lCRIMINAL LAW CONCEPTS AND JURISPRUDENCE

Chapter One
PRELIMINARY CONCEPTS

Definition and Nature

1) Criminal law is that branch or division of public law which defines crimes, treats
of their nature, and provides for their punishment. Penal laws are those acts of
the legislature which prohibit certain acts and establish penalties for their
violations,1 or those define crimes, treat of their nature and provide for their
punishment.2

2) Crime is a general term that refers to acts or omissions punishable by criminal

law. An act or omission is punishable only if there is a law prohibiting the
performance of the act or a law that commands a person to do an act but he
failed to perform.

3) A statute is penal when it imposes punishment for an offense committed

against the state which, under the Constitution, the Executive has the power to
pardon. In common use, however, this sense has been enlarged to include
within the term "penal statutes" all status which command or prohibit certain
acts, and establish penalties for their violation, and even those which, without
expressly prohibiting certain acts, impose a penalty upon their commission.3

4) The law is PENAL if the following are present: (a) The law must define the
criminal act; (b) It must prescribe a penalty; and (c) It must be an act of the
legislature.

Theories of Criminal Law

1) Classical or Juristic Theory. The classical theory posits that a human person is
essentially a moral creature with an absolute free will to choose between good
and evil. It asserts that one should only be adjudged or held accountable for
wrongful acts so long as free will appears unimpaired. The basic postulate of
the classical penal system is that humans are rational and calculating beings
who guide their actions with reference to the principles of pleasure and pain.
They refrain from criminal acts if threatened with punishment sufficient to

1 Lorenzo v. Posadas, 64 Phil. 353.

2 Hernandez v. Albano, 19 SCRA 95.
3 59 C.J., p. 1110.
 cancel the hope of possible gain or advantage in committing the crime. Here,
criminal liability is thus based on the free will and moral blame of the actor. The
identity of mens rea defined as a guilty mind, a guilty or wrongful purpose or
criminal intent is the predominant consideration.4 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 and evil. When he commits a felonious or criminal act
(delito doloso), 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 that 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. 5

2) Positivist or Realistic Theory. This theory posits the view that man is subdued
occasionally by a strange and morbid phenomenon which conditions him to do
wrong in spite of or contrary to his volition. It adheres to the belief that man is
inherently good but his acts or behavior may be conditioned by his
environment. Because of his upbringing, social environment and associations
he may become socially ill or an offender. This legal philosophy provides that
criminal laws must be viewed as means to reform and that the penalties must
be corrective or curative. There is great respect for the human element because
the offender is regarded as socially sick who needs treatment, not punishment.
Crimes are regarded as social phenomena which constrain a person to do
wrong although not of his own volition. Unlike the classical theory which
emphasizes on the offense itself, positivistic theory emphasizes on the offender
and not on the offense.6

3) Eclectic or Mixed Philosophy. This theory combines the good features of

classical and positivist theories. Many authors believe that our Revised Penal
Code adheres to this theory. Although the Code is mainly on classical theory,
there are some articles that pertain to positivist theory like provisions on
impossible crime and the mitigating circumstances on voluntary surrender and
plea of guilty under Article 13 (mitigating circumstances) of the Code.7

Power to Define and Punish Criminal Acts

4 Villareal v. People, G.R. No. 151258, February 1, 2012.

5 People v. Estrada, 389 Phil. 216.
6 Cited in Samahan ng mga Progresibong Kabataan, et al. v. Quezon City, et al., G.R. No.

225422, August 8, 2018.

7 Gregorio, Fundamentals of Criminal Law, page s 12-13, 1997 ed.
1) The Philippines does not recognize common law crimes. The act becomes
criminal only if there is a law specifically penalizing it. This is in consonance
with the Latin maxim nullum crimen nulla poena sine lege which literally means
there is no crime if there is no penal law punishing it.8 These concepts signify
that courts must not bring cases within the provision of law that are not
clearly embraced by it. An act must be pronounced criminal clearly by the
statute prior to its commission. The terms of the statute must clearly
encompass the act committed by an accused for the latter to be held
liable under the provision.9 Stated otherwise, there must a law which
punishes a certain act before one can be held criminally held liable.

2) The power to define and punish crimes inherently belongs to legislature. It is

inherent in the sovereign power of the state to maintain social order as an
aspect of police power. The legislature may forbid and penalize acts formerly
considered innocent and lawful provided that no constitutional rights have been
abridged.10

3) Police power refers to the power vested by the Constitution in the legislature to
make, ordain, and establish all manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or without, not repugnant to the
Constitution, as they shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same. The power is plenary and its
scope is vast and pervasive, reaching and justifying measures for public health,
public safety, public morals, and the general welfare.11

4) As an inherent attribute of sovereignty, the authority of the State to define and

punish crimes and to lay down the rules of criminal procedure is pursuant to its
stately police power. States, as a part of their police power, have a large
measure of discretion in creating and defining criminal offenses.12

5) In upholding the constitutionality of the Anti-Bouncing Check Law (BP 22), the
Court stated it is within the prerogative of the lawmaking body to proscribe
certain acts deemed pernicious and inimical to public welfare. Acts mala in se
are not the only acts which the law can punish. An act may not be considered
by society as inherently wrong, hence, not malum in se but because of the
harm that it inflicts on the community, it can be outlawed and criminally

8 Evangelista vs. People, G.R. Nos. 108135-36, August 14, 2000.

9 People v. PO1 Sullano, G.R. No. 228373, March 12, 2018 citing Causing v. COMELEC, et al.,
742 Phil. 539 (2014).
10 People v. Siton, et al., G.R. No. 169364, Sept. 18, 2009.
11 Bernas, The 1987 Constitution of the Philippines, A Commentary, pp. 95-98 (1996).
12 People v. Santiago, 43 Phil. 120.
 punished as malum prohibitum. The state can do this in the exercise of its
police power.13

Limitations of Congress to Enact Penal Laws

1) Due process and equal protection clause.

