Criminal Law Reviewer. Windy.pdf

ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

What is Criminal Law? Criminal law is that branch or division of law which defines crimes, treats of their nature, and provides for their punishment. Are there common law crimes in the Philippines? The so-called common law crimes known as the body principles, usages and rules of action, which do not rest for their authority upon any express and positive declaration of the will of the legislature, are not recognized in this country. Unless there be a particular provision in the penal code or special penal law that defines and punishes the act, even if it be socially or morally wrong, no criminal liability is incurred by its commission. Are court decisions sources of criminal law? Court decisions are not sources of criminal law because they merely explains the meaning of, and apply, the law as enacted by the legislative branch of the government. What are the limitations on the power of the lawmaking body to enact penal legislation? 1. No ex post facto law1 or bill of attainder 2shall be enacted. 2. No person shall be held to answer for a criminal offense without due process of law. 3. There must be a general application. What are the Characteristics of Criminal Law? 1. GENERAL, in that criminal law is binding on all persons who live or sojourn in the Philippines (Art. 14, New Civil Code)

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An ex post facto is one which: 1. Makes a criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; 2. Aggravates a crime, or makes it greater than it was, when committed; 3. Changes the punishment and inflicts a greater punishment than that law annexed to the crime when committed; 4. Alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 5. Assumes to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and 6. Deprives a person accused of a crime some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

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Is a legislative act which inflicts punishment without trial; its essence is the substitution of a legislative act for a judicial determination of guilt.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

e.g. In a case where the accused contended that being an American citizen, he cannot be prosecuted for, much less convicted of, the crime of illegal possession of firearms, because it is a constitutional right of the citizens of USA “to keep and bear arms” without any need of applying and securing a government license, the CA held: the Philippines is a sovereign state with obligation and the right of every government to uphold its laws and maintain order within its domain, and with the general jurisdiction to punish persons for offenses committed within its territory, regardless of the nationality of the offender. No foreigner enjoys in this country extra-territorial right to be exempted from its laws and jurisdiction , with the exception of heads of states and diplomatic representatives who, by virtue of the customary law of nations, are not subject to the Philippine territorial jurisdiction. As a general rule, the jurisdiction of the civil court is not affected by the military character of the accused. Civil courts have concurrent jurisdiction with general courts martial over soldier of the AFP. The RPC or other penal law is not applicable when the military court takes cognizance of the case. When the military court takes cognizance of the case involving a person subject to military law, the Articles of War apply, not the RPC or other penal laws. The prosecution of an accused before a court-martial is a bar to another prosecution of the accused for the same offense. Exceptions to the general application of the Criminal Law 

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Article 2 of the RPC says that the provisions of this Code shall be enforced within the Philippine Archipelago , “except as provided in the treaties and laws of preferential application” Article 14 of the New Civil Code provides that 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. (e.g. a law of preferential application in favor of diplomatic representative and domestic servants – note: no applicable when the foreign country adversely affected does not provide similar protection to our diplomatic representatives.)

Persons exempt from the operation of our criminal laws by virtue of the principles of public international law. 

Sovereign and other chiefs of state

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

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Ambassadors, ministers plenipotentiary, ministers resident, and charges d’affaires (Note: A consul is not entitled to the privileges and immunities of an ambassador or minister)

2. TERRITORIAL, in that criminal laws undertake to punish crimes committed within Philippine territory. The principle of territoriality means that as a rule, penal laws of the Philippines are enforceable only within its territory. Exceptions to the territorial application of criminal law The same Article 2 of the RPC provides that its provision shall be enforced outside the jurisdiction of the Philippines against those who:     

Should commit an offense while on a Philippine ship or airship Should forge or counterfeit any coin or currency note of the Philippines or obligations and securities issued by the Government of the Philippines Should be liable for acts connected with the introduction into the Philippines of the obligations and securities mentioned in the proceeding number While being public officers or employees, should commit an offense in the exercise of their functions Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of the RPC

3. PROSPECTIVE, in that a penal law cannot make an act punishable in a manner in which it was not punishable when committed. As provided in Article 366 of the RPC, crimes are punish under the laws in force at the time of their commission Exceptions to the prospective application of criminal laws Whenever a new statute dealing with crime establishes conditions more lenient or favorable to the accused it can be give a retroactive effect But this exception has no application:   3

Where the new law is expressly made inapplicable to pending actions or existing causes of action Where the offender is a habitual criminal under Rule 5, Article 62, RPC3

Habitual delinquency shall have the following effects:

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA Cruz vs Correctional Institution for Women in Mandaluyong RA 7659, which took effect on December 13, 1993, partly modified the penalties prescribed by RA 6425 (Dangerous Drugs Act of 1972). The petitioner should not be deemed to have served the maximum period imposable for the crime for which she was convicted. Although her penalty of life imprisonment had already become final, the beneficial effect of the amendment provided for under RA 7659 should be extended to the petitioner.

Requisites of Habitual Delinquency 1. That the offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification 2. That after conviction or after serving his sentence, he again committed, and, within 10 years from his last release of first conviction, he was again convicted of any of the said crimes for the second time 3. That after his conviction of, or after serving sentence for the second offense, he again committed, and within 10 years from his last release or last conviction, he again convicted of any of said offense, the third time or oftener.

(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; (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 of the crimes of serious or less serious physical injuries, robo, hurto, estafa, or falsification, he is found guilty of any crimes a third third time or oftener.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

Construction of Penal Law 1. Penal laws are strictly construed against the Government and liberally in favor of the accused. 2. In the construction or interpretation of the provision of the Revised Penal Code, the Spanish text is controlling because it was approved by the Philippine Legislature in its Spanish Text. People vs Mangulabnan Facts: During the robbery in a dwelling house, one of the culprits fired his gun upward in the ceiling, not knowing that there was a person in the ceiling of the house. The owner of the house who was up in the ceiling was hit by the slug that passed through it and was killed. Art. 294, par. 1, of the RPC provides, according to its English text, that the crime is robbery with homicide “when by reason or on occasion of the robbery the crime of homicide shall have been committed. The Spanish text of the same provision reads, as follows: “Cuando con motive o con occasion del robo resultare homicidio.” Ruling: In view of the Spanish text which must prevail, the crime committed is robbery with homicide, even if the homicide supervened by mere accident. Note: While the English text seems to convey the meaning that the homicide should be intentionally committed, the Spanish text means that it is sufficient that the homicide shall have resulted, even if by mere accident.

Article 1. Time when Act takes effect. – This Code shall take effect on the first day of January, ninenteen hundred and thirty-two. Two theories in Criminal Law 1. Classical Theory (Juristic) a. The basis of criminal liability is human free will and the purpose of the penalty is retribution b. That man is essentially a moral creature with an absolutely free will to choose between good and evil, thereby placing more stress upon the effect or result of the felonious act than upon the man, the criminal himself c. It has endeavored to established a mechanical and direct proportion between crime and penalty d. There is a scant regard to the human element

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA People vs Estrada The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. Under the classical theory on which our Penal Code is mainly based, the basis of criminal liability is human free will. Man is essentially a moral creature with an absolutely free will to choose between good or evil. When he commits a felonious or criminal act, the act is presumed to have been done voluntarily, i.e. with freedom, intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired. In the absence of evidence to the contrary, the law presumes that every person is of sound mind and all acts are voluntary. The moral and legal presumption under our law is that freedom and intelligence constitute the normal condition of a person. This presumption, however, may be overthrown by other factors; and one of these is insanity which exempts the actor from criminal liability.

2. Positivist Theory (Realistic) a. That man is subdued occasionally by a strange and morbid phenomenon which constrains him to do wrong, in spite of or contrary to his volition b. That crime is essentially a social and natural phenomenon, and as such, it cannot be treated and checked by the application of abstract principles of law and jurisprudence nor by the imposition of a punishment, fixed and determined a priori. 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; 2. Should forge or counterfeit any coin or currency note of the Philippines or obligations and securities issued by the Government of the Philippines; 3. Should be liable for acts connected with the introduction into the Philippines of the obligations and securities mentioned in the proceeding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; 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. Should commit an offense while on a Philippine ship or airship A Philippine vessel or aircraft must be understood as that which is registered in the Philippine Bureau of Customs. 6|Page

ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

It is the registration of the vessel or aircraft in accordance with the laws of the Philippines, not the citizenship of its owner, which makes it a Philippine ship or airship. Example: if a crime is committed ten miles from the shores of the Philippines on board a vessel belonging to a Filipino but the same is note registered or licensed in accordance with the laws of the Philippines, paragraph no. 1 of Art. 2 is not applicable. Foreign merchant vessel is considered extension of the territory of the country to which it belongs. Therefore, an offense committed on the high seas on board a foreign merchant vessel is not triable by our courts. Should forge or counterfeit any coin or currency note of the Philippines or obligations and securities issued by the Government of the Philippines; Should be liable for acts connected with the introduction into the Philippines of the obligations and securities mentioned in the proceeding number Reason: the introduction of forged or counterfeited obligations and securities into the Philippines is a dangerous as the forging or counterfeiting of the same, to the economical interest of the country While being public officers or employees, should commit an offense in the exercise of their functions The crimes that may be committed in the exercise of public functions are direct bribery, indirect bribery, fraud against the public treasury, possession of prohibited interest, malversation of public funds or property, failure of accountable officer to render accounts, illegal use of public funds or property, failure to make delivery of public funds or property, and falsification by a public officer or employee committed with abusing of his official position. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code. The crimes against the national security and the law of nations are treason, conspiracy and proposal to commit treason, espionage, inciting to war and giving motives for reprisals, violation of neutrality, correspondence with hostile country, flight to enemy’s country, and piracy and mutiny on the high seas. Is Rebellion included? No, rebellion is a crime against public order. Sec. 26 (a) of RA 9208, as amended by RA 10364 – Trafficking in person, even committed outside the Philippines, is triable in the Philippines

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

Rules as to jurisdiction over crimes committed aboard foreign merchant vessels 1. French Rule – such crimes are not triable in the courts of that country, unless their commission affects the peace and security of territory or the safety of the state is endangered 2. English Rule – such crimes are triable in that contrary, unless they merely affect things within the vessel or they refer to the internal management thereof Note: we follow English Rule Mere possession of opium aboard a foreign merchant vessel in transit is not triable in Philippine courts, because that fact alone does not constitute a breach of public order. But said courts acquire jurisdiction when the tins of opium are landed from the vessel on Philippine soil. Landing or using opium is an open violation of the laws of the Philippines. Note: Smoking opium constitutes a breach of public order. Philippine courts have no jurisdiction over offense committed on board foreign warships in territorial waters. Art.3. Definition. – Acts4 and omissions5 punishable by law are felonies. Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa) There is deceit when the act performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Elements of Felonies 1. That there must be an act or omission 2. That the act or omission must be punishable by the RPC 3. That the act is performed or the omission incurred by means of dolo or culpa

