Crim Law Reviewer

CRIMINAL LAW REVIEW
Reyes, Jenny C. (2014)

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ARTICLE 11
JUSTIFYING CIRCUMSTANCES

KEYPOINTS
1. A justifying circumstance is generally a circumstance which, if present in the commission of a felony, relieves the accused of his criminal and civil liabilities.
2. In Paragraph 4, there is civil liability to be shouldered by the person or persons who benefitted in proportion to the benefit received (Article 101 of the RPC).
3. 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.

# JUSTIFYING CIRCUMSTANCE REQUISITES BASIS DEFINITIONS NOTES
1 Anyone who acts in defense of his
person or rights, provided that the
following concur:
1. Unlawful aggression;
2. Reasonable necessity of
the means employed to
prevent or repel it; and,
3. Lack of sufficient
provocation on the part
of the person defending
himself.
2. Reasonable necessity
of the means
employed to prevent
or repel it; and,
3. Lack of sufficient
provocation on the
part of the person
defending himself.
It would be quite impossible for
the State in all cases to prevent
aggression upon its citizens and
offer prosecution to the persons
unjustly attacked.
Unlawful Aggression
- It is a sudden, unprovoked
and unlawful attack which
places a persons life and limb
in danger, which is actual,
real or imminent.
Actual
- The danger must be present,
that is actually in existence.
Imminent
- That the danger is on the
point of happening. It is not
required that the attack
already begins, for it may be
too late.
Stand Ground When in the Right
- Where the accused is where
he has the right to be, the
law does not require him to
retreat when his assailant is
rapidly advancing upon him
with a deadly weapon.
Provocation
- Any unjust or improper
conduct or act of the
offended party, capable of
exciting, inciting or irritating
anyone. There is sufficient
provocation when it is
adequate to excite a person
to commit the wrong, which
must accordingly be
proportionate in gravity.
The person defending himself must
have been attacked with actual
physical force or with actual use of
weapon.

The attack made by the deceased
and the killing of the deceased by
defendant should succeed each
other without appreciable interval
of time.

There is no more right to kill the
victim when aggression has ceased
(i.e. aggressor flees or accused was
able to disarm the victim.

Threat to inflict real injury is
unlawful aggression when preceded
by an outward and material
aggression.

It is sufficient that there is rational
equivalence between the means of
offense and the defense.

2 Anyone who acts in defense of the
person or rights of his:
Based on humanitarian
sentiment and impulse of blood
Spouse
- The lawful or legitimate
In defense of a relative, unlawful
aggression can be made to depend
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1. Spouse
2. Ascendants
3. Descendants
4. Legitimate, natural or
adopted, brothers or
sisters
5. Relatives by affinity in
the same degree
6. Relatives by
consanguinity within the
fourth civil degree
And the further requisite, in case the
provocation was given by the
person attacked, the one making
the defense had no part therein.
of the means
employed to prevent
or repel the
aggression; and,
3. In case the
provocation was given
by the person
attacked, the person
defending has no part
therein.
which impels men to rush, on
the occasion of great perils, to
the rescue of those close to
them by ties of blood.
spouse.
Ascendants
- Relatives by blood in the
direct ascending line (i.e.
parents, grandparents, great-
parents, and so on).
Descendants
- Relatives by blood in the
direct descending line (i.e.
children, grandchildren, great
grandchildren, and so on).
Legitimate, natural or adopted brother
or sister
- Refers to the relationship that
one has with the accused
when they share the same
father or mother, and such
parents are joined by a lawful
marriage.
Relatives by affinity within the same
degree
- Those related by reason of
marriage (i.e. accuseds
ascendants-in-law,
descendants-in-law, brothers-
in-law and sisters-in-law)
Relatives by consanguinity
- This refers to blood relatives.
upon the honest belief of the one
making the defense.

The fact the relative defended gave
provocation is immaterial.
3 Anyone who acts in defense of the
person or rights of a stranger,
provided that the following requisites
concur:
2. Reasonable necessity of
the means employed to
prevent or repel it; and,
3. The person defending be
not induced by revenge,
resentment or other evil
motive.
of the means
employed to prevent
or repel it; and,
3. The person defending
must not be induced
by revenge,
resentment or other
evil motive.
The ordinary man would not
stand idly by and see his
companion killed without
attempting to save his life.
Stranger
- Any person not included in
the enumeration of relatives
mentioned in Paragraph 2
(defense of a relative) of this
article, is considered a
stranger for the purpose of
Paragraph 3.
If the third requisite is lacking (i.e.
the person making the defense is
induced by revenge or resentment
or evil motive), this type of defense
will not apply.

What is important is motive of the
person at the time making the
defense.
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:
1. The evil sought to be
avoided actually exists;
2. That the injury feared
be greater than that
done to avoid it; and,
Damage to another
- This term covers injury to
persons and damage to
property.
The evil must actually exist.

The instinct of self-preservation will
always make one feel that his own
safety is of greater importance than
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1. The evil sought to be
avoided actually exists;
2. That the injury feared be
greater than that done
to avoid it; and,
3. That there be no other
practical and less
harmful means of
preventing it.
3. That there be no other
practical and less
harmful means of
preventing it.
that of another.

The greater evil should not be
brought about by the negligence or
imprudence of the actor.

The evil which brought about the
greater evil must not result from a
violation of law by the actor.

THERE IS CIVIL LIABILITY as
provided in ARTICLE 101 of the
Revised Penal Code: Civil liability
shall be borne by persons benefited
in proportion to the benefit which
they may have received.

The courts shall determine, in their
sound, discretion, the proportionate
amount, for which each one shall
be liable.
5 Any person who acts in the (1)
fulfillment of a duty or (2) in the
lawful exercise of a right or office.
1. The accused must
have acted in the
performance of a duty
or in the lawful
exercise of a right or
office;
2. The injury caused or
the offense committed
should have been the
necessary
consequence of such
lawful exercise; and,
3. The fulfillment of a
duty or the lawful
exercise of such right
or office must be done
within the limits of the
law.
4. There should be no
imprudence, neglect or
abuse in the fulfillment
of duty or exercise of
such right or office.
The public officer acting in the
fulfillment of a duty may appear to
be an aggressor but his aggression
is not unlawful, it being necessary
to fulfill his duty.