a) Constitutional basis. Sections 1 and 14 (1), Article III, of the 1987

Constitution state that “No person shall be deprived of life, liberty and
property without due process of law nor shall any person be denied the
equal protection of the laws” and “(n)o person shall be held to answer for a
criminal offense without due process of law.”
b) Constitutional guaranty. The guaranty of due process of law is a
constitutional safeguard against any arbitrariness on the part of the
Government, whether committed by the Legislature, the Executive, or the
Judiciary. It is a protection essential to every inhabitant of the country. If the
law itself unreasonably deprives a person of his life, liberty, or property, he
is denied the protection of due process. If the enjoyment of his rights is
conditioned on an unreasonable requirement, due process is likewise
violated. Whatsoever be the source of such rights, be it the Constitution
itself or merely a statute, its unjustified withholding would also be a violation
of due process. Any government act that militates against the ordinary
norms of justice or fair play is considered an infraction of the great guaranty
of due process; and this is true whether the denial involves violation merely
of the procedure prescribed by the law or affects the very validity of the law
itself.14

c) Classification of due process. This clause has been interpreted as imposing

two separate limits on government, usually called "procedural due process"
and "substantive due process." Procedural due process refers to the
procedures that the government must follow before it deprives a person of
life, liberty, or property. Classic procedural due process issues are
concerned with that kind of notice and what form of hearing the government
must provide when it takes a particular action. Substantive due process, on
the other hand, asks whether the government has an adequate reason for
taking away a person’s life, liberty, or property. In other words, substantive
due process looks to whether there is sufficient justification for the
government’s action.15

13 Lozano v. Martinez (and allied cases), G.R. No. L-63419, December 18, 1986.
14 Legaspi v. City of Cebu, G.R. No. 159110, December 13, 2013.
15 City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005.
 d) Void-for-vagueness doctrine. In exercising its power to declare what acts
constitute a crime, the legislature must inform the citizen with reasonable
precision what acts it intends to prohibit so that he may have a certain
understandable rule of conduct and know what acts it is his duty to avoid. 16
This requirement has come to be known as the void-for-vagueness
doctrine which states that a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law.17

e) Test in determining vagueness of a statute. A statute establishing a criminal

offense must define the offense with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited by the
statute. A statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2) respects - it
violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.18 The test in determining
whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice.19 There is nothing
vague about a penal law that adequately answers the basic query "What is
the violation?" Anything beyond -- the hows and the whys -- are evidentiary
matters that the law itself cannot possibly disclose, in view of the
uniqueness of every case.20

f) Violation of due process, illustration. The constitutionality of Executive

Order No. 626-A which authorizes the confiscation and forfeiture of any
carabao or carabeef from one province to another was questioned. The
measure is an invalid exercise of the police power if the method employed
is not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated when the owner of the property
confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities
of the power to adjudge the guilt of the supposed offender is a clear

16 Musser v. Utah, 333 U.S. 95.

17 Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, 2001.
18 People v. Nazario, 165 SCRA 186.
19 Romualdez v. Sandiganbayan, G.R. No. 152259, July 29, 2004.
20 Dans v. People, 349 Phil. 434 (1998).
 encroachment on judicial functions and militates against the doctrine of
separation of powers.21

g) Publication of the law is part of due process. The publication of presidential

issuances "of a public nature" or "of general applicability" is a requirement
of due process. It is a rule of law that before a person may be bound by law,
he must first be officially and specifically informed of its contents.
Publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for
the date when it goes into effect. This is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct
as citizens. Without such notice and publication, there would be no basis
for the application of the maxim "ignorantia legis non excusat." It would be
the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a
constructive one.22

h) The requirement of due process is indispensable. The minimum

requirements of due process are notice and hearing which, generally
speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness. Every person, faced by the
awesome power of the State, is entitled to "the law of the land," which as
"the law which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial.23

i) Exceptions to the rule. Notice and hearing are the essential requirements
of procedural due process. However, there are many instances under our
laws in which the absence of one or both of such requirements is not
necessarily a denial or deprivation of due process. Among the instances are
the cancellation of the passport of a person being sought for the commission
of a crime, the preventive suspension of a civil servant facing administrative
charges, the distraint of properties to answer for tax delinquencies, the
padlocking of restaurants found to be unsanitary or of theaters showing
obscene movies, and the abatement of nuisance per se, and the arrest of a
person in flagrante delicto.24

21 Ynot v. IAC, supra.

22 Taṅada v. Tuvera, G.R. No. L-63915, April 24, 1985.
23 Ynot v. IAC, et al., G.R. No. 74457, March 20, 1987.
24 Legazpi v. City of Cebu, supra.
 j) A local ordinance authorizing clamping of tire falls as exception. The
clamping of the petitioners’ vehicles pursuant to ordinance (and of the
vehicles of others similarly situated) is valid and falls as one of the
established exceptions. The immobilization of illegally parked vehicles by
clamping the tires was necessary because the transgressors were not
around at the time of apprehension. Under such circumstance, notice and
hearing would be superfluous. Nor should the lack of a trial-type hearing
prior to the clamping constitute a breach of procedural due process,
forgiving the transgressors the chance to reverse the apprehensions
through a timely protest could equally satisfy the need for a hearing. In other
words, the prior intervention of a court of law was not indispensable to
ensure a compliance with the guaranty of due process.25

2) Non-imposition of cruel and unusual punishment or excessive fines.

a) Constitutional basis. The constitutional proscription on cruel and unusual

punishment or excessive fines is found in Section 19 of Article III of the 1987
Constitution which provides: “Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment inflicted. Neither shall the death
penalty be imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua. The employment of
physical, psychological, or degrading punishment against any prisoner or
detainee or the use of substandard or inadequate penal facilities under
subhuman conditions shall be dealt with by law.” 26

b) Historical basis. The prohibition in the Philippine Bill (Constitution) against

cruel and unusual punishments is an Anglo-Saxon safeguard against
governmental oppression of the subject. It has been incorporated into the
Constitution of the United States and into most of the constitutions of the
various States in substantially the same language as that used in the
original statute. The exact language of the Constitution of the United States
is used in the Philippine Bill. It follows that punishments provided in
legislation enacted by the former sovereign of these Islands must be
considered according to the standard obtaining in the United States in order
to determine whether they are cruel and unusual.27

c) Test to be applied. The test to be applied in determining whether a penalty

is in violation of this constitutional provision is not the proportion between
the offense and the punishment, but the character of the punishment and