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Any bodily movement tending to produce some effect in the external world, it being unnecessary that the same be actually produced, as the possibility of its production is sufficient 5 Failure to perform a positive duty which one is bound to do, e.g., Article 275, par. 1 – Anyone who fails to render assistance to any person whom he finds in an uninhabited place wounded or in danger of dying, is liable for abandonment of persons in danger; Art. 213, par. 2(b) – an officer entrusted with collection of taxes who voluntarily fails to issue a receipt as provided by law, is guilty of illegal exaction; and Art. 116 – Every person owing to the Philippines, without being a foreigner, and having knowledge of any conspiracy against the government, who does not disclose and make known the same to the proper authority, is liable for misprision of treason.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

Requisites of dolo or malice 1. Freedom – when a person acts without freedom, he is no longer a human being but a tool; his liability is as much as that of the knife that wounds, torch that sets fire, or of the key that opens a door, or of a ladder that is placed against the wall of a house in committing robbery. 2. Intelligence – without this power, necessary to determine the morality of human acts, no crime can exist 3. Intent – intent to commit an act with malice, being purely a mental process, is presumed and the presumption arises from the proof of the commission of an unlawful act. Intent is a mental state, the existence of which is shown by the overt acts of a person. People vs Beronilla Facts: The accused was a military major. He received an order from the regional commander to prosecute Arsenio Borjal for treason and to appoint a jury of 12 bolomen. The jury found Borjal guilty of the charge and the recommendation of the jury was approved by the Headquarters of the guerrilla unit. For the execution of Borjal, the accused was prosecuted for murder. The accused acted upon orders of superior officers which turned out to be illegal. As a military subordinate, he could not question the orders of his superior officers. He obeyed the orders in good faith, without being aware of their illegality, without any fault or negligence on his part. Ruling: Criminal intent was not established. To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences, as in law, is equivalent to criminal intent.

Mistake of fact is a misapprehension of fact on the part of the person who caused injury to another. He is not, however, criminally liable, because he did not act with criminal intent (US vs Ah Chong). US vs Ah Chong Ah Chong must be acquitted because of mistake of fact. Had the facts been as Ah Chong believed them to be, he would have been justified in killing the intruder under Article 11, paragraph 1, of the Revised Penal Code.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

People vs Oanis Facts: Chief of Police Oanis and his co-accused Corporal Galanta were under instruction to arrest one Balagtas, a notorious criminal and escaped convict, and if overpowered, to get him dead or alive. Proceeding to the suspected house, they went into a room and on seeing a man sleeping with his back towards the door, simultaneously fired at him with their revolvers, without first making any reasonable inquiry as to his identity. The victim turned out to be an innocent man and not the wanted criminal. Ruling: Both accused are guilty of murder. Note: Even if it were true that the victim was the notorious criminal, the accused would not be justified in killing him while the latter was sleeping. In apprehending even the most notorious criminal, the law does not permit the captor to kill him. It is only when the fugitive from justice is determined to fight the officers of the law who are trying to capture him that killing him would be justified.

Requisites of mistake of fact as a defense 1. That the act done would have been lawful had the facts been as the accused believed them to be 2. That the intention of the accused in performing the act should be lawful 3. That the mistake must be made without fault or carelessness on the part of the accused The mistake must be done without fault or carelessness on the part of the accused In the Ah Chong case, there is an innocent mistake of fact without any fault or carelessness on the part of the accused, because, having no time or opportunity to make any further inquiry, and being pressed by circumstances to act immediately, the accused had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing the deceased. In the Oanis case, the accused found no circumstance whatsoever which would press them to immediate action. The person is the room being then asleep, the accused 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. Hence, the accused in the Oanis case were at fault when they shot the victim in violation of the instructions given to them. They were also careless in not verifying first the identity of the victim.

In felonies committed by means of culpa, the mind of the accused is not criminal. However, his act is wrong, because the injury or damage caused to the injured party results from the imprudence, negligence, lack of foresight or lack of skill of the accused.

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Requisites of culpa or fault 1. Freedom 2. Intelligence 3. Imprudence, negligence, lack of foresight, or lack of skills People vs Guillen A deliberate intent to do unlawful act is essentially inconsistent with the idea of reckless imprudence. Where such an unlawful act is willfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence. US vs Catangay Three men were hunting deer at night. Ramos carried a lantern fastened in his forehead. They saw a deer. Catangay whose gun was already cocked and aimed at the deer stumbled against an embankment which lay between him and Ramos. His gun was accidentally discharged, hitting and killing Ramos. It was held that Catangay was not criminally liable because he had no criminal intent and was not negligent.

Mala in se – wrongful from their nature; so serious in their effect in the society as to call unanimous condemnation of its members; felonies defined and penalized by the RPC; there is graduation of crime; considers circumstance Mala prohibita – wrong merely because prohibited by statue, such as illegal possession of firearms; violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society; there is no graduation of crimes (only consummated); every offender is principal; no regard with circumstances; good faith is not a defense Third class of crimes are those punishable by special laws There are three classes of crimes. The RPC defines and penalizes the first two, (1) intentional felonies, and (2) the culpable felonies. The third class of crimes are those defined and penalized by special laws which include crimes punished by municipal or city ordinances. In those crimes punished by special laws, the act alone, irrespective of its motive, constitutes the offense. The display itself, without the intervention of any other facet, is the evil. Good faith and absence of criminal intent are not valid defenses in crimes punished by special laws.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

Intent distinguished from Motive Motive is the moving power which impels one to action for definite result. Intent is the purpose to use a particular means to effect such result. Is motive an essential of a crime? No. Are there cases which considers motive to determine criminal liability? Yes, if there are circumstantial evidence. 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. 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. Requisites of par. 1 of Art. 1 1. That an intentional felony has been committed; and 2. That the wrong done to the aggrieved party be the direct, natural and logical consequences of the felony committed by the offender. An act which is not punishable by the RPC is attempting to commit suicide. Therefore, if A, in attempting a suicide, jumped out of the window to kill himself, but when he dropped to the ground he fell on an old woman who died as a consequence, A is not criminally liable for intentional homicide. A was not committing a felony when he attempted a suicide. If B, who was being fired at with a gun by C to kill him, fired his pistol at the latter in self-defense, but missed him and instead hit and killed D, a bystander, B is not criminally liable for the death of D. One acting in self-defense is not committing a felony. People vs Page Facts: During a robbery in a passenger jeepney, one of the culprit told the women passengers “to bring out their money and not to shout or else there will be shots.” One of the women jumped out of the jeepney. Her head struck the pavement. She died as a consequence. Ruling: If a man creates in another person’s mind an immediate sense of danger, which causes such person to try to escape and, in doing so, the latter injures himself, the man who creates such state of mind is responsible for the resulting injuries.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

The felony committed must be the proximate cause of the resulting injury. Proximate cause – is that cause, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury or damage, without which the result would not have occurred. A person committing a felony is criminally liable for all the natural and logical consequences resulting therefrom although the wrongful act done be different from that which he intended. Is the accused criminally liable for the consequences which originate through the fault or carelessness of the injured person? No. Persons who are responsible for an act constituting a crime are also liable for all the consequences arising therefrom and inherent therein, other than those due to incident entirely foreign to the act executed, or which originate through the fault or carelessness of the injured person. Factors affecting intent and correspondingly the criminal liability 1. 2. 3. 4. 5.

Mistake of fact Aberratio ictus (mistake in the victim of the blow) Error in personae (mistake in identity) Praeter Intentionem (so grave a wrong caused than that intended) Proximate cause (the cause of the cause is the cause of the evil caused) People vs Pinto

Error in Personae: The mistake in the identity of the victim carries the same gravity as when the accused zeroes in on his intended victim because the accused had acted with such a disregard for the life of the victim without checking carefully the latter’s identity as to another willfully, unlawfully and feloniously.

People vs Flores Praeter Intentionem: Anyone who inflicts injury voluntarily and with intent is liable for all the consequences of his criminal act, such as death, that supervenes as a consequence of the injuries. Accused is liable for the demise of the victim for such was caused by the violent kicks which he inflicted on the vital parts of the victim’s body.

Impossible crimes The commission of an impossible crime is indicative of criminal propensity or criminal tendency on the part of the actor.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

Requisites of impossible crime 1. That the act performed would be an offense against persons6 or property7 2. That the act was done with evil intent 3. That its accomplishment is inherently impossible, or that the means employed is either ineffectual or inadequate 4. That the act performed should not constitute a violation of another provision of the RPC In impossible crime, there is no attempted or frustrated stage. In impossible crime, the person intending to commit an offense has already performed all the acts for the execution of the same, but nevertheless the crime is not produced by reason of the fact that the act intended is by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate or ineffectual to produce the desired result by him. Is there an impossible crime of rape? Yes. There is now the impossible crime of rape because the Anti-Rape Law reclassified rape to crimes against person (Art. 266-A to D). Is there an impossible crime of libel? None. Libel is neither a crime against persons or property. 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 penal legislation. 6

Felonies against persons a. Parricide (Art. 246) b. Murder (Art. 248) c. Homicide (Art. 249) d. Infanticide (Art. 255) e. Abortion (Arts. 256, 257, 258 and 259) f. Duel (Arts. 260 and 261) g. Physical Injuries (Arts. 262, 263, 264, 265 and 266) h. Rape (Art. 266-A) 7 Felonies against property are: a. Robbery (Arts. 294, 297, 299, 30, 302 and 303) b. Brigandage (Arts. 306 and 307) c. Theft (Arts. 308, 310 and 311) d. Usurpation (Arts. 312 and 313) e. Culpable insolvency (Art. 314) f. Swindling and other deceits (Arts. 315, 316, 317 and 318) g. Chattle Mortgage (Art. 319) h. Arson and other crimes involving destruction (Arts. 320, 322, 323, 325, and 326) i. Malicious Mischief (Arts. 327, 328, 329, 330 and 331)

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

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 provision 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. 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 overt acts8, and does not perform all the act of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Art. 6 refers to stages of execution Development of a crime 1. Internal acts – mere ideas in the minds of a person, are not punishable even if, had they been carried out, they would constitute a crime. 2. External acts – cover preparatory acts and acts of execution Other than his own spontaneous desistance If the actor does not perform all the acts of execution by reason of his own spontaneous desistance, there is no attempted felony. The law does not punish him. Reason: It is a sort of reward granted by law to those who, having one foot on the verge of crime, heed the call of their conscience and return to the path of righteousness. The desistance should be made before all the acts of execution are performed.

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Overt act is some physical activity or deed, indicting 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.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA

The desistance which exempts from criminal liability has reference to the crime intended to be committed, and has no reference to the crime actually committed by the offender before his desistance. The stage of execution was held to be frustrated because the wound inflicted was mortal. People vs David Where the accused in firing his revolver at the offended party hit him in the upper side of the body, piercing it from side to side and perforating the lungs. The victim was saved due to adequate and timely intervention of medical science.

The stage of execution was held to be attempted because the wound inflicted was not mortal. People vs Domingo Where the two physicians called to the witness stand by the prosecution could not agree that the wounds inflicted upon the complainant would cause death. One of them, Dr. Rotea, testified that the wounds were not serious enough to produce death even if no medical assistance had been given to the offended party.