It is not necessary that there be
unlawful aggression against the
person charged with the protection
of the property. If there is unlawful
aggression against the person
charged with the protection of
property, then Paragraph 1 of
Article 11 applies, it being a
defense of a right to property.
6 Any person who acts in obedience 1. That an order has Both the person who gives the
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to an order issued by a superior
for some lawful purpose.
been issued by a
superior;
2. That such order must
be for some lawful
purpose; and,
3. That the means used
by the subordinate to
carry out said order is
lawful.
order and the person who executes
it, must be acting within the
limitations prescribed by law.

When the order is not for a lawful
purpose, the subordinate who
obeyed it is criminally liable.

The subordinate is not liable for
carrying out an illegal order of
his superior; of he is not aware
of the illegality of the order
and he is not negligent.

ARTICLE 12
EXEMPTING CIRCUMSTANCES

KEYPOINTS
1. Exempting circumstances are those grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which makes the act voluntary or
negligent.
2. 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.
3. In exempting circumstances, there is a crime committed but no criminal liability.

# EXEMPTING
CIRCUMSTANCE
REQUISITES BASIS DEFINITIONS NOTES CIVIL LIABILITY
(As provided under
Article 101 of the
Revised Penal Code)
1 An imbecile or an
insane person, unless
the latter (insane
person) has acted
during a lucid interval.
When the imbecile or an
insane person has
committed an acted which
the law defines as a
felony (delito), the Court
shall order his
confinement in one of the
hospitals or asylums
established for persons
thus afflicted, which he
Complete absence of
intelligence, an element
of voluntariness.
Imbecile (exempt in all cases)
- A person who, while
advanced in age, has a
mental development
comparable to that of
children between two
and seven years of
age.
- A person completely
deprived of reason and
discernment and
freedom of the will at
the time committing
the crime.
Insanity
An imbecile must be deprived
completely of reason or
discernment and freedom of
will as the time of committing
the crime.

To constitute insanity, there
must be complete deprivation
of intelligence or that there be
a total deprivation of freedom
of the will.

The insanity should exist at the
time the crime is committed or
to the very moment of its
This shall be borne by
those who have the legal
authority or control upon
the accused, 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, the accuseds
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shall not be permitted to
leave without first
obtaining the permission
of the same court.
- A manifestation in
language or conduct,
of disease or defect of
the brain, or a more or
less permanently
diseased or disordered
condition of the
mentality, functional or
organic, and
characterized by
perversion, inhibition,
or disordered function
of the sensory or of
the intellective
faculties, or by
impaired or disordered
volition.
- An insane is only
exempt if he did not
act during his lucid
interval.
execution.

Examples:
1. Epilepsy per se is not
exempting.
2. Somnambulism
(sleepwalking) where
the acts of a person
are automatic.
3. Committing a crime
while in a dream.
4. Temporary insanity
caused by malignant
malaria.
5. Schizophrenia may be
exempting provided
that it completely
deprives the accused
of freedom of will,
reason and
discernment.
6. Dementia praecox
own property shall be
held liable.
2 A child fifteen years
old and below at the
time of the commission
of the offense. However,
the child shall be
subjected to an
intervention program
pursuant to Section 20 of
R.A. 9344 (as impliedly
repealed by R.A. 9344).
Complete absence of
intelligence.
their part.

having such insane,
held liable.
3 A child over fifteen
years of age but below
eighteen years of age
at the time of the
commission of the
offense who shall be
Complete absence of
intelligence.
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subjected to an
intervention program
pursuant to Section 20 of
the Act unless he has
acted with
discernment in which
case such child shall be
subjected to appropriate
diversion proceedings
under Sections 23 to 31 of
R.A. 9344.
their part.

having such insane,
held liable.
4 Any person who, while
performing a lawful act
with due care, causes
an injury by mere
accident, without fault
or intention of causing
it.
1. A person is
performing a lawful
act;
2. With due care;
3. He causes an injury
to another by mere
accident;
4. Without fault or
intention of causing
it.
There is lack of
negligence and intent.
Under this
circumstance, a person
does not commit either
an intentional felony or
a culpable felony.
Accident
- Something that
happens outside the
sway of our will and
although it comes
about through some
act of our will, lies
beyond the bounds of
humanly foreseeable
consequences.
Accident presupposes lack of
intention to commit the wrong
done.
No civil liability.
5 Any person who acts
under the compulsion
of an irresistible force.
1. That the compulsion
is by means of
physical force;
2. That the physical
force must be
irresistible; and,
3. The physical force
must come from a
third person.
Complete absence of
freedom. A person who
acts under the
compulsion of an
irresistible force, like on
who acts under the
impulse of
uncontrollable fear of
equal or greater injury,
is exempt from criminal
liability because he does
not act with freedom.
Actus me invito factus non est
meus actus (An act done by
me against my will is not my
act).

The force contemplated must
be so formidable as to reduce
the actor to a mere instrument
who acts not only without will
but against his will.

The accused must have no
opportunity for escape or self-
defense in equal combat.

A person who invokes the
exempting circumstance of
compulsion due to irresistible
force must prove his defense
by clear and convincing
evidence.

The offender uses violence or
physical force to compel
The person using violence
or causing the fear, 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.
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another person to commit the
crime.
6 Any person who acts
under the impulse of
an uncontrollable fear
of an equal or greater
injury.
1. The existence of an
uncontrollable fear;
2. That the fear must be
real and imminent;
and
3. The fear of injury is
greater than, or at
least equal to, that
committed.
Additional element
(Reyes, p. 236, 2008 edition)
4. It promises an evil of
such gravity and
imminence that an
ordinary man would
have succumbed to it.
Complete absence of
freedom.
For such defense to prosper,
the duress, force, fear, or
intimidation must be present,
imminent and impending, and
of such nature as to induce a
well-grounded apprehension of
death or serious bodily harm if
the act be done.