25 Ibid.
26 People v. Echegaray, G.R. No. 117472, February 7, 1997.
27 U.S. v. Borromeo, et al., G.R. No. L-7150, October 16, 1912.
 its mode of infliction, and that "the legislative discretion in determining the
severity of the punishment for crime is not to be interfered with by the courts,
so long as all forms of torture are avoided." Another group of authorities,
however, hold that this constitutional provisions is broad enough to confer
upon the courts the power to review legislative discretion concerning the
adequacy of the punishment "in very extreme cases; where the punishment
proposed is so severe and out of proportion of the offense as to shock public
sentiment and violate the judgment of reasonable people." In the case of
Weems v. United States,28 the court sustained the latter view.

d) Death penalty is not cruel. Punishments are cruel when they involve torture
or a lingering death; but the punishment of death is not cruel, within the
meaning of that word as used in the Constitution. It implies there something
inhuman and barbarous, something more than the mere extinguishment of
life.29

e) Duty of judicial officers to apply the law and impose penalty. As long as that
penalty remains in the statute books, and as long as our criminal law
provides for its imposition in certain cases, it is the duty of judicial officers
to respect and apply the law regardless of their private opinions. Courts are
not the fora for a protracted debate on the morality or propriety of the death
sentence where the law itself provides therefor in specific and well-defined
criminal acts. 30

3) Non-imposition of death penalty.

a) R.A. No. 9346 prohibits the imposition of death penalty. In lieu of the death
penalty, the following shall be imposed:

i) The penalty of reclusion perpetua, when the law violated makes use of
the nomenclature of the penalties of the Revised Penal Code; or
ii) The penalty of life imprisonment, when the law violated does not make
use of the nomenclature of the penalties of the Revised Penal Code.

b) In following felonies, the penalty of reclusion perpetua is imposed:

i) piracy in general;
ii) mutiny on the high seas;
iii) simple rape;
iv) qualified piracy;

28 217 U. S., 349, 54 L. ed., 793.

29 Legarda v. Valdez, G.R. No. 513, Feb. 25, 1902; People v. Echegaray, supra.
30 People v. Limaco, 88 Phil. 36
 v) qualified bribery under certain circumstances;
vi) parricide;
vii) murder;
viii) infanticide, except when committed by the mother of the child for
the purpose of concealing her dishonor or either of the maternal
grandparents for the same purpose;
ix) kidnapping and serious illegal detention under certain circumstances (i)
when the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person; (ii) when the
victim is killed or dies as a consequence of the detention; (iii) when the
victim is raped, subjected to torture or dehumanizing acts;
x) robbery with violence against or intimidation of persons under certain
circumstances;
xi) destructive arson, except when death results as a consequence of the
commission of any of the acts penalized under the article;
xii) attempted (or frustrated rape), when a homicide is committed by reason
or on occasion thereof;
xiii) plunder; and
xiv) carnapping, when the driver or occupant of the carnapped motor
vehicle is killed or raped in the course of the commission of the
carnapping or on the occasion thereof.31

4) Bill of attainder.

a) Definition. A bill of attainder is a legislative act which inflicts punishment on

individuals or members of a particular group without a judicial trial. Essential
to a bill of attainder are a specification of certain individuals or a group of
individuals, the imposition of a punishment, penal or otherwise, and the lack
of judicial trial.32 Its essence is the substitution of legislative act for a judicial
determination of guilt.33

b) Rationale. The constitutional ban against bills of attainder serves to

implement the principle of separation of powers by confining legislatures
to rule-making and thereby forestalling legislative usurpation of the judicial
function. History in perspective, bills of attainder were employed to suppress
unpopular causes and political minorities, and it is against this evil that the
constitutional prohibition is directed. The singling out of a definite class, the
imposition of a burden on it, and a legislative intent, suffice to stigmatize a
statute as a bill of attainder.34

31 People v. Jugueta, G.R. No. 202124, April 6, 2016.

32 Misolas v. Panga, G.R. No. 83341, January 30, 1990.
33 People v. Ferrer, et al., G.R. L-32613, Dec. 27, 1972.
34 Ibid.
 c) Jurisprudence. R.A. No. 9335 (Attrition Law of 2005) does not possess the
elements of a bill of attainder. It does not seek to inflict punishment without
a judicial trial. R.A. No. 9335 merely lays down the grounds for the
termination of a BIR or BOC official or employee and provides for the
consequences thereof. The democratic processes are still followed and the
constitutional rights of the concerned employee are amply protected.35

d) RA 1700 or the Anti-Subversion Act is not a bill of attainder. It does not

specify the Communist Party of the Philippines or the members thereof for
the purpose of punishment. What it does is simply to declare the Party to
be an organized conspiracy for the overthrow of the Government for the
purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines"
issued solely for definitional purposes. In fact, the Act applies not only to the
Communist Party of the Philippines but also to "any other organization
having the same purpose and their successors." Its focus is not on
individuals but on conduct. Were the Anti-Subversion Act a bill of attainder,
it would be totally unnecessary to charge Communists in court, as the law
alone, without more, would suffice to secure their punishment. But the
undeniable fact is that their guilt still has to be judicially established. The
Government has yet to prove at the trial that the accused joined the Party
knowingly, willfully and by overt acts, and that they joined the Party, knowing
its subversive character and with specific intent to further its basic objective,
i.e., to overthrow the existing Government by force deceit, and other illegal
means and place the country under the control and domination of a foreign
power.36

e) Executive Order Nos. 1, 2 and 14 authorizing sequestration of assets of

Marcos cronies are not bills of attainder. On the contrary, the executive
orders make it perfectly clear that any judgment of guilt in the amassing or
acquisition of "ill-gotten wealth" is to be handed down by a judicial tribunal,
f) In this case, the Sandiganbayan, upon complaint filed and prosecuted by
the PCGG. In the second place, no punishment is inflicted by the executive
orders, as the merest glance at their provisions will immediately make
apparent. In no sense, therefore, may the executive orders be regarded as
a bill of attainder.37

5) Ex post facto law.