How to determine whether the crime is only attempted or frustrated or it is consummated In determining whether the felony is only attempted or frustrated, or it is consummated, (1) the nature of the offense, (2) the elements constituting the felony, as well as (3) the manner of committing the same, must be considered. Some crimes have no frustrated stage, such as: a. When the RPC defines a felony in such a manner that it cannot be frustrated. For instance, since the gravamen of rape is carnal knowledge, the slightest penetration of the female organ consummates the felony. Same with arson. Since the burning of even a portion of the building is considered arson, the mere scorching thereof consummates the crime. b. When the crime requires agreement between two parties, as in corruption of public officers – the moment the public officer accepts the gift, promise or consideration in bribery, the crime of corruption is consummated but when the public officer refuses to be corrupted, the crime is attempted only. c. As the RPC defines theft and robbery as the unlawful taking of property belonging to another, the moment the offender has complete control of the property, the crime is consummated. Is there a felony of frustrated rape by sexual assault? None. 16 | P a g e

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if there is no intent of penetration but merely gratification – acts of lasciviousness Is there a felony of frustrated theft? None, based on Valenzuela vs People. Frustrated robbery? None, based on Valenzuela vs People. Valenzuela vs People By definition of Art. 308, theft can only be attempted or consummated. It does not have a frustrated stage as its element of unlawful taking, apoderamiento, is complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of it.

Art. 7. When Light felonies are punishable. – Light felonies are punishable only when they have been consummated, with the exception of those committed against persons or property. Light Felonies – are those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 200 pesos. When light felonies are punishable: 1. Only when consummated, except for crimes against persons or property. 2. In all stages if the crime is against persons or property. Who are punishable – Principals and accomplices. Accessories are not criminally liable for light felonies. (Art. 16) Why are attempted and frustrated light felonies not punishable? Why is an accessory in consummated light felony not punishable? Because the deduction of penalty is one degree for frustrated, two degrees for the attempted stage and another two degrees for accessory offender. Since the penalty for light felony is arresto menor, there is no way of further reducing the penalty. De minimis non curat lex Art. 8. Conspiracy and proposal to commit felony. – Conspiracy and proposal to commit felony are punishable only in the case 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 a proposal when a person who has decided to commit a felony proposes its execution to some other person or persons. General Rule: Conspiracy and proposal to commit felony are not punishable.

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Exception: They are punishable only in the cases in which the law specially provides a penalty therefor. 9 Reason: Conspiracy and proposal to commit a crime are only preparatory acts, and the law regards them as innocent or at least permissible except in rare and exceptional cases. Conspiracy as a felony, distinguished from conspiracy as a manner of incurring criminal liability When the conspiracy relates to a crime actually committed, it is not a felony but only a manner of incurring criminal liability, that is, when there is conspiracy, the act of one is the act of all. Two concepts of conspiracy 1. As a crime by itself, the subject of conspiracy is not yet committed but the mere act of conspiring is defined and punished as a crime, for instance, proposal and conspiracy to commit treason or rebellion; conspiracy to commit arson under sec. 7 of PD 1613. 2. As a basis of incurring liability, the execution of the plan is commenced. Conspiracy by itself ceases to be the crime but is absorbed. Hence, the crime is no longer conspiracy to commit rebellion but rebellion; not anymore to commit arson but arson. 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 afflictive10, in accordance with Article 25 of this Code. Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional11, in accordance with the above-mentioned article. Light Felonies are those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 200 pesos, or both, is provided.

9

E.g. Art. 115 Conspiracy xxx to commit treason, Art. 136 Conspiracy xxx to commit coup d’etat, rebellion or insurrection, Art. 141 Conspiracy to commit sedition. 10 The afflictive penalties in accordance with Art. 25 of this Code: a. Reclusion perpetua b. Reclusion temporal c. Perpetual or temporary absolute disqualification d. Perpetual or temporary special disqualification e. Prision mayor 11 The following are correctional penalties: a. Prision correccional b. Arresto mayor c. Supension d. Destierro

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Art. 9 classifies felonies according to their gravity. The gravity of the felonies is determined by the penalties attached to them by the law. 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. The provisions of the Revised Penal Code on penalties cannot be applied to offenses punishable under special laws. Offenses under special laws, not subject to the provisions of this Code relating to attempted and frustrated stage. The special law does not provide for a penalty one or two degrees lower than that provided for the consummated stage. The special law has to fix a penalty for the attempt and a penalty for the frustration of the crime defined by it, in order that the crime may be punished in case its commission reached only the attempted or frustrated stage of execution. Romualdez vs Hon. Marcelo Sec. 2 of Act no. 3326 is conspicuously silent as to whether the absence of the offender from the Philippines bars the running of the prescriptive period. The silence of the law can only be interpreted to mean that Sec. 2 did not intend such an interruption of the prescription unlike the explicit mandate of Article 91 of RPC which provides that: Art. 91. Computation of prescription of offense. – 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.

The Circumstances affecting Criminal Liability 1. Justifying Circumstances – are those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability.

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There is no civil liability, except in par. 4 of Art. 1112, where the civil liability is borne by the person benefited by the act. Basis: the law recognizes the non-existence of a crime by expressly stating in the opening sentence of Article 11 that the persons therein mentioned “do not incur any criminal liability.” 2. Exempting Circumstances (non-imputability) – are those grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent. Basis: the exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent or on the absence of negligence on the part of the accused. Technically, one who acts by virtue of any of the exempting circumstance commits a crime, although by the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal liability arise. Any of the circumstances mentioned in Art. 12 is a matter of defense and the same must be proven by the defendant to the satisfaction of the court. Absolutory causes – are those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed. 3. Mitigating Circumstances – are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty. Basis: the diminution of either freedom of action, intelligence, or intent, or on the lesser perversity of the offender. 4. Aggravating Circumstances – are those which, if attendant in the commission of the crime, serve to increase the penalty without, however, exceeding the maximum of the penalty provided by law for the offense. 12

Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present: a. That the evil sought to be avoided actually exists; b. That the injury feared is greater than that done to avoid it; and c. That there be no other practical and less harmful means of preventing it.

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Basis: they are based on the greater perversity of the offender manifested in the commission of the felony as shown by: (1) the motivating power itself; (2) the palce of commission; (3) the means and ways employed; (4) the time, or (5) the personal circumstances of the offender, or of the offended party. 5. Alternative Circumstances – are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the circumstance and other conditions attending its commission. Art. 11. Justifying Circumstance. – The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: a. Unlawful aggression13; b. Reasonable necessity of the means employed to prevent or repel it; c. Lack of sufficient provocation on the part of the person defending himself. 2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within 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. 3. Anyone who 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. 4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another, 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. 5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. 6. Any person who acts in obedience to an order issued by a superior for some lawful purpose. There is no crime committed, the act being justified.

13

Unlawful aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind. There is an unlawful aggression when the peril to one’s life, limb or right is either actual or imminent.

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Burden of Proof The circumstances mentioned in Art. 11 are mattes of defense and it is incumbent upon the accused, in order to avoid criminal liability, to prove the justifying circumstance claimed by him to the satisfaction of the court. Rights included in self-defense Self-defense includes not only the defense of the person or body of the one assaulted but also of his rights, that is, those rights the enjoyment of which is protected by law. People vs Narvaez The appellant’s act in killing the deceased was not justifiable, since not all the elements for justification are present. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack. He should, therefore, be held responsible for the death of the victims, but he could be credited with the special mitigating circumstances of incomplete defense, pursuant to par. 6, Art. 13 of the RPC.

Unlawful aggression is an indispensable requisite. Aggression must be unlawful. Thus, a paramour surprised in the act of adultery cannot invoked self-defense if he killed the offended husband who was assaulting him. A slap on the face constitutes unlawful aggression. Since the face represents a person and his dignity, slapping it is a serious personal attack. Mere belief of an impending attack is not sufficient. Foot-kicking greeting is not unlawful aggression. Retaliation is not self-defense. In retaliation, the aggression that was begun by the injured party already ceased to exist when the accused attacked him. The unlawful aggression must come from the person who was attacked by the accused. A public officer exceeding his authority may become an unlawful aggressor. The fact that the accused declined to give any statement when he surrendered to a policeman is inconsistent with the plea of self defense.

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Physical fact may determine whether or not the accused acted in self-defense People vs Aquino The plea of self-defense was sustained. There were conflicting versions as to how the victim was shot but the Supreme Court sustained the version of the accused as being in accord with the physical evidence. The prosecution tried to prove that the victim was standing about two or three meters away from the truck were the accused was seated as driver and that the accused, without any exchange of words, shot the victim. The accused, on the other hand, claimed that the victim went up the running board of the truck, after pulling out a “balisong,” and held on to the windshield frame. When the victim lunged with his knife, the accused leaned far right, at the same time parrying the hand of the victim who switched to a stabbing position and, at that moment, the accused, who was already leaning almost prone on the driver’s seat, got his gun from the tool box and shot the victim. The Court considered the physical objective facts as not only consistent with, but confirming strongly, the plea of selfdefense. The direction and trajectory of the bullets would have been different had the victim been standing upright two or three meters to the left of the truck.

When the aggressor flees, unlawful aggression no longer exists When unlawful aggression which has begun no longer exists, because the aggressor runs away, the one making a defense has no more right to kill or even to wound the former aggressor. People vs Alconga There were two stages in the fight between the accused and the deceased. During the first stage of the fight, the accused in inflicting several wounds upon the deceased acted in self-defense, because then the deceased, who had attacked the accused with repeated blows, was the unlawful aggressor. But when the deceased after receiving several wounds, ran away, from that moment there was no longer any danger to the life of the accused who, being virtually unscathed, could have chosen to remain where he was and when he pursued the deceased, fatally wounding him upon overtaking him, Alconga was no longer acting in self-defense, because the aggression begun by the deceased ceased from the moment he took to his heels.

No unlawful aggression when there is agreement to fight Where the fight is agreed upon, each of the protagonist is at once assailant and assaulted, and neither can invoke the right of self-defense, because aggression which is an incident in the fight is bound to arise from one or the other of the combatants. When parties mutually agree to fight, it is immaterial who attacks or receives the wound first, for the first act of force is an incident of the fight itself and in no wise is it an unwarranted and unexpected aggression which alone can legalize self-defense.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA People vs Jaurigue Facts: The deceased was courting the accused in vain. One day, the deceased approached her, spoke to her of his love which she flatly refused, and he thereupon suddenly embraced and kissed her on account of which the accused gave him fist blows and kicked him. Thereafter, she armed herself with a fan knife, whenever she went out. One week after the incident, the deceased entered a chapel, went to sit by the side of the accused, and placed his hand on the upper part of her right thigh. Accused pulled out her fan knife and with it stabbed the deceased at the base of the left side of the neck, inflicting a mortal wound. Ruling: The means employed by the accused in the defense of her honor was evidently excessive. The chapel was lighted with electric lights, and there were already several people, including her father and the barrio lieutenant, inside the chapel. Under the circumstances, there was and there could be no possibility of her being raped. Note: The Supreme Court apparently considered the existence of unlawful aggression consisting in the deceased’s placing his hand on the upper portion of her right thigh. The accused was not given the benefit of complete selfdefense because the means employed was not reasonable. If the accused only gave the deceased fist blows or kicked him, to prevent him from going further in his attempt to commit an outrage upon her honor, she would have been completely justified in doing so.