The accused must not have
opportunity for escape or self-
defense.

A person who invokes the
exempting circumstance of
acting under an impulse of an
uncontrollable fear must prove
his defense by clear and
convincing evidence.

The offender employs
intimidation or threat in
compelling another to commit
a crime.

7 Any person who fails to
perform an act
required by law, when
prevented by some
lawful or insuperable
cause.
1. That an act is
required by law to be
done;
2. That a person fails to
perform such act;
and,
3. That his failure to
perform such act was
due to some lawful or
insuperable cause.
The accused acts
without intent the third
condition of
voluntariness in
intentional felony.
This exempting circumstance
implies knowledge of the
precept of the law to be
complied with on the part of a
person who is prevented by
some lawful or insuperable
cause, that is, by some motive
which has lawfully, morally, or
physically prevented one to do
what the law commands.
The person using violence
or causing the fear, 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.

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ARTICLE 13
MITIGATING CIRCUMSTANCES

KEYPOINTS
1. 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.
2. Basis: The circumstances are based on the diminution of either freedom of action, intelligence, or on the lesser perversity of the offender.

# MITIGATING CIRCUMSTANCE REQUISITES BASIS NATURE DEFINITIONS NOTES
1 Those mentioned in the
preceding chapter (Justifying
and Exempting circumstances),
when all the requisites necessary
to justify the act or exempt from
criminal liability in the respective
cases are not attendant.
Circumstances which are
covered:
1. Article 11 Paragraphs 1,
2, 3, 4, 5, and 6 (self-
defense, defense of
relatives, defense of
strangers, performance
of duty, and, obedience
to order of superior).
2. Article 12 Paragraphs 3,
4 and 6
Privilege Mitigating
Circumstance
This circumstance is applicable only
when lawful aggression is present
but the other two requisites are not
present in any of the case referred
to in circumstances numbers 1, 2
and 3 of Article 11.

Unlawful aggression is an
indispensable requirement.

Article 12, Paragraph 4
If the second requisite and the first
part of the fourth requisite are
absent, the case will fall under
Article 365 which punishes a felony
by negligence or imprudence
(without due care and with fault).
Article 12, Paragraph 6
If only one of the requisites is
present, there is only a mitigating
circumstance.
2 A child above fifteen but below
eighteen years of age at the
time of the commission of the
offense who acted with
discernment, in which case he
shall be subjected to appropriate
diversion programs under Sections
23 to 31 of R.A. 9344 and those
persons who are over seventy
years of age.
There is a diminution
of intelligence, a
condition of
voluntariness.
Privilege Mitigating
Circumstance

3 That the offender has no
intention to commit so grave
a wrong as that committed.
There is diminution of
criminal intent and
lesser criminal
perversity.
Ordinary Mitigating
Circumstance
This circumstance can be taken into
account only when the facts proven
show that there is a notable and
evident disproportion between the
means employed to execute the
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criminal act and its consequences.

It is the intention of the offender at
the moment when he is committing
the crime which is considered.

Lack of intent to commit so grave a
wrong as that committed cannot be
appreciated in a crime committed
through negligence or carelessness,
in abberatio ictus, and, in mistake
of identity or error in personae.

Not applicable to felonies where the
intention of the offender is
immaterial.

Applicable only to offenses resulting
in physical injuries or material harm.
4 That sufficient provocation or
threat on the part of the
offended party immediately
preceded the act.
1. Provocation must be
sufficient;
2. Provocation must
originate from the
offended party; and,
3. That the provocation
must be immediate to
the act (i.e. to the
commission of the crime
by the person who is
provoked)
free will.

intelligence and intent.
Ordinary Mitigating
Circumstance
Provocation
- Any unjust or improper
conduct or act of the
offended party, capable of
exciting, inciting or irritating
anyone.
Sufficient
- Adequate to excite a person
to commit the wrong and
must accordingly be
proportionate to its gravity.
That the provocation must
immediately precede the act means
that there should not be any
interval of time between the
provocation by the offended party
and the commission of the crime by
the person provoked.

Provocation must originate from the
offended party.

When an aggression is in retaliation
for an insult, injury, or threat, it
cannot be considered as a defense
but as a punishment inflicted on the
author of the provocation, and in
such a case the most that courts
could do would be to consider the
same as an extenuating
circumstance, but never as a cause
of complete exemption from
liability.

In self-defense (Article 11), there
should be no provocation on the
part of the offended party.
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5 That the act was committed in the
immediate vindication of a
grave offense to the one
committing the felony (delito), his
spouse, ascendants, descendants,
legitimate, natural or adopted
brothers or sisters, or relatives by
affinity within the same degree.
1. That there be a grave
offense done to the one
committing the felony,
his spouse, ascendants,
descendants, legitimate,
natural or adopted
brothers and sisters,
and relatives by affinity
within the same degree;
and,
2. That the felony is
committed in vindication
of such grave offense.
N.B.: A lapse of time is allowed
between the vindication and the
doing of the great offense.
Diminution of free-will
and self-control.

Diminution of the
conditions of
voluntariness.
This is an ordinary
mitigating circumstance.
The provocation should be
proportionate to the damage caused
by the act and adequate to stir one
to its commission.

Vindication of a grave offense is
incompatible with passion or
obfuscation.

Immediate vindication refers to a
proximate time frame. There is no
immediate vindication of a grave
offense when lapse of time is too
distant.

The grave offense being vindicated
should be committed by the
deceased himself and not by other
persons.

The effect and the influence of the
grave offense should last until the
crime is committed.
6 That of having acted upon an
impulse so powerful as
naturally to have produced
passion or obfuscation.
As provided in the book of
Reyes, p. 285 (2008 ed.)
1. The accused acted upon
an impulse; and,
2. The impulse must be so
powerful that it
naturally produced
passion or obfuscation
in him.
Amurao, p. 397
1. An unlawful act
sufficient to produce
passion and obfuscation
was committed by the
intended victim;
2. The crime was
committed within a
reasonable length of
time from the
commission of the
unlawful act that
Diminution of free-will
and self-control.