35 Bureau of Customs Employees Asso. (BOCEA) v. Teves, G.R. No. 181704, December 6, 2011.
36 People v. Ferrer, G.R. No. L-32613, December 27, 1972.
37 BASECO v. PCGG, G.R. No. G.R. No. 75885 May 27, 1987.
 a) By jurisprudence, an ex post facto law is one:

i) which makes an act done criminal before the passing of the law and
which was innocent when committed, and punishes such action; or
ii) which aggravates a crime or makes it greater than when it was
committed; or which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was committed;38
or
iii) which alters the legal rules of evidence and receives less or different
testimony that the law required at the time of the commission of the
offense on order to convict the defendant;39 or
iv) a law which, in relation to the offense or its consequences, alters the
situation of a person to his disadvantage;40
v) that which assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which when done was
lawful; or deprives a person accused of crime of some lawful protection
to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of an amnesty.41

b) Ex post facto law, generally, prohibits retrospectivity of penal laws.42 If the

law is not penal, it can be applied retroactively. R.A. 8249 (an act which
further defines the jurisdiction of the Sandiganbayan) is not penal law. It is
a substantive law on jurisdiction which is not penal in character.43

Scope of Application and Characteristics of Philippine Criminal Law

1) Generality.

a) Nature and basis. Criminal law is binding on all persons who live or sojourn
in Philippine territory. This is the explicit mandate of Article 14 of the New
Civil Code which states that “penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn in the Philippines
territory subject to the principles of international law and treaty stipulations.”

b) Applies to both citizens and aliens. Our penal laws apply to both citizens
and aliens. They are bound to follow our laws. Citizens owe the State
obedience for the protection the latter is providing the former. Aliens, on the

38 Calder v. Bull, penned by Chief Justice Chase (3 Dall, 386, 390.)]

39 Mekin v. Wolfe, 2 Phil. 74 (1903)
40 People v. Sandiganbayan, 211 SCRA 241
41 Mejia v. Pamaran, 160 SCRA 457
42 Pascual v. Board of Medical Examiners, 28 SCRA 344.
43 Lacson v. Executive Secretary, et al., G.R. No. 128096 January 20, 1999.
 other hand, are bound by our penal laws, because while they are within the
Philippine territory, such laws protect them. In both instance, penal laws are
obligatory because of the protection given by the State. No foreigner enjoys
in this country extrajudicial right to be exempted from its laws and
jurisdiction.44

c) Exceptions.

i) Treaty or treaty stipulations.

(1) Doctrine of incorporation. By the doctrine of incorporation, the

country is bound by generally accepted principles of international
law, which are considered to be automatically part of our own
laws. One of the oldest and most fundamental rules in international
law is pacta sunt servanda — international agreements must be
performed in good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties. A
state which has contracted valid international obligations is bound to
make in its legislations such modifications as may be necessary to
ensure the fulfilment of the obligations undertaken. By their inherent
nature, treaties really limit or restrict the absoluteness of sovereignty.
By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived
from a convention or pact.45

(2) Examples.

(a) Visiting Force Agreement. The VFA is an agreement which

defines the treatment of United States troops and personnel
visiting the Philippines to promote "common security interests"
between the US and the Philippines in the region. It provides for
the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of
vessel and aircraft, importation and exportation of equipment,
materials and supplies.46

(b) Under the Visiting Forces Agreement, the US military authorities

have the right to exercise all criminal and disciplinary jurisdiction
conferred on them by the military law of the US over its personnel

44 People v. Galacgac, C.A., 54 O.G. 1027, cited by Luis Reyes, Criminal Law, Book I, 2012 ed.
45 Taňada, et al. v. Angara, G.R. No. 118295, May 2, 1997.
46 Bagong Alyansang Makabayan v. Zamora, 396 Phil. 623 (2000).
 in the Philippines. It has exclusive jurisdiction over its personnel
with respect to offenses including those relating to the security of
the US punishable under the US law and also offenses solely
against the property or security of the US or offenses against the
property or person of US personnel and offenses arising out of
any act or omission done in performance of official duty.47

(c) Agreement between Asian Development Bank and the

Philippines. The agreement provides that experts and
consultants performing missions for the Bank enjoy immunity
from legal processes with respect to acts performed by them in
their official capacity except when the Bank waives its immunity.
However, the immunity is not absolute. The immunity does not
apply acts done in personal private capacity with malice or in bad
faith or beyond the scope of his authority such as defamation or
theft.48

ii) Laws of preferential application.

(1) Laws of preferential application are laws which give criminal

immunity to some class of persons by reason of the nature of their
office, position, or religious belief. These persons are immune from
the operation of penal laws. These laws recognize the immunities,
rights and privileges of duly accredited foreign diplomatic
representatives of one state to another state. Hence, most states
recognize the diplomatic immunity of heads of states, ambassadors,
consuls, representatives of the UN and other personalities of similar
stature. It is a well-established principle of international law that
diplomatic representatives such as ambassadors, or public ministers
and their official retinue, possess immunity from the criminal
jurisdiction of the country of their sojourn and cannot be sued,
arrested or punished by the law of that country. 49

(2) Republic Act No. 75 provides that ambassadors or public ministers

or their domestic or domestic servant are exempted from local laws.
They cannot be arrested or imprisoned as all writs or processes
against them are considered void by operation of law. However,
following the doctrine of reciprocity, the provisions of the law do not
apply when the foreign country affected does not provide similar
protection to members of our diplomatic representatives.