There is self-defense even if the aggressor used a toy pistol provided the accused believed it was a real gun. Test of reasonableness of the means used Whether or not the means employed is reasonable, will depend upon the nature and quality of the weapon used by the aggressor, his physical condition, character, size and other circumstance, and those of the person defending himself, and also the place and occasion of the assault. Perfect equality between the weapon used by the one defending himself and that of the aggressor is not required, because the person assaulted does not have sufficient tranquility of mind to think, to calculate and to choose which weapon to use. When the one defending himself is a peace officer The peace officer, in the performance of his duty, represents the law which he must uphold. While the law on self-defense allows a private individual to prevent or repel an aggression, the duty of a peace officer requires him to overcome his opponent. Cases in which third requisite of self-defense considered present 1. When no provocation at all was given to the aggressor by the person defending himself; 2. When, even if a provocation was given, it was not sufficient; pr 24 | P a g e

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3. When, even if the provocation was sufficient, it was not given by the person defending himself; or 4. When, even if a provocation was given by the person defending himself, it was not proximate and immediate to the act of aggression Relatives that can be defended 1. 2. 3. 4.

Spouse Ascendants Descendants Legitimate, natural or adopted brothers or sisters, or relatives by affinity in the same degree 5. Relatives by consanguinity within the fourth civil degree Basis: the justification of defense of relatives by reason of which the defender is not criminally liable, is founded not only upon a humanitarian sentiment, but also upon the impulse of blood which impels men to rush, on the occasion of great perils, to the rescue of those close to them by ties of blood. Who are considered strangers? Any person not included in the enumeration of relatives mentioned in paragraph 2 of Art.11, is considered stranger for the purpose of paragraph 3. Hence, even a close friend or a distant relative is a stranger within the meaning of par. 3. Basis: the ordinary man would not stand idly by and see his companion killed without attempting to save his life. Elements of state necessity 1. The evil sought to be avoided actually exist 2. The injury feared be greater than that done to avoid it 3. There is no other practical and less harmful means of preventing it The state of necessity must not be caused by the negligence or violation of the law of the actor otherwise this benefit cannot be invoked. Under Art. 101, the civil liability shall be borne not by the actor but the ones benefited by the avoidance of the evil. Elements of fulfillment of duty 1. The offender acted in the performance of a duty or the awful exercise of a right or office 25 | P a g e

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2. The injury caused or the offense committed is the necessary consequence of the due performance of such right or office. The doctrine of “self-help” is Art. 429 of the New Civil Code justifies the act of the owner or lawful possessor of a thing to use force necessary to protect his proprietary or possessory rights. He must however exercise this right at the very moment that he is being deprived of his property. When possession has already been lost, he must resort to judicial process in reclaiming his property otherwise he could be liable for coercion. Elements of obedience to superior orders 1. An order has been issued by a superior 2. The order is for a legal purpose 3. The means used to carry out such order is lawful Even if the order of the superior is illegal, if it appear to be legal, and the subordinate is not ware of its illegality, the subordinate is not liable. Art. 12. Circumstance which exempt from criminal liability. – the following are exempt from criminal liability: 1.

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

When the imbecile15 or an insane person has committed an act which the law defines as a felony (delito), the courts 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. 2. A person under nine years of age 3. 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 Article 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformity with the provisions of this and the preceding paragraph, shall commit him to the care and 14

Included: Dementia praecox, kleptomania (if the defect produces irresistible force depriving him power of will), epilepsy, somnambulism, hypnotism, committing a crime while suffering from malignant malaria. Not included: feeblemindedness, pedophilia, and amnesia. 15 An imbecile is one who, while advance in age, has a mental development comparable to that of children between two and seven years old. One who is deprived completely of reason or discernment and freedom of the will at the time of committing the crime.

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4. 5. 6. 7.

custody of his family who shall be charged with his surveillance and education; otherwise, he shall be committed to the care of some institutions or person mentioned in said Article 80. Any person who, while performing a lawful act with due care, causes injury by mere accident without fault or intention of causing it. Any person who acts under the compulsion of an irresistible force. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. Any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause.

Imbecility distinguish from Insanity Imbecile is exempt in all cases from criminal liability, the insane is not so exempt if it can be shown that he acted during a lucid interval16. To constitute insanity, there must be complete deprivation of intelligence or that there be a total deprivation of the freedom of the will. Thus, mere abnormality of mental faculties is not enough especially if the offender has not lost consciousness of his acts. At most, it is only a mitigating circumstance. Procedure when the imbecile or the insane committed a felony The court shall order his confinement in one of the hospital or asylums established for persons afflicted, which he shall not be permitted to leave without first obtaining the permission of the court. But the court has no power to permit the insane person to leave the asylum without first obtaining the opinion of the Director of Health that he may be released without danger. Burden of Proof The defense must prove that the accused was insane at the time of the commission of the crime, because the presumption is always in favor of sanity. Evidence of insanity The evidence of insanity must refer to the time preceding the act under prosecution or to the very moment of its execution.

16

During lucid interval, the insane acts with intelligence

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Age of absolute irresponsibility raised to 15 years of age RA no. 9344, otherwise known as Juvenile Justice and Welfare Act of 2006, raised the age of absolute irresponsibility from nine (9) to fifteen (15) years of age. Under Section 6 of the said law, 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 subject to an intervention program as provided under Section 20 of the same law. A child above fifteen (15) years 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 subject to the appropriate proceedings in accordance with the same law. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforce in accordance with existing law. Periods of criminal responsibility 1. 2. 3. 4.

Absolute irresponsibility Conditional responsibility Full responsibility Mitigated responsibility

Discernment may be shown by (1) the manner the crime was committed, or (2) the conduct of the offender after its commission. Par. 4 Accident Elements 1. 2. 3. 4.

A person is performing a lawful acts; With due care; He causes an injury to another by mere accident; and Without fault or intention of causing it.

Par. 5 Compulsion of irresistible force Elements 1. That the compulsion is by means of physical force 2. That the physical force must be irresistible 28 | P a g e

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3. That the physical force must come from a third person Before a force can be considered to be an irresistible one, it must produce such an effect upon the individual that, in spite of all resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime. Passion or obfuscation cannot be irresistible force. These fall under mitigating circumstance. Par. 6 impulse of uncontrollable fear Elements 1. That the threat which causes the fear is of an evil greater than or at least equal to, that which he is required to commit; 2. That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it Distinction between irresistible force and uncontrollable fear In irresistible force, the offender uses violence or physical force to compel another person to commit a crime; in uncontrollable fear, the offender employs intimidation or threat in compelling another to commit a crime. Par. 7 insuperable or lawful cause Elements 1. That an act is required by law to be done 2. That a person fails to perform such act 3. That his failure to perform such act was due to some lawful or insuperable cause Absolutory Causes 1. 2. 3. 4. 5.

Spontaneous Desistance (Art. 6) Accessories who are exempt from criminal liability (Art. 20) Death or physical injuries inflicted under exceptional circumstances (Art. 247) Persons exempt from criminal liability for theft, swindling and malicious Mischief (Art. 332) Instigation17

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Must be done by public officer not by private individual Instigator induces the would be accused to commit a crime, hence he becomes a co-principal. It will result to the acquittal of the accused. On the other hand, entrapment is not an absolutory cause. Entrapment ways and means are resorted to for the capture of lawbreaker in the execution of his criminal plan. This is not a bar for the

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6. Legal ground for trespass 7. Legal ground for arbitrary detention Art. 13. Mitigating Circumstance. – The following are mitigating circumstances; 1. 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. 2. That the offender is under eighteen year of age or over seventy years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 80. 3. That the offender had no intention to commit so grave a wrong as that committed. 4. That sufficient provocation or threat on the part of the offended party immediately preceded the act. 5. That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same degrees. 6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. 7. 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; 8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus restricts his means of action, defense, or communications with his fellow beings. 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. 10. And, finally, any other circumstances of a similar nature and analogous to those above mentioned.

prosecution and conviction of the lawbreaker. A buy-bust operation conducted in connection with illegal drugrelated offenses is a form of entrapment.

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Classes of mitigating circumstances 1. Ordinary Mitigating - those enumerated in sub-sections 1 to 10 of Article 13 2. Privilege Mitigating – a. Art. 68. Penalty to be imposed upon a person under 18 years of age. – When the offender is a minor under 18 years of age and his case falls under the provisions of the Juvenile Justice and Welfare Act, the following rules shall be observed. i. A person under 15 years of age, and a person over 15 and under 18 years of age who acted without discernment, are exempt from criminal liability; ii. Upon a person over 15 and under 18 years of age who acted with discernment, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. b. 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 xxx, provided that the majority of such conditions be present. c. Art. 64. Rules for the application of penalties which contain three periods. – in case 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 x x x, the courts shall observe for the application to whether there are or are not mitigating or aggravating circumstances: xxx (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 circumstance. Distinctions 1. Ordinary mitigating is susceptible of being offset by any aggravating circumstance; while privilege mitigating cannot be offset by aggravating circumstance. 2. Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect of applying the penalty provided by law for the crime in its minimum period, in case of divisible penalty; whereas, privilege mitigating produces the effect of imposing upon the offender the penalty lower by one or two degrees than that provided by law for the crime. Is the enumeration of mitigating circumstances exclusive? No.

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA People vs Narvaez The appellant’s act in killing the deceased was not justifiable, since not all the elements for justification are present. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack. He should, therefore, be held responsible for the death of the victims, but he could be credited with the special mitigating circumstances of incomplete defense, pursuant to par. 6, Art. 13 of the RPC.