Diminution of his
This is an ordinary
Passional obfuscation
- There is passional
obfuscation when the crime
was committed due to an
uncontrollable burst of
passion provoked by prior
unjust or improper acts or
due to a legitimate stimulus
so powerful as to overcome
reason.
The crime committed by the
accused must be provoked by prior
unjust or improper acts of the
injured party.

The act producing passion or
obfuscation must not be far
removed from the commission of
the crime during which the accused
may recover his normal equanimity.

The crime committed must be the
result of a sudden impulse of
natural and uncontrollable fury.

The offender must act under the
impulse of special motives.

The cause producing passion or
obfuscation must come from the
offended party.

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produced the
obfuscation in the
accuseds mind; and,
3. The passion and
obfuscation arose from
lawful sentiments and
not from a spirit of
lawlessness or revenge.
Passion or obfuscation may lawfully
arise from causes existing only in
the honest belief of the offender.

Vindication of a grave offense and
passion or obfuscation may be
appreciated separately in favor of
the accused in the same case when
they arise from different set of
facts.

Passion or obfuscation compatible
with lack of intention to commit so
grave a wrong.
7 That the (1) offender
voluntarily surrendered
himself to a person in
authority or his agents, or
that (2) he had voluntarily
confessed his guilt before the
court prior to the presentation
of the evidence for the
prosecution.
Requisites for voluntary
surrender:
1. That the offender has
not been actually
arrested;
2. That the offender
surrendered himself to
a person in authority or
to the latters agent;
and,
3. That the surrender was
voluntary, unconditional
and spontaneous.

Requisites for plea of guilt:
spontaneously
confessed his guilt;
2. That the confession of
guilt was made in open
court, that is, before the
competent court that is
to try the case; and,
3. That the confession of
guilt was made prior to
the presentation of
evidence for the
prosecution.
Lesser criminal
perversity on the part
of the accused
because they are
based on separate
facts.
Both are ordinary
mitigating
circumstances.
Article 152 of RPC defines who are
persons in authority and agents of
persons in authority:
Person in authority
- Any person directly vested
with jurisdiction, whether as
an individual or as a
member of some court or
government corporation,
board or commission.
Agent of a person in authority
- A person who by direct
provision of law or by
election or by appointment
by competent authority, is
charged with the
maintenance of public order
and the protection and
security of life and property.
- Any person who comes to
the aid of persons in
authority.

When is surrender voluntary?
A surrender to be voluntary must be
spontaneous, showing the intent of
the accused to submit himself
unconditionally to the
authorities, either because he
acknowledges his guilt or
because he wishes to save them
Voluntary Surrender
The surrender must be done before
the accused could in fact be
arrested.

Surrendered through an
intermediary may be appreciated as
mitigating.

The surrender must be by reason of
the commission of the crime for
which defendant is prosecuted.

Voluntary Plea of Guilt
When an accused pleads guilty to
the charge against him, it is
understood that he does so fully
cognizant that he has carefully read
beforehand the charge against him;
and when he pleads guilty thereto,
he signifies his admission of all the
material facts alleged therein,
including the allegation of the
aggravating circumstance of evident
premeditation.

Plea of guilty should be dome at the
first opportunity before the court
having jurisdiction to try the cases.

Conditional plea of guilty is not
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the trouble and expenses
necessarily incurred in his
search and capture.

Spontaneous
- Emphasizes the idea of an
inner impulse, acting
without external stimulus
mitigating.

Voluntary confession of guilt to a
lower charge after amendment of
the information is mitigating as long
as the lesser offense is necessarily
included in the offense charged in
the complaint or information.

N.B.: This is not mitigating in
culpable felonies and in crimes
punishable by special laws.
8 That the offender is deaf and
dumb, blind or otherwise
suffering some physical
defect which thus restricts his
means of action, defense, or
communication with his fellow
beings.
Diminution of freedom
of action.

This paragraph
considers the fact that
one suffering from
physical defect, which
restricts ones means
of action, defense or
communication with
ones fellow beings,
does not have
complete freedom of
action and, therefore,
there is diminution of
that element of
voluntariness.
This is an ordinary
It is not necessary that both ears of
the accused be deaf or both eyes of
the accused be blind. It is enough
that his partial blindness or partial
deafness restricts his means of
action, defense or communication
with his fellow beings.

To be mitigating, the physical defect
must restrict the accuseds means
of action, defense or communication
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
consciousness of his acts.
1. That the illness of the
offender must diminish
the exercise of his will-
power; and,
2. That such illness should
not deprive the offender
of consciousness of his
acts,
Diminution of
This is an ordinary
To be mitigating, the illness should
diminish the exercise of will-power.

This circumstance includes the
illness of the mind.
10 Any circumstances of a similar
nature and analogous to those
above-mentioned.
Must be of similar nature and
analogous to those mentioned in
paragraphs 1 to 9 of Article 13.

CRIMINAL LAW REVIEW
13

ARTICLE 14
AGGRAVATING CIRCUMSTANCES

KEYPOINTS
1. Aggravating circumstances are those which, if present 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, if not offset by any ordinary mitigating circumstance.
2. Basis: The circumstances are based on the greater criminal perversity of the offender as shown by means employed, the time, place and occasion of the commission of the felony, the material
execution of the act, or in the means employed (Article 62, Paragraph 4), or the moral attributes, private relations or other personal cause (Paragraph 3).
3. This should be proved by clear and conclusive evidence.

# AGGRAVATING
CIRCUMSTANCE
REQUISITES BASIS NATURE ABSORBED BY DEFINITIONS NOTES
1 That advantage be taken
by the offender of his
public position.
1. The offender is a
public official; and,
2. That he used the
influence, prestige
or ascendancy
which such office
gives him as a
means by which he
realized his
purpose.
The greater perversity
of the offender as
shown by the personal
circumstance of the
offender and also by
the means used to
secure the
commission of the
crime.
Inherent in the following
crimes:
1. Malversation
under Article
217
2. Falsification of
public
documents
committed by
public officers
under Article
171
3. In the case of
accessories
under Article 19,
Paragraph 3
4. In crimes
committed by
public officers
(Articles 204 to
245)
Advantage be taken by
offender of his public
position
- The public officer
must use the
influence, prestige,
or ascendancy
which his office
gives him as the
means by which he
realizes his
purpose.
Applicable only when the
offender is a public officer.