47 Ibid.
48 Liang v. People, G.R. No. 125865, January 28, 2000.
49 http://www.lawgiants.com/2010/05/diplomatic-immunity-in-operation/ Visited: 24 June, 2018.
 (3) Violations of Articles of War. Under Republic Act No. 7055, members
of the Armed Forces of the Philippines and other person’s subject of
the military law including CAGFU are under the jurisdiction of the
proper civil court unless the offense charged, as determined before
arraignment by the civil court, is “service-connected offense or
crime.” When it is service-connected offense or crime, C.A. No. 408
(Articles of War) applies in which case the military courts have
jurisdiction over these crimes or offenses.50 Since the proceedings
before the court martial are criminal in nature and not administrative
proceedings, the offender cannot be charged in a civil court as he
would be placed in double jeopardy.51

(4) Presidential Decree No. 1083 or the Muslim Code of the Philippines
provides that penal laws relative to bigamy do not apply to persons
married pursuant to Muslim laws where the requirements provided
therein are complied with.

iii) International law

(1) Exemption by virtue of the principles of international law such as

sovereigns and other chiefs of state, ambassadors, ministers
plenipotentiary, ministers resident, and charges affaires. Their official
retinue are included in the coverage.

(2) Vienna Convention on Diplomatic Relations. The Vienna Convention

on Diplomatic Relations was a codification of centuries-old
customary law and, by the time of its ratification on 18 April 1961, its
rules of law had long become stable. Traditionally, the exercise of
diplomatic intercourse among states was undertaken by the head of
state himself, as being the preeminent embodiment of the state he
represented, and the foreign secretary, the official usually entrusted
with the external affairs of the state. Where a state would wish to
have a more prominent diplomatic presence in the receiving state, it
would then send to the latter a diplomatic mission. Conformably with
the Vienna Convention, the functions of the diplomatic mission
involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving
state.52

50 Navales, et al. vs. Abaya, et al., G.R. Nos. 162318-41, October 25, 2004.
51 Marcos, et al., vs. Chief of Staff, AFP, 89 Phil. 246.
52 Minucher v. CA, et al., G.R. No. 142396, February 11, 2003.
 (3) Classes of heads of diplomatic missions under the Vienna
Convention. The Convention lists the classes of heads of diplomatic
missions to include (a) ambassadors or nuncios accredited to the
heads of state, (b) envoys, ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs accredited to the ministers
of foreign affairs. Comprising the "staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff and the technical and
service staff. Only the heads of missions, as well as members of the
diplomatic staff, excluding the members of the administrative,
technical and service staff of the mission, are accorded diplomatic
rank.53

(4) Who are entitled to immunity under the Vienna Convention? Even
while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so,
nevertheless, with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the Convention,
are vested with blanket diplomatic immunity from civil and criminal
suits. The Convention defines "diplomatic agents" as the heads of
missions or members of the diplomatic staff, thus impliedly
withholding the same privileges from all others. It might bear
stressing that even consuls, who represent their respective states in
concerns of commerce and navigation and perform certain
administrative and notarial duties, such as the issuance of passports
and visas, authentication of documents, and administration of oaths,
do not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they are not
charged with the duty of representing their states in political matters.
Indeed, the main yardstick in ascertaining whether a person is a
diplomat entitled to immunity is the determination of whether or not
he performs duties of diplomatic nature.54

(5) The Philippines adopted the Vienna Convention. The Philippines is

a signatory of the Vienna Convention on Diplomatic Relations
adopted in 1961. It was concurred in by the then Philippine Senate
on May 3, 1965 and the instrument of ratification was signed by the
President on October 11, 1965, and was thereafter deposited with
the Secretary General of the United Nations on November 15. As of
that date then, it was binding on the Philippines. The second
paragraph of the Article 22 reads: "2. The receiving State is under a
special duty to take appropriate steps to protect the premises of the

53 Ibid.
54 Ibid.
 mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its
dignity." The Constitution "adopts the generally accepted principles
of international law as part of the law of the land." To the extent that
the Vienna Convention is a restatement of the generally accepted
principles of international law, it should be a part of the law of the
land.55

(6) Consuls, however, are not included. They do not possess the status
of and cannot claim the privileges and immunities accorded to
ambassadors and ministers. Consuls are not exempt from criminal
prosecution for violations of the laws of the country where he
resides.56

(7) State immunity from suit. International law is founded largely upon
the principles of reciprocity, comity, independence, and equality of
States which were adopted as part of the law of our land under Article
II, Section 2 of the 1987 Constitution.8 The rule that a State may not
be sued without its consent is a necessary consequence of the
principles of independence and equality of States.57 The practical
justification for the doctrine of sovereign immunity is that there can
be no legal right against the authority that makes the law on which
the right depends.58 In the case of foreign States, the rule is derived
from the principle of the sovereign equality of States, as expressed
in the maxim par in parem non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another.59 A
contrary attitude would "unduly vex the peace of nations."60

(8) The restrictive theory. The increasing need of sovereign States to

enter into purely commercial activities remotely connected with the
discharge of their governmental functions brought about a new
concept of sovereign immunity. This concept, the restrictive theory,
holds that the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii, but not with regard to private
acts or acts jure gestionis.61 The conduct of public bidding for the
repair of a wharf at a United States Naval Station is an act jure

55 Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983.

56 Scheneckenburger v. Moran, G.R. No. 44896, July 31, 1936.
57 United States of America, et al v. Ruiz, 136 SCRA 487 (1987).
58 Sanders v. Veridiano II, 162 SCRA 88, 96 (1988).
59 United States of America v. Guinto, 182 SCRA 644, 653 (1990).
60 United States of America, et al v. Ruiz, supra.
61 The Holy See v. Rosario, et. al., 238 SCRA 524 (1994).
 imperii.62 On the other hand, the hiring of a cook in the recreation
center catering to American servicemen and the general public at the
John Hay Air Station in Baguio City was an act jure gestionis 63 as
well as the bidding for the operation of barber shops in Clark Air Base
in Angeles City.64

(9) Agreement for the maintenance of the embassy premises is an act

jure imperii. The State may enter into contracts with private entities
to maintain the premises, furnishings and equipment of the embassy
and the living quarters of its agents and officials. It is therefore clear
that petitioner Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract with respondent for
the upkeep or maintenance of the air conditioning units, generator
sets, electrical facilities, water heaters, and water motor pumps of
the Indonesian Embassy and the official residence of the Indonesian
ambassador. The establishment of a diplomatic mission is an act jure
imperii. A sovereign State does not merely establish a diplomatic
mission and leave it at that; the establishment of a diplomatic mission
encompasses its maintenance and upkeep.65

d) Concepts.