Note: unlawful aggression must be present, it being an indispensable requisite When two of the three requisites are present in three classes of defenses (incomplete selfdefense, defense of relatives and defense of stranger), the case must not be considered as one in which an ordinary or generic mitigating circumstance is present. Instead, it should be considered a privilege mitigating circumstance referred to in Art. 69. Par. 4 What is provocation? By provocation is understood any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating any one. Requisites: 1. That the provocation must be sufficient 2. That it must originate from the offended party 3. That the provocation must be immediate to the act, i.e., to the commission of the crime by the person who is provoked Par. 5 Requisites: 1. That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees; 2. That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense. Par. 6 Requisites: 1. The accused acted upon impulse 2. The impulse must be so powerful that it naturally produced passion or obfuscation 32 | P a g e

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Why passion or obfuscation is mitigating? When there are causes naturally producing in a person powerful excitement, he loses his reason and self-control, thereby diminishing the exercise of his will power. Par. 7 Requisites of voluntary surrender 1. That the offender had not been actually arrested 2. That the offender voluntary surrendered himself to a person in authority or to the latter’s agent 3. That the surrender was voluntary Requisites of plea of guilty 1. That the offender spontaneously confessed his guilt 2. That the confession of guilt was made in open court, that is, before the competent court that is to try the case 3. That the confession of guilt was made prior to the presentation of evidence for the prosecution18 Par. 8 physical defect must restrict means of action, defense, or communication with fellow beings. Does par. 8 apply when the deaf-mute or the blind is educated? This paragraph does not distinguish between educated and uneducated deaf-mute or blind persons. Par. 9. Requisites: 1. That the illness of the offender must diminish the exercise of his will-power 2. That such illness should not deprive the offender of consciousness of his acts Par. 10. 1. Over 60 years old with failing sight, similar to over 70 years of age mentioned in par. 2 2. Outraged feeling of owner of animal taken for ransom analogous to vindication of grave offense 3. Outraged feeling of creditor, similar to passion and obfuscation mentioned in par. 6 4. Impulse of jealous feeling, similar to passion and obfuscation 18

The plea must be made before trial begins

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5. Manifestations of Battered Wife Syndrome, analogous to an illness that diminishes the exercise of will power 6. Voluntary restitution of property, analogous to voluntary surrender 7. Extreme poverty and necessity, similar to incomplete justification based on state of necessity 8. Testifying for the prosecution, analogous to plea of guilty Art. 14. Aggravating circumstances. — The following are aggravating circumstances: 1. That advantage be taken by the offender of his public position. 2. That the crime be committed in contempt or with insult to the public authorities. 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 is be committed in the dwelling of the offended party, if the latter has not given provocation. 4. That the act be committed with abuse of confidence or obvious ungratefulness. 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. 6. That the crime be committed in the night time, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense. 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. 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. 8. That the crime be committed with the aid of armed men or persons who insure or afford impunity. 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. 10. That the offender has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

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11. That the crime be committed in consideration of a price, reward, or promise. 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. 13. That the act be committed with evidence premeditation. 14. That the craft, fraud or disguise be employed. 15. That advantage be taken of superior strength, or means be employed to weaken the defense. 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. 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act. 18. That the crime be committed after an unlawful entry. There is an unlawful entry when an entrance of a crime a wall, roof, floor, door, or window be broken. 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). 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commissions. Is the list of aggravating circumstance exclusive? Yes, if not included in the list, the circumstance will not be considered as aggravating, i.e., non registered firearm. Four kinds of aggravating circumstances 1. Generic – those that can generally apply to all crimes, e.g. dwelling, nighttime, or recidivism (par. 1,2,3,4,5,6,9,10,14,18,19, and 20).

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2. Specific – those that apply only to particular crimes, e.g. ignominy in crimes against chastity or cruelty and treachery in crimes against persons (par. 3 except dwelling, 15, 16, and 21) 3. Qualifying – those that change the nature of the crime, e.g. treachery or evident premeditation qualifies the killing of a person to murder. 4. Inherent – those that must of necessity accompany the commission of the crime, e.g. evident premeditation is inherent in robbery, theft, estafa, adultery and concubinage. Can one fact be a basis of two or more mitigating circumstance? No, unless closely related to the main fact An aggravating circumstances, even if not alleged in the information, may be proven over the objection of the defense. This is true only as regards a generic aggravating circumstance. As regards a qualifying aggravating circumstance, the same must be alleged in the information because it is an integral part of the offense. Taking advantage of official position Test: Did the accused abuse his office in order to commit the crime? If yes, then this circumstance is present. It is considered present when the offender falsifies a document in connection with the duties of his office which consist of either making or preparing or otherwise intervening in the preparation of a document. In contempt of or with insult to public authorities 1. The public authority is engaged in the discharge of his duties 2. Offender knows the identity of the public authority 3. The crime was committed in his presence It must not be against a person in authority for then the crime would be direct assault and this circumstance will be absorbed being inherent therein. And if it were, the aggravating circumstance would then be rank. Age, sex, rank19 and Dwelling20 There are four circumstances in this paragraph but only one credit should be given if all are present for they all refer to the circumstance of lack of respect due to the offended. 19

Rank should be given a plain, ordinary meaning, hence refers to high social position or standing. It is absorbed in the crime of direct assault since rank is an element thereof. 20 Dwelling includes dependencies, staircase, and enclosures under the house. It is not necessary that the house be owned by the offended. It includes a room in a boarding house. Home is that which the law seeks to protect or uphold against any intruder whether the dweller is lessee, a boarder or a bed spacer. A dwelling must be a building or structure exclusively used for rest and comfort.

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Abuse of confidence/obvious ungratefulness 1. 2. 3. 4.

Offended had trusted the offender Offender abused such trust Such abuse of confidence facilitated commission of the crime The confidence between the parties must be immediate and personal

Committed in the palace of the Chief Executive, etc. 1. Performance of function is necessary only in offices where public authorities are engaged in the performance of their duties. It is not necessary in the circumstances of the offense being committed in the palace of the Chief of Executive, in a placed devolved to religious worship or in the presence of the Chief Executive. 2. Offender must have sought any of the four places for the commission of the crime. Nighttime21, uninhabited place22, band23, aid of armed men The crime must be committed exclusively at nighttime and not started at daytime. The crime must be covered by darkness. Elements of aid of armed men 1. Armed men or persons took part in the commission of the crime, directly or indirectly, and 2. The accused availed himself of their aid or relied upon them when the crime was committed. On the occasion and by the means of calamity or misfortune The calamity is the means employed to commit the crime.

21

Nighttime is the period of darkness beginning at dusk and ending at dawn or from sunset to sunrise. Uninhabited place is determined by the reasonable possibility of the victim receiving some help or where there are no people or any number of houses within a perimeter of less than 200 meters. 23 Band consists of more than three (at least four) armed malefactors organized with the intention of carrying out any unlawful design. 22

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Recidivism24, reiteracion25, habitual delinquency26, and quasi-recidivism27 

Final judgment means executor o Fifteen days have elapse from its promulgation without the convict appealing the conviction o Offender started serving sentence o He expressly waived his right to appeal o He applied for probation

Price, promise or reward The price, promise or reward is the primary consideration in the commission of the crime. Elements of Evident Premeditation 1. The time when the offender determined to commit the crime 2. An act manifestly indicating that he has clung his determination 3. Sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act Craft28, fraud29, disguise30 Not aggravating if it did not facilitate the commission of the crime or it is not taken advantage by the offender in the course of assault. Abuse of Superior Strength31 Treachery (alevosia) It is a specific aggravating circumstance because it is present in crimes against persons only. 24

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 the RPC. There must be two convictions. 25 In reiteracion, the offender has been previously punished (has served sentence). The first offense was punished with an equal or greater penalty; or he committed two or more crimes previously where he was meted lighter penalty. The rationale here is that despite the previous punishment, offender did not learn his lesson. 26 A person is a habitual delinquent if within a period of 10 years from the date of his release or last conviction of the crimes falsification, Robbery, Estafa, Theft, Serious or Less Serious Physical Injuries he is found guilty of said crimes a third time or oftener. 27 Quasi-recidivism is when the offender has been previously convicted by final judgment and before beginning to serve such sentence, or while serving the same, he committed a felony. 28 Craft is cunning or intellectual trickery or chinanery resorted by the accused to carry out his evil design. 29 Fraud constitutes deceit manifested by insidious words or machinations. 30 Disguise is resorted to conceal identity. 31 Abuse of Superior Strength is intentionally employing excessive force out of proportion to the means of defense available to the offended party.

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Treachery must: (a) insure that the offended party was not able to put up any defense, not even token defense; and (b) the means, manner, and form was consciously and deliberately chosen. Treachery absorbs both nighttime and taking advantage of superior strength in the light of the circumstances of this case. Ignominy32 and cruelty33 Ignominy relates to moral suffering (adding insult to injury) whereas cruelty to physical suffering (adding salt to injury). Ignominy was not appreciated where the sexual assault was not shown as having been done by the accused to put the victim to shame before killing him. The number of wounds alone does not indicate cruelty as it is essential to show that these were inflicted unnecessarily while the victim was still alive to prolong his physical suffering. Unlawful entry, breaking of door, etc. There is unlawful entry when ab entrance is effected by a way not intended for that purpose. It must be for entry not exit. But breaking a door to enter is not unlawful entry since this is covered by par. 9 which states that “as a means to the commission of the crime a wall, roof, door, or window be broken” showing that unlawful entry excludes ingress by means of such breaking. Aid of minor, use of motor vehicle These are distinct circumstances: with the aid of minor showing greater perversity of the offender in educating a minor on how to commit a crime especially with R.A. 9344 which absolutely exempted from criminal liability minors 15 years old or under. The use of motor vehicle is considered when purposely chosen to facilitate the commission of the offense or when it is shown that without it the offense could not have been committed or when it was intentionally sought to insure the success of the act. What is aggravating is the use of motor vehicle to commit the crime not to escape. “other similar means” should refer to other means of transportation that are similar to motor vehicle, e.g. motorcycles under the principle of ejusdem generis. Pedicab (padyak) is not included because not motorized. It is not aggravating if the vehicle was not used directly or indirectly to facilitate the crime. 32

Ignominy pertains to the moral order which adds disgrace and obloguy to the material injury caused by the crime. It produces more suffering on account of its humiliating effects. 33 There is cruelty when the culprit delights in making his victims suffer slowly and gradually, causing unnecessary moral and physical pain in the consummation of the criminal act which he intended to commit.

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The use by criminal of motorized means of conveyance to commit the crime is penalized because they pose difficulty to the authorities in apprehending them. 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 in the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender. The intoxication of the offender shall be taken into consideration as a mitigating circumstances when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance. Alternative circumstances 1. Relationship – spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, relatives by affinity in the same degree of the offender, stepfather or stepmother, stepson or stepdaughter But the relationship between uncle and niece is not covered by any of the relationship mentioned. As a rule, relationship is mitigating in crimes against property by analogy to the provisions of Art. 332 because the law considers it as private matters. Thus, relationship is mitigating in the crimes of robbery, usurpation, fraudulent insolvency and arson. Under Art. 332 of the Code, no criminal, but only civil liability, shall result from commission of the crime of theft, swindling or malicious mischief committed or caused mutually by spouses, ascendants, and descendants, or relatives by affinity in the same line, brothers and sisters and brothers-in-law and sisters-in-law, if living together. When the crime against persons is any of the serious physical injuries, even if the offended party is a descendant of the offender, relationship is aggravating. 40 | P a g e

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Relationship is mitigating in the crime of trespass to dwelling. Relationship is neither mitigating nor aggravating, when relationship is an element of the offense, e.g., Parricide, adultery and concubinage. In crimes against chastity, relationship is always aggravating. 2. Intoxication – a. Mitigating – if the intoxication is not habitual or if not subsequent to the plan to commit a felony b. Aggravating – if the intoxication is habitual or it is intentional 3. Degree of education and instruction of the offender 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. For grave and less grave felonies: principals, accomplices, and accessories For light felonies:  Punishable only when they have been consummated  But when light felonies are committed against persons or property, they are punishable even if they are only in the attempted or frustrated stage of execution  Only principals and accomplices are liable for light felonies  Accessories are not liable for light felonies, even if they are committed against persons or property Why are accessories not liable for light felonies? Because the law does not deal with trifles (de minimis non curat lex). Also two degrees lower than arresto menor is not possible. To whom does the word “persons” in the Title refer? To natural persons only; juridical persons cannot commit a crime which requires a willful purposed, voluntariness or malicious intent.