Failure in official duties is
tantamount to abusing of
office.
2 That the crime be
committed in contempt of
or with insult to the public
authorities.
1. That the public
authority is
engaged in the
exercise of his
functions;
2. That he who is thus
engaged in the
exercise of said
functions is not the
person against
whom the crime is
This is based on the
greater perversity on
the criminal perversity
of the offender as
shown by his lack of
respect to the public
authorities.
This is merely a generic
aggravating
circumstance.
Public authority
- Sometimes also
called a person in
authority is a
public officer who
is directly vested
with jurisdiction,
that is a public
officer who has the
power to govern
and execute laws.
Not applicable when crime is
committed in the presence
of an agent only.

The crime should not be
committed against the public
authority.

Knowledge that a public
authority is present is
essential.
CRIMINAL LAW REVIEW
14

committed;
knows him to be a
public authority;
and,
4. His presence has
not prevented the
offender from
committing the
criminal act.
3 That the act be committed
with insult or in disregard
of the respect due to the
offended party on account
of his(1) rank, (2) age
or (3) sex or that it be
committed in the (4)
dwelling of the
offended party, if the
latter has not given
provocation.

In order that dwelling may
be considered aggravating
the following must be
present:
1. The crime must be
committed in the
dwelling of the
offended party;
2. The offended party
has not given
provocation; and,
3. There must be
specific evidence to
show that the
offender
intentionally and
deliberately
disregarded the
respect the law
accords to anothers
dwelling.
For disregard of sex,
age and rank
These aggravating
circumstances are
based on the greater
perversity of the
offender as shown by
the personal
circumstances of the
offended party and
the place of the
commission of the
crime.

For dwelling
greater perversity of
the offender as shown
by the place of the
commission of the
offense.
These aggravating
circumstances of rank,
age and sex are specific
in nature in the sense
that they apply only to
crimes against persons
and honor.

Inherent in the following
crimes:
1. Robbery with
force upon
things
2. Violation of
domicile
3. Trespass to
dwelling
4. Robbery in an
inhabited place
Treachery absorbs
disregard of sex.
Rank
- High social position
or standing as a
grade in the armed
forces; or to a
graded official
standing or social
position or station;
or to the order or
place in which said
officers are placed
in the army and
navy in relation to
others; or to the
designation or title
of distinction
conferred upon an
officer in order to
fix his relative
position in
reference to other
officers in matters
of privileges,
precedence, and
sometimes of
command or by
which to determine
his pay and
emoluments as in
the case of army
staff officers; or to
a grade or social
standing, relative
position in civil or
social life or in any
With insult or disregard
- There must be
proof which would
clearly demonstrate
that the accused
deliberately
intended to act
with insult, or in
disregard of the
respect due the
victim on account
of his rank, age, or
sex.

Disregard of respect due to
age applies when the
deceased is of old age or
tender age.

Disregard of respect due to
sex is applicable to female
sex only.

Not applicable in the
following cases:
1. When the offender
acted with passion
and obfuscation;
2. When there exists a
relationship
between the
offended party and
the offender; and,
3. When the condition
of being a woman
CRIMINAL LAW REVIEW
15

scale of
comparison, status,
grade, including its
grade, status or
scale of
comparison within
a position.

Dwelling
- A building or
structure
exclusively used for
rest and comfort
- Includes
dependencies, the
foot of the
staircase, and
enclosure under
the house.
is indispensable in
the commission of
the crime (i.e.
parricide, rape,
abduction,
seduction).
Amurao, p. 470
4. When a crime was
committed through
negligence or
carelessness;
5. When sufficient
provocation on the
part of the
offended party
immediately
preceded the act;
6. In aberration ictus
(mistake in the
blow);
7. In error in
personae (mistake
in identity);
8. The crime was
committed at the
spur of the
moment; and,
9. When the crime
was committed
upon an accidental
meeting or
encounter between
the offender and
the offended party.

Offended party must not
give provocation.
Provocation must be:
1. Not given by the
owner of the
dwelling;
2. Not sufficient; and,
3. Not immediate to
the commission of
CRIMINAL LAW REVIEW
16

the crime.

There must be close relation
between provocation and
commission of crime in the
dwelling.

The dwelling need not be
owned by the victim.

Dwelling cannot be
considered when the
accused and the victim live
in the same house.
with (1) abuse of
confidence or (2)
obvious ungratefulness.
Abuse of confidence
1. The offended party
trusted the
offender;
2. The offender
abused such trust
by committing the
crime against the
offended party;
and,
3. The abuse of
confidence
facilitated the
commission of the
crime.
For abuse of
confidence
Greater criminal
perversity of the
accused who takes
advantage of the trust
and confidence
reposed upon him by
the offended party in
order to facilitate the
commission of the
crime

For obvious
ungratefulness
greater criminal
perversity of the
offender, who instead
of being ungrateful to
the offended partys
kindness, favor and
assistance, commits a
crime against him.
For abuse of confidence
This is a generic
aggravating
circumstance. However, it
becomes qualifying
aggravating circumstance
in:
1. Qualified theft
2. Qualified
seduction

For obvious
ungratefulness
This is a generic
Relationship of trust
between the accused and
the offended party is
indispensable.

The confidence between the
offender and the offended
party must be immediate
and personal.

Ungratefulness must be
obvious i.e. manifest and
clear
5 That the crime be
committed in the palace of
Chief Executive, or in his
presence, or where public
authorities are engaged in
the discharge of their
duties or in a place
They are based on the
the offender as shown
by the place of the
commission of the
crime, which must be
respected.
All are generic
aggravating
circumstance. However,
place dedicated to
religious worship is
inherent in the crime of
offending the religious
It is enough that the
accused committed the
crime in a place used by the
public authorities in the
discharge of their duties.