i) Sovereignty may be limited by international agreements. There can be

no serious objection to the Philippines agreeing to undertake the things
set forth in the Agreement. Surely, one State can agree to waive
jurisdiction—to the extent agreed upon—to subjects of another State
due to the recognition of the principle of extraterritorial
immunity. Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of jurisdiction
(such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed
forces contingents of a foreign State allowed to enter another State’s
territory.66 By their nature, treaties and international agreements actually
have a limiting effect on the otherwise encompassing and absolute
nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit
the exercise of their otherwise exclusive and absolute jurisdiction. The
usual underlying consideration in this partial surrender may be the

62 United States of America, et al v. Ruiz, supra.

63 United States v. Rodrigo, 182 SCRA 644 (1990).
64 United States of America v. Guinto, supra.
65 The Republic of Indonesia v. Vinzon, G.R. No. 154706, June 26, 2003.
66 Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009.
 greater benefits derived from a pact or a reciprocal undertaking of one
contracting party to grant the same privileges or immunities to the other.
On the rationale that the Philippines has adopted the generally accepted
principles of international law as part of the law of the land, a portion of
sovereignty may be waived without violating the Constitution.67 Such
waiver does not amount to an unconstitutional diminution or deprivation
of jurisdiction of Philippine courts.68

ii) Distinguished from territorialilty principle. As distinguished from

territoriality principle, generality principle pertains to the persons
covered by the penal laws. Territoriality principle refers to the place or
situs where the act is committed.

iii) A Danish national may be held liable for violation of RA 9262 for
withholding support on the minor child. The Territoriality Principle69 in
criminal law, in relation to Article 14 of the New Civil Code, applies to the
instant case, which provides that: penal laws and those of public security
and safety shall be obligatory upon all who live and sojourn in Philippine
territory, subject to the principle of public international law and to treaty
stipulations.70

2) Territoriality.

a) This principle enunciates two (2) concepts: One, that our penal laws are
enforceable within the Philippine territory; and two, that our penal laws
cannot be enforced outside the Philippine territory. The basis of this
principle is Article 2 of the Revised Penal Code which provides that its
provisions shall be enforced within the Philippine archipelago including its
atmosphere, its internal waters, and maritime zone.

i) First concept: Penal laws are enforceable within the Philippine territory.
The principle simply states that penal laws are enforceable within the
Philippine territory. These laws undertake to punish acts committed in
the Philippine territory. In other words, all crimes committed within the
territory of the Philippines are triable by our local courts.

67 Tañada v. Angara, G.R. No. 118295, May 2, 1997.

68 Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948).
69 Author’s note: The ponente seems to have erroneously defined and applied the Territoriality

Principle in this case. What is applicable is the Generality Principle as it pertains to the persons
covered by criminal law.
70 Del Socorro v. Van Wilsem, G.R. No. 193707, December 10, 2014.
 (1) Exceptions: In the following instances, our local courts cannot try the
crimes committed even within the territory of the Philippines:

(a) Foreign merchant vessel. In case of crime committed on a foreign

merchant vessel, there are two fundamental rules on this
particular matter in connection with International Law:

(i) The French rule, according to which crimes committed aboard

a foreign merchant vessel should not be prosecuted in the
courts of the country within whose territorial jurisdiction they
were committed, unless their commission affects the peace
and security of the territory; and

(ii) The English rule, based on the territorial principle and

followed in the United States, according to which, crimes
perpetrated under such circumstances are in general triable
in the courts of the country within territory they were
committed.71

(iii) The English Rule is observed in our jurisdiction.72 Of this two

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

(iv) To be triable, the crime must be committed on board a foreign

merchant vessel while in Philippine waters and that the crime
affects a breach of public order. Hence, mere possession of
opium is not triable as it does not involve a breach of public
security unless opium is landed on Philippine soil.73 However,
the rule does not apply to case of smoking opium on board
the vessel as it already produces its pernicious effects in the
country.74

(v) If the foreign vessel is not in transit and a Philippine port is its
destination, any crime committed on board is triable in the
Philippines except those concerning internal management of
the vessel. Hence, mere possession of opium is triable here.75

71 U.S. v. Wong Cheng, G.R. No. L-18924, October 19, 1922.

72 U.S. v. Bull, 15 Phil. 7.
73 U.S. v. Look Chow, 18 Phil. 573.
74 U.S. v. Wong Cheng, supra.
75 U.S. v. Ang Sing, 36 Phil. 378.
 (b) Foreign military vessel. Philippine laws do not apply to those
crimes committed inside the foreign military or public vessels.
Warships are considered extension of their flag states, hence,
immune from local jurisdiction. However, this immunity will not
apply if the crew violate the laws while they are on off duty.76

(c) Foreign aircraft. Crimes committed aboard the foreign aircraft

traveling in the Philippine airspace are not triable in the
Philippines. It is the state of registration which has jurisdiction
over the same while it is in flight over the high seas or any other
area outside the territory of any state.77

ii) Second concept: Penal laws cannot be enforced outside the Philippine
territory. In this principle, the rule enunciates that our penal laws cannot
be enforced beyond our territorial jurisdiction. This simply means that
our local courts cannot try those crimes if committed outside our territory.

(1) Exceptions.

(a) The exceptions to this rule are found in Article 2 of the Revised
Penal Code. Article 2 amplifies the protective principle which
states that the Philippines has jurisdiction over the crimes
committed abroad by nationals or foreigners which are prejudicial
to its security and interest. In the following instances, penal laws
shall be enforced even outside the Philippine territory against
those who:

(i) Should commit an offense while on Philippine ship or airship;

(ii) Should forge or counterfeit any coin or currency note of the
Philippines or obligations or securities issued by the
Government;
(iii) Should be liable for acts connected with the introduction into
the Philippines of the said obligations;
(iv) While being a public officer or employee, should commit an
offense in the exercise of their functions; or
(v) Should commit any of the crimes against national security and
the laws of nations.