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Art. 17. Principals. — The following are considered principals: 1. Those who take a direct part in the execution of the act; 2. Those who directly force or induce others to commit it; 3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished. The three kinds of principals are principal by inducement, by direct participation, and by indispensable cooperation. Principals by direct participation are those who materially execute the crime. They actually perform acts necessary for the commission of the offense. The inducer may be a principal, an accomplice or without any liability at all. He is principal by inducement if his inducement should be obeyed. His utterance must be of such a nature and made in such a manner as to become the determining cause of crime. Where the words uttered did not make any great dominance or influence on the offenders or is no longer necessary as the offenders were already determined to commit the offending acts, the utterance will not make utterer an inducer. Principals by inducement are liable even if they did not appear in the crime scene because the crime would not have been committed without the inducement and because they induce others to commit the crime so they do not have to appear or do the “dirty work.” To be considered as a principal by indispensable cooperation, one must directly participate in the criminal design by another act of such importance that the crime would not have been committed without him. Its requisites are: (1) the participation of the accused in the criminal resolution, and (2) performance by him of another act indispensable to the accomplishment of the crime. 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. Accomplices are those who are not principals but cooperate in the execution of the offense by previous or simultaneous acts. They are also called accessories before the fact. An accomplice does not have previous agreement or understanding or is not in conspiracy with the principal by direct participation.

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In case of doubt, the participation of the offender will be considered that of an accomplice rather than that of a principal. People vs Tan The prosecution was not able to establish conspiracy in the killing of the victim; thus, appellant Jose is guilty only as an accomplice. According to a witness, she heard Jose telling and pleading his brother to stop. Also, as held by the Supreme Court, when doubt exists whether the accused acted as principal or accomplice, the court should favor the lesser or milder liability.

May a co-conspirator be held liable as an accomplice only? Yes. In the case of People vs Anin, it was held that if the over acts of the accused, although done with knowledge of the criminal intent of his co-accused was not indispensable to the homicidal assault, the accused should be held liable only as an accomplice in the killing of the victim. 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: 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, 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. 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. The exemption provided for in this article is based on the ties of blood and the preservation of the cleanliness of one’s name, which compels one to conceal crimes committed by relatives so near as those mentioned in this article. Accessory is not exempt from criminal liability even if the principal is related to him, if such accessory (1) profited by the effect of the crime, or (2) assisted the offender to profit by the effects of the crime. 43 | P a g e

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Is a public officer who, with evident abuse of his office, furnished the means of escape to his brother who had committed murder criminally liable as accessory? Such a public officer does not incur any criminal liability. Ties of blood or relationship constitutes a more powerful incentive that the call of duty. Furthermore, Art. 20 does not grant the benefits of exemption only to accessories who profited or helped the offender profit by the effects of the crime. This is the only case where the accessory who is related to the offender incurs criminal liability. Penalties34 People vs Dela Torre The prosecution asked the court to modify the RTC decision by imposing the supreme penalty of death on the accused. Being violative of the right against double jeopardy, the instant appeal filed by the prosecution cannot prosper. The rule is clear --- the prosecution cannot appeal on the ground that the accused should have been given a more severe penalty. Besides, even assuming that the penalties imposed by the RTC were erroneous, these cannot be corrected by this court on an appeal by the prosecution. Said the court: “whatever error may have been committed by the lower court was merely an error of judgment and not of jurisdiction, it did not affect the intrinsic validity of the decision. This is the kind of error that can no longer be rectified on appeal by the prosecution no matter how obvious the error may be. Note: 1. 2. 3.

If the court acquitted the accused, the prosecution cannot appeal to reverse the acquittal If the court convicted the accused and imposed an erroneous penalty, the prosecution cannot appeal to change the penalty to be imposed The accused can appeal (when the accused appeal in a criminal case, the case is wide open. The court can then correct any error assigned or not)

Under RPC and Special Law like RA 9165, do we still have death penalty? Yes, death penalty is merely prohibited. It is still a prescribed penalty but it can no longer be imposed. Prescribed penalty vs imposed penalty Reclusion perpetua – prescribed penalty; after considering mitigating and aggravating circumstances the penalty will be the imposed penalty

34

Penalties are the punishment imposed by lawful authority upon a person who commits a deliberate or negligent act, or who omits to act when the law requires them to do so.

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Read RA 10951 (its application to Art. 9 and Art. 26, section 100) Light felony – less than 40,000 Correccional – 40,000 – not exceeding 1.2 million Afflictive – exceeding 1.2 million Art. 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission. 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. 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 pardon by the offended party does not extinguished criminal action Even if the injured party already pardoned the offender, the fiscal can still prosecute the offender. Such pardon by the offended party is not even a ground for the dismissal of the complaint or information. Reason: A crime is an offense against the State. In criminal case, the intervention of the aggrieved parties is limited to being witness for the prosecution. Except as provided in Art. 344 Concubinage, adultery, seduction, acts of lasciviousness, abduction, defamation – private crimes; only the offended party can initiate the criminal prosecution The offended party in the crime of adultery and concubinage cannot institute criminal prosecution, if he shall have consented or pardoned the offenders. The pardon here may be implied, as continued inaction of the offended party after learning of the offense. The second par. of Art. 344 requires also that both offended party must be pardoned by the offended party. In the crimes of seduction, abduction, rape or acts of lasciviousness, there shall be no criminal prosecution if the offender has been expressly pardoned by the offended party or her parents, grandparents, or guardian, as the case may be. The pardon must be express. Pardon under Art. 344 must be done before the institution of criminal prosecution. The only act that extinguishes the penal action after the institution of criminal action is the marriage between the offender and the offended party.

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Marriage must be entered in good faith. Last paragraph of Art. 344 provides that the pardon benefits co-principal, accomplices and accessories. Pardon under Art. 344 is only a bar to a criminal prosecution. Even under Art. 344, the pardon by the offended party does not extinguish criminal liability, it is only a bar to criminal prosecution. Art. 89, providing for total extinction of criminal liability, does not mention pardon by the offended party as one of the causes of totally extinguishing criminal liability. People vs Tadulan It would appear that the initial desistance of Estela was subject to certain conditions which were not complied with, and for which reason, Estela proceeded with the filing of the criminal complaint. Upon such circumstances, it is clear to the mind of the Court that the complainant has not expressly pardon the accused. In addition, even if it be assumed for the sake of argument that the initial desistance of the said mother from taking any action against the accused constitutes pardon, it is clear that such pardon is ineffective without the express concurrence of the offended minor herself. Pardon must be granted not only by the parents of an offended minor but also by the minor herself in order to be effective as an express pardon under Art. 344 of the RPC.

MEMORIZE! Art. 24. Measures of prevention or safety which are not 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. Why are they not considered penalties? They are not penalties because they are not imposed as a result of judicial proceedings. Those mentioned in paragraphs no. 1,3 and 4 are merely preventive measures before conviction of the offender. 46 | P a g e

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The concept of penalty is suffering. Judicial findings of guilt must first be considered. The “fines” mentioned in par. 4 are not imposed by the court, because when imposed by the court, they constitute a penalty.

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Are there penalties which are principal and accessory at the same time? Yes 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 Penalties35 Capital punishment: Death. 36 Afflictive penalties: Reclusion perpetua, Reclusion temporal, Perpetual or temporary absolute disqualification, Perpetual or temporary special disqualification, Prision mayor. Correctional penalties: Prision correccional, Arresto mayor, Suspension, Destierro. Light penalties: Arresto menor, Public censure. Penalties common to the three preceding classes: Fine, and Bond to keep the peace. 35

Those that are expressly imposed by the court in the judgment of conviction RA 9346 prohibited the imposition of the death penalty, and provided for the imposition of the penalty of reclusion perpetua in lieu of death. 36

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Accessory Penalties37 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 of as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it less than 200 pesos. Chapter Three DURATION AND EFFECTS OF PENALTIES Section One. — Duration of Penalties Art. 27. Reclusion perpetua. — Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon. 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. 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.

37

Those that are deemed included in the imposition of principal penalty

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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. Duration of each of different penalties 1. Reclusion perpetua – 20 yrs and 1 day to 40 years 2. Reclusion temporal – 12 years and 2 day to 20 years 3. Prision mayor and temporary disqualification – 6 years and 1 day to 12 years, except when disqualification is accessory penalty, in which case its duration is that of the principal penalty 4. Prision correccional, suspension and destierro – 6 months and 1 day to 6 years, except when suspension is an accessory penalty, in which case its duration is that of the principal penalty 5. Arresto mayor – 1 month and 1 day to 6 months 6. Arresto menor – 1 day to 30 days 7. Bond to keep the peace - the period during which the bond shall be effective is discretionary on the court. 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 be 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. Period of preventive imprisonment deducted from term of imprisonment. — Offenders 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 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.

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If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment for a period equal to or more than 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. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). When is there preventive imprisonment38? The accused undergoes preventive imprisonment when the offense charge is nonbailable, or even if bailable he cannot furnish the bail. Full time or four-fifths of the time during which offenders have undergone preventive imprisonment shall be deducted from the penalty imposed. The convict to be released immediately if the penalty imposed after trial less than the full time or four-fifths of the time of the preventive imprisonment. Accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal or more than the possible maximum imprisonment for the offense charge. Offenders not entitled to the full time or four-fifths of the time of preventive imprisonment 1. Recidivists or those convicted previously twice or more times of any crime (including habitual delinquent) 2. Those who, upon being summoned for the execution of their sentence, failed to surrender voluntarily39 Good conduct allowances – ground for partial extinction of criminal liability; before only applicable to offender in final conviction; now applicable to preventive imprisonment of detention prisoners Garcia vs Executive Secretary – is the provision of Art. 29 applicable to violations of Articles of War? Yes, in suppletory capacity; court martial case is not strictly a criminal case but in the nature of criminal case 38

Pre-sentence benefit; the trial proceeds even if the accused is already released in order to consider civil liability Does not refer to failure to surrender voluntarily after the commission of the crime. It says, “when upon being summoned for the execution of their sentence.” 39

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Is bond to keep the peace a penalty? Yes, Art. 25. Duration: discretionary on the part of the court. Section Two. — 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 employments 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 employments 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 employments 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.