Offender must have
CRIMINAL LAW REVIEW
17

dedicated to religious
worship.
feelings. intention to commit a crime
when he entered the place.

The Chief Executive does
not have to be in the Palace
it is already sufficient that
the crime was committed in
the Palace of the Chief
Executive.

Offender must have
intention to commit a crime
when he entered the place.
6 That the crime be
committed in the (1)
nighttime, or in an (2)
uninhabited place, or by
(3) band whenever such
circumstances may
facilitate the commission
of the offense.
1. When it facilitated
the commission of
the crime;
2. When specially
sought for by the
offender to insure
the commission of
the crime or for the
purpose of
impunity; and,
3. When the offender
took advantage
thereof for the
purpose of
impunity.
greater criminal
perversity of the
offender, as shown by
the time, place and
manner of committing
the crime.
All are generic
aggravating.

Band is inherit in
brigandage.
Treachery absorbs
nocturnity.
Nighttime
- Period of darkness
beginning at the
end of dusk and
ending at dawn.
- The law defines
nights as being
from sunset to
sunrise.

Uninhabited place
- It is a place where
there are no
houses at all, a
place at a
considerable
distance from
town, or where the
houses are
scattered at a
great distance from
each other.
- The possibility of
the victim receiving
some help.

Band
- Whenever more
than three armed
malefactors shall
have acted
together in the
Nighttime, uninhabited place
and band may be considered
separately against the
accused.

Nighttime may facilitate the
commission of the crime,
when because of the
darkness of the night the
crime can be perpetrated
unmolested, or interference
can be avoided, or there
would be greater certainty in
attaining the ends of the
offender.

Nighttime need not be
specially sought for when it
facilitated the commission of
the offense or the offender
took advantage of the same
to commit the crime.

Two tests
1. The Objective Test:
Darkness facilitated
the commission of
the offense
2. The Subjective
Test: Nighttime
was purposely
sought by the
CRIMINAL LAW REVIEW
18

commission of an
offense, it shall be
deemed to have
been committed by
a band.
offender.

Nighttime is not aggravating
when there was merely a
chance or accidental
encounter between the
accused and the victim.
More than three malefactors
should be armed.

Band absorbs abuse of
superior strength.
7 That the crime be
committed on the occasion
of a conflagration,
shipwreck, earthquake,
epidemic or other calamity
or misfortune.
This shows the
debased form of
criminality on the part
of the offender who,
in the midst of great
calamity, instead of
lending aid to the
afflicted, adds to their
suffering by taking
advantage of their
misfortune.
This is qualifying
aggravating
circumstance.
The offender should
deliberately take advantage
of the occasions mentioned
in this paragraph in order to
facilitate the commission of
the crime.
8 That the crime be
committed with aid of
armed men or persons
who insure or afford
impunity.
1. That armed men or
person took part in
the commission of
the crime, directly
or indirectly; and,
2. That the accused
availed himself of
their aid or relied
upon them when
the crime was
committed.
It is based on the
means and ways of
committing the crime.
This is a qualifying
aggravating
circumstance.
Aid of armed men is
absorbed by
employment of a
band.
Armed men
- Presupposes at
least two (2)
persons
The casual presence of
armed men near the place
where the crime was
committed does not
constitute an aggravating
circumstance when it
appears that the accused did
not avail himself of their aid
or rely upon them to commit
the crime.

The armed men must take
part directly or indirectly.
9 That the accused is a
recidivist.
1. That the offender is
on trial for an
offense;
2. That he was
previously convicted
by final judgment;
3. That both the first
and the second
offenses are
the offender, as
shown by his
inclination to crimes.
This is a generic
aggravating
circumstance.
Recidivist
- A recidivist is one
who, at the of his
trial for one crime,
shall have been
previously
convicted by final
judgment of
another crime
A judgment becomes final
when:
1. After the lapse of
the period for
perfecting an
appeal;
2. The sentence has
been partially or
totally satisfied or
CRIMINAL LAW REVIEW
19

embraced in the
same title of the
Code;
4. That the offender is
convicted of the
new offense.
embraced in the
same title of the
Revised Penal
Code.
served;
3. The accused has
waived in writing
his right to appeal;
and,
4. The accused has
applied for
probation.

The present crime and the
previous crime must be
embraced in the same title
of this Code.

Pardon does not obliterate
the fact that the accused
was a recidivist; but
amnesty extinguishes the
penalty and its effects.
10 That the offender has
been previously punished
for an offense to which the
law attaches an equal or
greater penalty or for two
or more crimes to which it
attaches a lighter penalty.
1. That the accused is
on trial for an
offense;
2. That he previously
served sentence for
another offense to
which the law
attaches an equal
or greater penalty,
or for two or more
crimes to which the
law attaches lighter
penalty than that
for the new
offense; and,
3. That he is convicted
of the new offense.
The basis is the same
as that of recidivism,
i.e. the greater
perversity of the
offender as shown by
his inclination to
crimes.
The second requisite is
present in the following
instances:
1. When the penalty
provided by law for
the previous
offense is equal to
that for the new
offense;
2. When the penalty
provided by law for
the previous
offense is greater;
or,
3. When the accused
served at least two
sentences, even if
the penalties
provided by law for
the crimes are
lighter.

It is the penalty attached to
the offense, not the penalty
actually imposed.
11 That the crime be This is based on the This is a qualifying This paragraph applies to
CRIMINAL LAW REVIEW
20

committed in consideration
of a price, reward or
promise.
the offender, as
shown by the
motivating power
itself.
aggravating
circumstance.
both the inducer and the
induced.

Price, reward or promise
must be for the purpose of
inducing another to perform
the deed.

Price, reward or promise
must be the sole motivating
factor in the commission of
the crime, without which the
crime would not have been
committed.