76Marlo Campanila, The Revised Penal Code, p. 35, 2007 ed.

77Convention on Offenses and Certain Other Acts Committed on Board Aircraft (cited in The
Revised Penal Code, Marlo Campanila, p. 35, 2007 ed.).
 (b) Crimes under international law: genocide, crimes against
humanity, war crimes, and crimes of aggression.78

(c) Special penal laws:

(i) Human Security Act (RA 9372);

(ii) The Terrorism Financing Prevention and Suppression Act (RA
10168);
(iii) Trafficking in person (RA 9208 as amended by RA 10364);
(iv) Data privacy act (RA 10173);

3) Prospectivity.

a) As a general rule, penal laws should not have retroactive application, lest
they acquire the character of an ex post facto law.79 An exception to this
rule, however, is when the law is advantageous to the accused. According
to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but
founded on the very principles on which the right of the State to punish and
the combination of the penalty are based, and regards it not as an exception
based on political considerations, but as a rule founded on principles of strict
justice."80

b) The law looks forward, never backward. Lex prospicit, non respicit. A new
law has a prospective, not retroactive, effect. However, penal laws that
favor a guilty person, who is not a habitual criminal, shall be given
retroactive effect. These are the rule, the exception and exception to the
exception on effectivity of law.81

i) Exceptions:

(1) Article 22 of RPC provides that penal laws shall have a retroactive
effect in so far as they favor the person guilty of a felony, who is not
a habitually delinquent.
(2) If favorable to the accused, a penal law may be given retroactive
effect.
(3) Even if favorable to the accused, a penal law cannot be given
retroactive effect if the accused is a habitual delinquent or when the
law expressly so provides.

78 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011.

79 Mejia v. Pamaran, G.R. Nos. L-56741-42, April 15, 1988.
80 People v. Moran, 44 Phil. 387, 408 (1923).
81 Valeroso v. People, G.R. No. 164815, February 22, 2008.
 c) Concepts.

i) The rule on retroactivity states that criminal laws may be applied

retroactively if favorable to the accused. This principle, embodied in the
Revised Penal Code, has been expanded in certain instances to cover
special laws.82

ii) A judicial decision may also be given retroactive application. Decisions

of the Supreme Court, although in themselves not laws, are
nevertheless evidence of what the laws mean, and this is the reason
why under Article 8 of the New Civil Code, "Judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal
system.” The interpretation upon a law by the Court constitutes a part of
the law as of the date that law was originally passed, since this Court's
construction merely establishes the contemporaneous legislative intent
that the law thus construed intends to effectuate.83

iii) The general rule that statutes are prospective and not retroactive does
not ordinarily apply to procedural laws. It has been held that "a
retroactive law, in a legal sense, is one which takes away or impairs
vested rights acquired under laws, or creates a new obligation and
imposes a new duty, or attaches a new disability, in respect of
transactions or considerations already past. Hence, remedial statutes or
statutes relating to remedies or modes of procedure, which do not create
new or take away vested rights, but only operate in furtherance of the
remedy or confirmation of rights already existing, do not come within the
legal conception of a retroactive law, or the general rule against the
retroactive operation of statutes." 84

iv) Administrative Circular 12-2000, establishing a rule of preference in

imposing penalties for violations of Batas Pambansa Blg. 22 (BP 22), is
not a penal law; hence, Article 22 of the Revised Penal Code is not
applicable. The circular applies only to those cases pending as of the
date of its effectivity and not to cases already terminated by final
judgment.85

d) Effects of repeal/amendment of penal law:

82 People v. Langit, 392 Phil. 94 (2000); Gonzales v. CA, 343 Phil. 297 (1997).
83 People v. Jabinal, 55 SCRA 607.
84 Tan, Jr. v. CA, G.R. No. 136368, January 16, 2002.
85 Go v. Dimagiba, G.R. No. 151876, June 21, 2005.
 i) Nature of express repeal. A declaration in a statute, usually in its
repealing clause, that a particular and specific law, identified by its
number or title, is repealed is an express repeal; all others are implied
repeals. The question of whether a particular law has been repealed or
not by a subsequent law is a matter of legislative intent. The lawmakers
may expressly repeal a law by incorporating therein a repealing
provision which expressly and specifically cites the particular law or
laws, and portions thereof, that are intended to be repealed.86

ii) Effect of express repeal. If by express repeal the crime is obliterated, all
pending cases at the time of repeal are to be dismissed. The repeal even
extends to those who are already convicted and serving sentence under
the repealed law unless they are habitually delinquents or the repealing
law provides otherwise. The repeal of a statute defeats all actions and
proceedings pending under the repealed statute at the time of its repeal,
including those cases which are still pending appeal.87

iii) Condition for this rule. The enactment of new penal laws,
notwithstanding the fact that they contain general repealing clauses,
does not deprive the courts of jurisdiction to try, convict, and sentence
persons charged with violations of the old law prior to the date when the
repealing law goes into effect, unless the new law wholly fails to penalize
the acts which constituted the offense defined and penalized in the
repealed law.88 Where the repealing law wholly fails to penalize the acts
which constitute the offense defined and penalized in the repealed law,
the repeal carries with it the deprivation of the courts of jurisdiction to try
the persons charged with violation of the old law. 89

iv) Rule where repeal is absolute. Where the repeal of a penal law is total
and absolute and the act with was penalized by a prior law ceases to be
criminal under the new law, the previous offense is obliterated.90 It is a
recognized rule in this jurisdiction that a total repeal deprives the courts
of jurisdiction to try, convict and sentence persons charged with violation
of the old law prior to the repeal.

v) Example of absolute repeal. R.A. No. 7636 expressly repealed R.A. No.
1700 (Anti-Subversion Law), as amended. The repeal was categorical,
definite and absolute. There was no saving clause in the repeal. The