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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, 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, is 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. Effects: 1. A pardon shall not restore the right to hold public office or the right to suffrage. Exception: when any or both such rights is or are expressly restored by the terms of the pardon (Cristobal vs Labrador) 2. It shall not exempt the culprit from the payment of civil indemnity. The pardon cannot make an exception to this rule. Limitations 1. The power can be exercised only after conviction 2. That such power does not extend to cases of impeachment (Cristobal vs Labrador) Pardon granted in general terms does not include accessory penalty

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ROBLES, WINDY M. 2013-0266 CRIMINAL LAW REVIEW – ATTY. DIWA Cristobal vs Labrador Although the rule is that pardon does not restore the right to hold public office or the right of suffrage, unless expressly stated in the pardon, the exception is where the facts and circumstances of the case already show that the purpose of the Chief Executive is precisely to restore those rights. In whereas clause – no longer allowed to run for public office Dispositive portion – allows to run for public office The nature of the pardon is absolute because the controlling portion is the dispositive provision which says “he is fully restored with his political and civil rights.”

Pardon by the Chief Executive distinguished from Pardon by Offended Party 1. Pardon by the Chief Executive extinguishes criminal liability of the offender; such is not the case when the pardon is given by the offended party 2. Pardon by the Chief Executive cannot include civil liability which the offender must pay; by the offended party can waive the civil liability which the offender must pay 3. In cases where the law allows pardon by the offended party, the pardon should be given before the institution of criminal prosecution and must be extended to both offenders; whereas, pardon by the Chief Executive is granted only after conviction and may be extended to any of the offenders 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.

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Art. 39. Subsidiary penalty. — If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the nest preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: 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 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). What is subsidiary imprisonment? Subsidiary imprisonment is a penalty imposed upon the accused and served by him in lieu of the fine which he fails to pay on account of insolvency. The culprit cannot be made to undergo subsidiary imprisonment unless the judgment expressly so provides. can subsidiary imprisonment be imposed if the penalty is prision mayor? No, penalty mus not be higher than prision correctional Is subsidiary imprisonment applicable in special criminal case? Yes, subsidiary imprisonment is applicable for violations of BP Blg. 22 If the penalty constitutes only fine, can subsidiary imprisonment be applied? Yes Highest minimum wage rate not 8 pesos If the offender is already solvent, he may be required to pay for the fine

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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 sentence, unless such accessory penalties have been expressly remitted in the pardon. 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 too 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. 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. Outline: 1. Every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instruments or tools used in the commission of the crime

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2. The proceeds and instruments or tools of the crime are confiscated and forfeited in favor of the Government 3. Property of a third party not liable for the offense, is not subject to confiscation and forfeiture 4. Property not subject of lawful commerce shall be destroyed People vs Jose Insofar as the car used in the commission of the crime is concerned, the order of the court a quo for its confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered to deliver its possession to intervenor Filipas Investment and Finance Corporation.

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 is general terms, it shall be understood as applicable to the consummated felony. Art. 47. 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 be 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.

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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. Two kinds of complex crimes 1. When a single act constitutes two or more grave or less grave felonies (compound crime) 2. When an offense is a necessary means for committing the other (complex crime proper) Single act of throwing a hand grenade producing murder and multiple attempted murder (People vs Guillen) – compound complex crime of murder with multiple attempted murders People vs Tabaco Four counts of murder and complex crime of homicide with frustrated homicide Contention: four counts of murder should be considered as complex crime Ruling: No. The firing of several bullets by Tabaco, although resulting from continuous bursts of gunfire, constitutes several acts. Each person, filled by different shots, is a victim of a separate crime of murder. There is no showing that only a single missile passed through the bodies of all four victims. The killing of each victim is thus separate and distinct from the other.

No complex crime if two offenses involved are punishable by two statutes. Malversation by falsification of a public document is a complex crime. People vs Jose Crime of forcible abduction with rape, separate cases of rape Even while the first act of rape was being performed, the crime of forcible abduction was already consummated, so that each of the three succeeding rapes cannot be complexed with forcible abduction. People vs Domingo There is no complex crime of forcible abduction with rape if the primary purpose of the accused is to commit rape. The appellant should be convicted only of rape. His forcible abduction of AAA was absorbed by the rape considering that his real objective in abducting her was to commit the rape.

No complex crime, when one offense is committed to conceal the other; estafa through fascification of commercial documents What is the penalty to be imposed in a complex crime? The penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. 58 | P a g e

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e.g. complex crime of homicide with frustrated homicide (with one mitigating and no aggravating circumstance, what should be the penalty? Reclusion Temporal in its maximum, regardless of the existence of one mitigating circumstance; Art. 64 will not apply because Art. 48 is a special provision which contemplates a special situation. What is a privilege mitigating circumstance is present? Privilege mitigating circumstance will be considered Why is Art. 48 favorable to the accused? Art. 48 could have no other purpose than to prescribe penalty lower than the aggregate of the penalties for each offense, if imposed separately. Is there a special complex crime? Yes. What is a special complex crime or composite crimes? This composes of several crimes to which the law provides a specific penalty, e.g. robbery with homicide, robbery with rape, kidnapping with serious physical injuries or rape with homicide. People vs Talusan Where the law provides a single penalty for two or more component offenses, the resulting crime is called a special complex crime. The crime committed was kidnapping with rape by sexual assault. Enrile vs Salazar Murder, arson, and robbery are mere ingredients of the crime of rebellion, as means “necessary” for the perpetration of the offense. Such common offenses are absorbed or inherent in the crime of rebellion.

When a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the defendant can be convicted of the other. Is it possible that one conspirator be held liable for Homicide while the other is for murder? Yes People vs Cabillian Art. 62 par. 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. One of the accused is guilty or treachery. Treachery will not aggravate the case of the other. Conspiracy does not mean same penalty will be applied to all the accused.

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A continued crime is different from a continuing crime Continued crime is not a complex crime, because the offender in continued or continuous crime does not perform a single act, but a series of acts, and one offense is not necessary means of committing the other. Not being a complex crime, the penalty for continued crime is not to be imposed in the maximum period. Continuing crime is more of remedial law concept in determining venue. Santiago vs Garchitorena Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. — 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 be 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. 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.

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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. 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.

Principals Accomplices Accessories

Consummated 0 1 2

Frustrated 1 2 3

Attempted 2 3 4

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. — 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. 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. 61 | P a g e

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In lowering the degree, refer to Art. 71 (Graduated scales) 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. 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. Arts. 25, 70 and 71, compared: Under Art. 25, penalties are classified into (1) principal and (2) accessory penalties. The principal penalties are subdivided into capital, afflictive, correctional, and light. Art. 70 classifies penalties, for the purpose of the successive, service of sentences, according to their severity. Art. 71 provides for the scales which should be observed in graduating the penalties by degrees in accordance with Art. 61. Note that in Art. 71, destierro is placed above arresto menor. The reason for this is that destierro, being classified as a correctional penalty, is higher than arresto

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menor, a light penalty. Art. 71, par. 2, speaks of “lower or higher” penalty. Aart. 70 speaks of “severity.” Under Art.70, destierro is placed under arresto menor, according to their respective severity. Destierro is considered lighter than arresto menor. Under Art. 25, destierro is placed above arresto menor, because it is classified as a correctional penalty. In art. 71, the different principal penalties provided for in Art. 25 are classified and grouped into two graduated scales. Under Scale No. 1, all personal penalties, such as deprivation of life and liberty, are grouped together. Under Scale no. 2 are grouped all penalties consisting in deprivation of political rights. Art. 61 should be correlated with Art. 71 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. 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 63 | P a g e

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corresponding penalties upon those guilty as principals of the frustrated felony, or of attempt to commit the same, and upon accomplices and accessories. The lower penalty shall be taken from the graduated scale in Art. 71 The indivisible penalties are: (1) death, (2) reclusion perpetua, and (3) public censure. The divisible penalties are reclusion temporal down to arresto menor. The divisible penalties are divided into three periods, namely: (1) the minimum, (2) the medium, (3) the maximum. First rule. When the penalty is single and indivisible. A single and indivisible penalty is reclusion perpetua. This is the penalty for kidnapping and failure to return a minor. In Scale no. 1 in Art. 71, the penalty immediately following reclusion perpetua is reclusion temporal. The penalty next lower in degree, therefore, is reclusion temporal. Second rule. When the penalty is composed of two indivisible penalties. Two indivisible penalties are reclusion perpetua to death. This is the penalty for parricide. The penalty immediately following the lesser of the penalties, which is reclusion perpetua is reclusion temporal. When the penalty is composed of one or more divisible penalties to be imposed to their full extent One divisible penalty to be imposed to its full extent is reclusion temporal; and two divisible penalties to be imposed to their full extent are prision correccional to prision mayor. The penalty immediately following the divisible penalty of reclusion temporal in Scale no. 1 of Art. 71 is prision mayor; and the penalty immediately following the lesser of the penalties of prision correctional to prision mayor is arresto mayor. Third rule. When the penalty is composed of two indivisible penalties and the maximum period of a divisible penalty The penalty for murder is reclusion temporal in its maximum period to death. Reclusion perpetua, being between reclusion temporal and death, is included in the penalty. Thus, the penalty for murder consists in two indivisible penalties of death and reclusion perpetua and one divisible penalty of reclusion temporal in its maximum period.

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The proper divisible penalty is reclusion temporal. The penalty immediately following reclusion temporal is prision mayor. Under the third rule, the penalty next lower is composed of medium and minimum periods of reclusion temporal and the maximum of prision mayor. Illustration: Death Reclusion perpetua Reclusion temporal Maximum Medium Minimum Prision Mayor Maximum Medium Minimum When the penalty is composed of one indivisible penalty and the maximum period of a divisible penalty Reclusion temporal in its maximum period to reclusion perpetua: the same rule shall be observed in lowering the penalty by one or two degrees. Fourth rule. When the penalty is composed of several periods The word “several” in relation to the number of periods, means consisting in more than two periods. Hence, the fourth contemplates a penalty composed of at least three periods. The several periods must correspond to different division penalties.

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Illustration: Reclusion temporal Maximum Medium Minimum Prision mayor Maximum Medium Minimum Prision Correccional Maximum Medium Minimum Fifth rule. When the penalty has two periods The penalty next lower than prision correccional in its minimum and medium periods is arresto mayor in its medium and maximum periods. Prision Correccional Maximum Medium Minimum Arresto Mayor Maximum Medium Minimum When the penalty has one period If the penalty is any one of the three periods of a divisible penalty, the penalty next lower in degree shall be that period next following the given penalty. Thus, the penalty immediately inferior to prision mayor in its maximum period is prision mayor in its medium period. Note: Mitigating and aggravating circumstance are disregarded in the application of the rules for graduating penalties. It will be noted that each paragraph for the felony or crime. Hence, in lowering the penalty, the penalty prescribed by the RPC for the crime is the basis, without regard to the mitigating or aggravating circumstance which attended the commission of the crime. It is only after the penalty next lower in degree is already determined that the mitigating and/or aggravating circumstances should be considered. 66 | P a g e

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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. 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, is within a period of ten years from the date of his release or last conviction of the crimes of serious or less

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serious physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener. 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 in the penalty in its entirety

Time included in its minimum period

Time included in its medium period

Time included in its maximum

Reclusion temporal

From 12 years and 1 day to 20 years.