Price need not be in money
only.
12 That the crime be
committed by means of
inundation, fire, poison,
explosion, stranding of a
vessel or intentional
damage thereto,
derailment of locomotive,
or by the use of any other
artifice involving great
waste or ruin.
The basis has
reference to means
and ways employed.
aggravating
circumstance.
When used as means to kill
another, the crime is
murder.
with evident
premeditation.
1. The time when the
offender determines
to commit the
crime;
2. An act manifestly
indicating that the
offender clung to
his determination;
and,
3. A sufficient interval
of time between the
determination and
the execution of the
crime to allow him
to reflect upon the
consequences of his
act and allow his
conscience to
Greater criminal
of the accused as
shown by his
tenacious persistence
to commit the crime.
aggravating
circumstance.
This circumstance can
exist independently of
the aggravating
circumstance of price,
reward and promise.

Evident premeditation
is inherit in robbery.
Evident Premeditation
- The essence of
evident
premeditation is
that the execution
of the act was
preceded by cool
though and
reflection upon the
resolution to carry-
out the criminal
intent during a
space of time
sufficient to arrive
at a calm
judgment.

Sufficient time
This contemplates cold and
deep meditation and
tenacious persistence in the
accomplishment of the
criminal act.

When there is a general plan
to kill not only the intended
victim but also anyone who
would help put up a violent
resistance, evident
premeditation may still be
considered.
CRIMINAL LAW REVIEW
21

overcome the
resolution of his
will.
- This simply means
of the reasonable
opportunity, under
the situation and
circumstances, to
ponder and reflect
upon the
consequences.
14 That craft, fraud or
disguise be employed.
The basis has
reference to the
means employed in
the commission of the
crime.
Craft
- Involves the use of
intellectual trickery
or cunning on the
part of the
accused.
- Chicanery resorted
to by the accused
to aid in the
execution of his
criminal design.

Fraud
- Insidious words or
machinations used
to induce the
victim to act in a
manner which
would enable the
offender to carry
out his design.

Disguise
- Resorting to any
device to conceal
identity.
This circumstance is
characterized by the
intellectual or mental resorts
to carry out his design.

The purpose of the offender
in using any device must be
to conceal his identity.
15 That (1) advantage be
taken of superior
strength or (2) means
be employed to weaken
the defense.
When there is an
allegation of treachery,
superior strength is
absorbed.

Abuse of superior
strength is aggravating
in coercion and forcible
abduction, when
greatly in excess of that
required to commit the
Advantage be taken
- To take advantage
of superior
strength means to
use purposely
excessive force out
of proportion to
the means of
defense available
to the person
attacked.
Abuse of Superior Strength
This aggravating
circumstance depends on
the age, size and strength of
the parties.

It is considered whenever
there is a notorious
inequality of forces between
the victim and the
aggressor, assessing a
CRIMINAL LAW REVIEW
22

offense.

Means to weaken the
defense is absorbed in
treachery.
superiority of strength
notoriously advantageous
for the aggressor which is
selected or taken advantage
of by him in the commission
of the crime.

Means employed to weaken
the defense
Applicable only to crimes
against persons, etc.
with treachery.
1. That at the time of
the attack, the
victim was not in a
position to defend
himself; and,
consciously adopted
the particular
means, method or
form of attack
employed by him.

To constitute treachery, two
conditions must be present:
1. The employment of
means of execution
that gave the
person attacked no
opportunity to
defend himself or
retaliate it; and,
2. The means of
execution were
deliberately or
consciously
adopted.

In order for treachery to
exist, two conditions must
concur:
1. The employment of
means, methods or
manner of
execution which
The basis has
reference to the
means and ways
employed in the
commission of the
crime.
Treachery absorbs the
following:
1. Abuse of
superior
strength;
2. Aid of armed
men;
3. By a Band;
4. Means to
weaken the
defense;
5. Nighttime;
6. Craft; and
7. Disregard of
age and sex.

CANNOT co-exist with
passion or obduscation.
Treachery
- 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 insure
its execution
Applicable only to crimes
against persons.

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

The mode of attack must be
consciously adopted.

Treachery cannot be
presumed.

The mode of attack must be
consciously adopted.

There must be
premeditation on the part of
the accused.

There is treachery in killing
the child.

The attack must be sudden
and unexpected.

In an continuous attack, it
must be present during the
commission of the crime.

If there is lapse of time,
treachery must be present
during the infliction of the
fatal wound.
CRIMINAL LAW REVIEW
23

would insure the
offenders safety
from any defense
or retaliatory act on
the part of the
offended party;
and,
2. Such means,
method or manner
of execution was
deliberately or
consciously chosen
by the offender.

In treachery, it makes no
difference whether or not
the victim was the same
person whom the accused
intended to kill.

When there is conspiracy,
treachery is considered
against all the offenders.
17 That means be employed
or circumstances brought
about which add ignominy
to the natural effects of
the act.
The basis has
reference to the
means employed.
aggravating
circumstance.
Applicable to crimes
against chastity, less
serious physical
injuries, light or grave
coercion and murder
Ignominy
- Is a circumstance
pertaining to the
moral order, which
adds disgrace and
obloquy to the
material injury
caused by the
crime.

That means be employed
- By augmenting the
wrong done by
increasing its pain
and adding
ignominy thereto.

Which add ignominy to the
natural effects of the act
- The means
employed or the
circumstances
brought about
must tend to make
the effects of the
crime more
humiliating or to
put the offended
party to shame.

committed after an
unlawful entry.
Greater perversity
displayed by the
accused who defies
This is a generic
aggravating
circumstance.
Unlawful entry absorbs
breaking down a wall.

