of his/her parents or guardian, or
in the absence thereof, the child’s nearest relative; and
(2) Notify the LSWDO for the determination of appropriate intervention and
prevention programs for the child.

REPUBLIC ACT 9344

JUVENILE JUSTICE AND WELFARE ACT OF 2006
(Amended by R.A. 10630, year 2013)
TITLE VII
GENERAL PROVISIONS
CHAPTER I

EXEMPTING PROVISIONS

SEC. 57. Status Offenses. --- Any conduct not considered an offense or not
penalized if committed by an adult shall not be considered an offense and shall not be
punished if committed by a child.
SEC. 58. Offenses Not Applicable to Children. --- Persons below eighteen (18)
years of age shall be exempt from prosecution for the crime of vagrancy and prostitution
under Art. 202 of the Revised Penal Code, of mendicancy under P.D. 1563, and sniffing
of rugby under P.D. 1619, such prosecution being inconsistent with the U.N. Convention
on the Rights of the Child: Provided, That said persons shall undergo appropriate
counseling and treatment program.

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 CIRCULAR NO. 63-97 October 6, 1997

SUBJECT: MODIFICATION OF CIRCULAR NO. 4-92-A ON THE

TRANSFER OF NATIONAL PRISONERS TO THE BUREAU OF
CORRECTIONS IN MUNTINLUPA, METRO MANILA

Clarification has been sought by concerned Judges regarding their authority to

allow the commitment of national prisoners to national penal institutions other than the
main national penitentiary at the City of Muntinlupa considering that Circular No. 4-92-A
which directs all trial judges to issue commitment orders of national prisoners

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immediately after their conviction mentions only the penitentiary in Muntinlupa as the
institution to which these prisoners should be transferred. In the Department of Justice
Circular No. 4 of January 15, 1991, the Secretary of Justice directed Provincial and City
Prosecutors to file with the proper court, immediately after the promulgation of the
judgment convicting a national prisoner, a manifestation requesting said court to commit
the prisoner directly to the national penal institutions mentioned in his circular. These
are:

1. National prisoners in Regions X and XI — to be committed to the Davao

Prison and Penal Farm at Panabo, Davao del Norte;

2. National prisoners in Regions IX and XII — to be committed to the San

Ramon Prison and Penal Farm at Zamboanga City, Zamboanga del Sur;

3. National prisoners in Region VIII — to be committed to the Leyte

Regional Prison at Abuyog, Leyte;

4. National prisoners in Palawan and Puerto Princesa City — to be

committed to the Iwahig Prison and Penal Farm at Puerto Princesa,
Palawan; and

5. National prisoners in Mindoro Oriental and Mindoro Occidental — to be

committed to the Sablayan Prison and Penal Farm at Sablayan, Mindoro
Occidental.

The purposes of Circular No. 4-92-A which are to decongest provincial, city and
municipal jails and to effect better control and supervision over national prisoners are
still served if these prisoners are transferred to the mentioned national penal institutions.
Accordingly, the Judges concerned may, in the exercise of sound discretion, favorably
act on the manifestations of prosecutors for direct commitment of national prisoners to
these penal institutions.

It is understood that: (a) all female national prisoners shall continue to be

committed to the Correctional Institution for Women at Mandaluyong, Metro Manila; and
(2) all other national male prisoners not included in the foregoing enumeration shall be
committed to the New Bilibid Prison at Muntinlupa City.

October 6, 1997.

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