From 12 years and 1 day to 14 years and 8 months.

From 14 years, 8 From 17 years, 4 months and 1 day months and 1 day to 17 years and 4 to 20 years. months.

Prision mayor, absolute disqualification and special temporary disqualification Prision correccional, suspension and destierro

From 6 years and 1 day to 12 years.

From 6 years and 1 day to 8 years.

From 8 years and 1 day to 10 years.

From 6 months and 1 day to 6 years.

From 6 months and 1 day to 2 years and 4 months.

From 2 years, 4 From 4 years, 2 months and 1 day months and 1 day to 4 years and 2 to 6 years. months.

Arresto mayor

From 1 month and 1 day to months.

From 1 to 2 months.

Arresto menor

From 1 to 30 days.

From 1 to 10 days.

From 2 months and 1 day to 4 months. From 11 to 20 days.

From 10 years and 1 day to 12 years.

From 4 months and 1 day to 6 months. From 21 to 30 days.

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: 1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period.

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2. When only a mitigating circumstances 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. Outline of the rules: 1. No aggravating and no mitigating – medium period 2. Only a mitigating – minimum period 3. Only an aggravating – maximum period Illustration: Prision Mayor 1. 2. 3. 4.

One mitigating and no aggravating – Prision Mayor in its medium period One aggravating and no mitigating – Prision Mayor in its maximum period Two mitigating and no aggravating – Prision correctional Three mitigating and 1 aggravating (offsetting applies) – Prision Mayor in its minimum; par. 5 will not apply because it requires “no” aggravating circumstance at all. 5. If there are three aggravating circumstance, can we increase the penalty with one degree? No, refer to par. 6. Art. 64 is not applicable when the penalty is indivisible or prescribed by special law or fine.

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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. Outline of the rules 1. When the penalty is single indivisible, it shall be applied regardless of any mitigating or aggravating circumstances. 2. When the penalty is composed of two indivisible penalties, the following rules shall be observed: a. When there is only one aggravating circumstance, the greater penalty shall be imposed. b. When there is neither mitigating nor aggravating circumstance, the lesser penalty shall be imposed. c. When there is a mitigating circumstance and no aggravating circumstance, the lesser penalty shall be imposed. d. When both mitigating and aggravating circumstances are present, the court shall allow them to offset one another. Art. 63 applies only when the penalty prescribed by the Code is either one indivisible penalty or two indivisible penalties. When the penalty is composed of two indivisible penalties, the penalty cannot be lowered by one degree, no matter how many mitigating circumstance are present. Exception: when a privilege mitigating circumstance under Art. 68 or 69 is present. 70 | P a g e

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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 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 (pena perpetua) shall be computed at thirty years. (As amended). Outline of the provision 1. When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. 2. Otherwise, the order of their respective severity shall be followed. 3. The penalties which can be simultaneously served are: a. Perpetual absolute disqualification b. Perpetual special disqualification c. Temporary absolute disqualification 71 | P a g e

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d. e. f. g. h. i.

Temporary special disqualification Suspension Destierro Public censure Fine and bond to keep the peace Civil interdiction, and confiscation and payment of costs

The above penalties, except destierro, can be served simultaneously with imprisonment. Penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. The three-fold rule According to the three fold-rule, the maximum duration of the convict’s sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him Example: A person is sentenced to suffer – 14 years, 8 moths and 1 day for homicide; 17 years, 4 months and 1 day in another case; 14 years and 8 months in the third case; and in a case of frustrated homicide, he is sentenced to 12 years, or a total of 59 years, 8 months and 2 days. The most severe of the penalties is 17 years, 4 months and 1 day. Three times that penalty is 52 years and 3 days. But since the law has limited the duration of the maximum term of imprisonment to not more than 40 years, the accused will have to suffer 40 years only. The phrase “the most severe of the penalties” includes equal penalties. The three-fold rule applies only when the convict has to serve at least four sentences. If the sum total of all the penalties does not exceed the most severe multiplied by 3, the threefold rule does not apply. Duration of the convict’s sentence refers to several penalties for different offenses, not yet served out. Indemnity is a penalty. The rule will not apply of it will not benefit the convict. 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. 72 | P a g e

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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. Art. 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Article 12 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. 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 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 under 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. 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. 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.

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Art. 75. Increasing or reducing the penalty of fine by one or more degrees. — Whenever 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. 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. Complex penalty – it is a penalty prescribed by law composed of three distinct penalties, each forming a period; the lightest of them shall be the minimum, the next is the medium, and the most severe the maximum period. Illustration: Reclusion temporal to death Maximum – death Medium – reclusion perpetua Minimum – reclusion temporal 

Study Indeterminate Sentence Law, Probation Law (disqualified offenders)

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

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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. 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. Suspension of sentence of minor delinquents. — Whenever a minor of either sex, under sixteen years of age at the date of the commission of a grave or less grave felony, is accused thereof, the court, after hearing the evidence in the proper proceedings, instead of pronouncing judgment of conviction, shall suspend all further proceedings and shall commit such minor to the custody or care of a public or private, benevolent or charitable institution, established under the law of the care, correction or education of orphaned, homeless, defective, and delinquent children, or to the custody or care of any other responsible person in any other place subject to visitation and supervision by the Director of Public Welfare or any of his agents or representatives, if there be any, or otherwise by the superintendent of public schools or his representatives, subject to such conditions as are prescribed hereinbelow until such minor shall have reached his majority age or for such less period as the court may deem proper. The court, in committing said minor as provided above, shall take into consideration the religion of such minor, his parents or next of kin, in order to avoid his commitment to any private institution not under the control and supervision of the religious sect or denomination to which they belong. The Director of Public Welfare or his duly authorized representatives or agents, the superintendent of public schools or his representatives, or the person to whose custody or care the minor has been committed, shall submit to the court every four months and as often as required in special cases, a written report on the good or bad conduct of said minor and the moral and intellectual progress made by him.

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The suspension of the proceedings against a minor may be extended or shortened by the court on the recommendation of the Director of Public Welfare or his authorized representative or agents, or the superintendent of public schools or his representatives, according as to whether the conduct of such minor has been good or not and whether he has complied with the conditions imposed upon him, or not. The provisions of the first paragraph of this article shall not, however, be affected by those contained herein. If the minor has been committed to the custody or care of any of the institutions mentioned in the first paragraph of this article, with the approval of the Director of Public Welfare and subject to such conditions as this official in accordance with law may deem proper to impose, such minor may be allowed to stay elsewhere under the care of a responsible person. If the minor has behaved properly and has complied with the conditions imposed upon him during his confinement, in accordance with the provisions of this article, he shall be returned to the court in order that the same may order his final release. In case the minor fails to behave properly or to comply with the regulations of the institution to which he has been committed or with the conditions imposed upon him when he was committed to the care of a responsible person, or in case he should be found incorrigible or his continued stay in such institution should be inadvisable, he shall be returned to the court in order that the same may render the judgment corresponding to the crime committed by him. The expenses for the maintenance of a minor delinquent confined in the institution to which he has been committed, shall be borne totally or partially by his parents or relatives or those persons liable to support him, if they are able to do so, in the discretion of the court; Provided, That in case his parents or relatives or those persons liable to support him have not been ordered to pay said expenses or are found indigent and cannot pay said expenses, the municipality in which the offense was committed shall pay one-third of said expenses; the province to which the municipality belongs shall pay one-third; and the remaining one-third shall be borne by the National Government: Provided, however, That whenever the Secretary of Finance certifies that a municipality is not able to pay its share in the expenses above mentioned, such share which is not paid by said municipality shall be borne by the National Government. Chartered cities shall pay two-thirds of said expenses; and in case a chartered city cannot pay said expenses, the internal revenue allotments which may be due to said city shall be withheld and applied in settlement of said indebtedness in accordance with section five hundred and eighty-eight of the Administrative Code.

Section Two. — Execution of principal penalties. Art. 81. When and how the death penalty is to be executed. — The death sentence shall be executed with reference to any other and shall consist in putting the person under sentence to 76 | P a g e

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death by electrocution. The death sentence shall be executed under the authority of the Director of Prisons, endeavoring so far as possible to mitigate the sufferings of the person under sentence during electrocution as well as during the proceedings prior to the execution. If the person under sentence so desires, he shall be anaesthetized at the moment of the electrocution. Art. 82. Notification and execution of the sentence and assistance to the culprit. — The court shall designate a working day for the execution but not the hour thereof; and such designation shall not be communicated to the offender before sunrise of said day, and the execution shall not take place until after the expiration of at least eight hours following the notification, but before sunset. During the interval between the notification and the execution, the culprit shall, in so far as possible, be furnished such assistance as he may request in order to be attended in his last moments by priests or ministers of the religion he professes and to consult lawyers, as well as in order to make a will and confer with members of his family or persons in charge of the management of his business, of the administration of his property, or of the care of his descendants. Art. 83. Suspension of the execution of the death sentence. — The death sentence shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40. Art. 84. Place of execution and persons who may witness the same. — The execution shall take place in the penitentiary of Bilibid in a space closed to the public view and shall be witnessed only by the priests assisting the offender and by his lawyers, and by his relatives, not exceeding six, if he so request, by the physician and the necessary personnel of the penal establishment, and by such persons as the Director of Prisons may authorize. Art. 85. Provisions relative to the corpse of the person executed and its burial. — Unless claimed by his family, the corpse of the culprit shall, upon the completion of the legal proceedings subsequent to the execution, be turned over to the institute of learning or scientific research first applying for it, for the purpose of study and investigation, provided that such institute shall take charge of the decent burial of the remains. Otherwise, the Director of Prisons shall order the burial of the body of the culprit at government expense, granting permission to be present thereat to the members of the family of the culprit and the friends of the latter. In no case shall the burial of the body of a person sentenced to death be held with pomp. 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

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establishments provided by the Administrative Code in force or which may be provided by law in the future. 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. 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; 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. 78 | P a g e

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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 and third 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. 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. 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. Partial Extinction of criminal liability. — Criminal liability is extinguished partially: 1. By conditional pardon; 2. By commutation of the sentence; and 79 | P a g e

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3. For good conduct allowances which the culprit may earn while he is serving his sentence. 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. Allowance for good conduct. — The good conduct of any prisoner in any penal institution shall entitle him to the following deductions from the period of his sentence: 1. During the first two years of his imprisonment, he shall be allowed a deduction of five days for each month of good behavior; 2. During the third to the fifth year, inclusive, of his imprisonment, he shall be allowed a deduction of eight days for each month of good behavior; 3. During the following years until the tenth year, inclusive, of his imprisonment, he shall be allowed a deduction of ten days for each month of good behavior; and 4. During the eleventh and successive years of his imprisonment, he shall be allowed a deduction of fifteen days for each month of good behavior. 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 the service of his sentence under the circumstances mentioned in Article 58 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 to in said article. Art. 99. Who grants time allowances. — Whenever lawfully justified, the Director of Prisons 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. 80 | P a g e

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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 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 81 | P a g e

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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. — 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 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. 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 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.

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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. 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.

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