Unlawful entry
- There is unlawful
entry when an
Unlawful entry must be used
as a means of entrance and
not for escape.
CRIMINAL LAW REVIEW
24

protective covers set
up by man for his
personal safety and
privacy.
Unlawful entry is
inherent in the
following:
1. Violation of
domicile;
2. Evasion of
service of
sentence;
3. Trespass to
dwelling;
4. Robbery in an
inhabited
place, public
building or
place
dedicated to
religious
worship;
5. Robbery with
homicide; and,
6. Robbery in an
uninhabited
place or in a
private
building.
entrance is
effected by a way
not intended for
the purpose.
19 That as means to the
commission of the crime a
wall, roof, floor, door or
window be broken.
Greater criminal
of the accused who
has to break a wall,
roof, floor, door or
window as a means to
commit the crime.
This is a generic
aggravating
circumstance.
Inherent in the
following crimes:
1. Robbery in an
inhabited
house or
public building
or edifice
devoted to
religious
worship; and,
2. Robbery in an
uninhabited
place or in a
private
building.
To be aggravating, breaking
a wall, roof, floor, door or
window must be used as a
means to commit the crime.
committed with the aid of
persons under fifteen
years of age, or by means
of motor vehicle, airships
Greater criminal
of the offender as
shown by the aid of
persons under 15
These are generic
aggravating
circumstances, except
use of motor vehicles
which is a qualifying
The accused must use the
motor vehicle in going to the
place of the crime, in
carrying away the effects
thereof and in facilitating
CRIMINAL LAW REVIEW
25

or other similar means. years of age, the use
of motor vehicles,
airships and similar
means to facilitate the
commission of the
crime.
under Article 248,
Paragraph 3.
their escape.

Use of a motor vehicle is not
aggravating when there is
no showing that the motor
vehicle was purposely used
to facilitate the commission
of the crime or where it is
not shown that without it
the offense charged could
not have been committed.
21 That the wrong done in
the commission of the
crime be deliberately
augmented by causing
other wrong not necessary
for its commission.
Greater criminal
of the offender as
shown by causing
another wrong not
necessary for its
commission.
aggravating
circumstance.
When is there cruelty?
There is cruelty when the
culprit enjoys and delights
in making his victim suffer
slowly and gradually,
causing him unnecessary
physical pain in the
consummation of the
criminal act.

Outrage
- To subject to gross
insult.

Scoff
- To show contempt
by derisive acts or
language.
Test in appreciating cruelty:
Whether the accused
deliberately and sadistically
augmented the wrong by
causing another wrong not
necessary for its commission
or inhumanly increased the
victims suffering or
outraged or scoffed at his
person or corpse.

Rape may be aggravating in
the form of cruelty.

There is no cruelty if the
intention was not to make
the victim suffer but to
conceal the corpus
delicti.

There is no cruelty if the
acts were committed after
the victim died.

Outraging or scoffing at the
person of the victim or his
corpse is a qualifying
that elevates the killing from
homicide to murder.

DIFFERENCES
PROVOCATION VS. VINDICATION
CRIMINAL LAW REVIEW
26

PROVOCATION VINDICATION
AS TO WHOM AGAINST
IT IS DIRECTED
Directed only to the person
committing the felony
Grave offense may be committed
also against the offenders relatives
mentioned by the law
AS TO THE
COMMISSION OF A
GRAVE OFFENSE
There is no need for a grave offense The offended party must have done
a grave offense to the offender or
his relatives mentioned by the law
AS TO THE INTERVAL OF
TIME, IF ALLOWED
It is necessary that the provocation
or threat immediately preceded the
act, i.e. that there be no interval of
time between
The vindication of the grave offense
may be proximate, which admits of
an interval of time between the
grave offense done by the offended
party and the commission of the
crime by the accused.

PROVOCATION VS. PASSION OR OBFUSCATION

PROVOCATION PASSION OR OBFUSCATION
Comes from the injured party Produced by an impulse which may
be caused by provocation
Must immediately precede the
commission of the crime
The offense which endangers
perturbation of mind need not be
immediate. It is only required that
the influence thereof lasts until the
moment the crime is committed.
AS TO THE EFFECT Effect is loss of reason and self-control on the part of the offender

PENALTIES

PENALTY DURATION ACCESSORY PENALTY PRESCRIPTION
CRIMES PENALTIES
DEATH 20 years 20 years
RECLUSION PERPETUA 20 years and 1 day to 40
years
1. Civil Interdiction for life or during the period of the sentence as the
case may be; and,
Civil Interdiction
- 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.
2. Perpetual absolute disqualification which the offender shall suffer
20 years 20 years
RECLUSION TEMPORAL 12 years and 1 day to 20
years
20 years 15 years
CRIMINAL LAW REVIEW
27

even though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
PERPETUAL OR TEMPORARY
ABSOLUTE
DISQUALIFICATION
6 years and 1 day to 12
years
This 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
elective or to be elected to such office; and,
3. The disqualification for the offices or public employments; and for
the exercise of any of the rights mentioned.

Temporary disqualification: Paragraphs (2) and (3)

4. The loss of all rights to retirement pay or other pension for any
office formerly held.
15 years 15 years
PERPETUAL OR TEMPORARY
SPECIAL DISQUALIFICATION
6 years and 1 day to
12years
The penalties for perpetual or temporary special disqualification for (1) public
office, (2) profession, or (3) calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling
affected; and,
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.

Effect on the exercise of right of suffrage:
It shall deprive the offender perpetually or during the term of the sentence,
according to the nature of the penalty, of the right to vote in any popular
election for any public officer 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.
15 years 15 years
PRISION MAYOR 6 years and 1 day to 12
years
1. Temporary absolute disqualification; and,
2. 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.
15 years 15 years
PRISION CORRECIONAL 6 months and 1 day to 6
years
1. Suspension from:
a. Public Office; and,
b. Right to follow a profession or calling.
2. If the period of imprisonment exceeds 18 months, perpetual special
disqualification from the right of suffrage.
10 years 10 years
ARRESTO MAYOR 1 month and 1 day to 6
months
1. Suspension of the right to hold office; and,
2. Suspension of the right of suffrage during the term of the sentence.
5 years 5 years
SUSPENSION 6 months and 1 day to 6
years
10 years 10 years
DESTIERRO
Article 87 of the Revised Penal
Code:
6 months and 1 day to 6
years
10 years 10 years
CRIMINAL LAW REVIEW
28

Any person sentenced to
Destierro shall not be permitted
to enter the place or places
designated in the sentence, nor
within the radius specified, which
shall not be more than 250 and
not less than 25 kilometers from
the place designated.
ARRESTO MENOR 1 day to 30 days 2 months 1 year
PUBLIC CENSURE 2 months 1 year

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CRIMINAL LAW REVIEW

Reyes, Jenny C. (2014)

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