86 Mecano v. COA, G.R. No. 103982, December 11, 1992.

87 Aisporna v. CA, G.R. No. L-47533, October 27, 1981.
88 U.S. v. Cuna, 12 Phil. 241.
89 People v. De Pastor, G.R. No. L-355, February 12, 1947.
90 People v. Tamayo, 61 Phil. 225 (1935).
 legislative intent of totally abrogating the old anti-subversion law is clear.
Thus, it would be illogical for the trial courts to try and sentence the
accused-private respondent for an offense that no longer exists. RA
7636 should be applied retroactively to accused.

vi) Nature of implied repeal. Repeal by implication proceeds on the premise

that where a statute of later date clearly reveals an intention on the part
of the legislature to abrogate a prior act on the subject, that intention
must be given effect. Hence, before there can be a repeal, there must
be a clear showing on the part of the lawmaker that the intent in enacting
the new law was to abrogate the old one. The intention to repeal must
be clear and manifest; otherwise, at least, as a general rule, the later act
is to be construed as a continuation of, and not a substitute for, the first
act and will continue so far as the two acts are the same from the time
of the first enactment.91

vii) Categories of implied repeal. There are two categories of repeal by

implication. The first is where provisions in the two acts on the same
subject matter are in an irreconcilable conflict, the later act to the extent
of the conflict constitutes an implied repeal of the earlier one. The
second is if the later act covers the whole subject of the earlier one and
is clearly intended as a substitute, it will operate to repeal the earlier
law.92

viii) Implied repeal by irreconcilable inconsistency. It takes place when the

two statutes cover the same subject matter; they are so clearly
inconsistent and incompatible with each other that they cannot be
reconciled or harmonized; and both cannot be given effect, that is, that
one law cannot be enforced without nullifying the other.93

ix) Second category is by codifying or revising the old laws. The second
category of repeal is the enactment of a statute revising or codifying the
former laws on the whole subject matter. This is only possible if the
revised statute or code was intended to cover the whole subject to be a
complete and perfect system in itself. It is the rule that a subsequent
statute is deemed to repeal a prior law if the former revises the whole
subject matter of the former statute. When both intent and scope clearly
evidence the idea of a repeal, then all parts and provisions of the prior
act that are omitted from the revised act are deemed repealed.
Furthermore, before there can be an implied repeal under this category,

91 Mecano v. COA, supra.

92 Ibid.
93 Villegas v. Subido, 41 SCRA 190 (1971).
 it must be the clear intent of the legislature that the later act be the
substitute to the prior act.94

x) Implied repeal not favored. It is a basic rule of statutory construction that

repeals by implication are not favored unless it is manifest that such is
the legislative intent.95 This doctrine is premised on the rationale that the
will of the legislature cannot be overturned by the judicial function of
construction and interpretation.96 The presumption is against
inconsistency and repugnancy for the legislature is presumed to know
the existing laws on the subject and not to have enacted inconsistent or
conflicting statutes.97

xi) The retroactive application of RA 1095198 with respect to the penalty.

Although the decision had long been final, the Court re-opened the case
by applying the beneficent provisions of the law. It held that, as a rule,
reopening of the case must be before finality of judgment. In this case,
it took three years after the entry of the judgment before a motion to
reopen the case was filed. The judgment has long become final and
executory. But when exceptional circumstances exist, such as the
passage of an amendatory law imposing penalties more lenient and
favorable to the accused, the Court can direct reopening of a final and
immutable judgment, the objective of which is to correct not so much the
findings of guilt but the applicable penalties to be imposed. For as long
as it is favorable to the accused, said recent legislation shall find
application regardless of whether its effectivity comes after the time
when the judgment of conviction is rendered and even if service of
sentence has already begun.99

Rules on Statutory Construction in Criminal Law

1) Statutory construction of penal laws. It is an ancient rule of statutory

construction that penal statutes should be strictly construed against the
government or parties seeking to enforce statutory penalties and in favor of
the persons on whom penalties are sought to be imposed. This simply
means that words are given their ordinary meaning and that any reasonable

94 Mecano v. COA, supra.

95 Napocor v. Province of Lanao del Sur, 264 SCRA 271.
96 Ty v. Trampe, 250 SCRA 500; Frivaldo v. Comelec, 257 SCRA 727.
97 U.S. v. Palacio, 33 Phil. 208 (1916).
98 An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is Based

and the Fines Imposed Under the Revised Penal Code, Amending for the Purpose Act No. 3815,
Otherwise Known as “The Revised Penal Code”, as Amended. (Passed August 27, 2017).
99 Hernan v. Sandiganbayan, G.R. No. 217874, December 5, 2017.
 doubt about the meaning is decided in favor of anyone subjected to a
criminal statute. This canon of interpretation has been accorded the status
of a constitutional rule under principles of due process, not subject to
abrogation by statute.100

2) Penal law is strictly construed. Penal law is to be construed, in case of

doubt, strictly against the state. Criminal and penal statutes must be strictly
construed, that is, they cannot be enlarged or extended by intendment,
implication, or by any equitable considerations. In other words, the language
cannot be enlarged beyond the ordinary meaning of its terms in order to
carry into effect the general purpose for which the statute was enacted. Only
those persons, offenses, and penalties, clearly included, beyond any
reasonable doubt, will be considered within the statute's operation. They
must come clearly within both the spirit and the letter of the statute, and
where there is any reasonable doubt, it must be resolved in favor of the
person accused of violating the statute; that is, all questions in doubt will be
resolved in favor of those from whom the penalty is sought.101

3) Penal laws are not to be extended or enlarged by implications,

intendments, analogies or equitable considerations. Penal laws are not
to be strained by construction to spell out a new offense, enlarge the field
of crime or multiply felonies. Hence, in the interpretation of a penal statute,
the tendency is to subject it to careful scrutiny and to construe it with such
strictness as to safeguard the rights of the accused. If the statute is
ambiguous and admits of two reasonable but contradictory constructions
that which operates in favor of a party accused under its provisions is to be
preferred.102 The principle is that acts in and of themselves innocent
and lawful cannot be held to be criminal unless there is a clear and
unequivocal expression of the legislative intent to make them
such. Whatever is not plainly within the provisions of a penal statute
should be regarded as without its intendment.103

4) Doctrine of in dubio pro reo. The doctrine of in dubio pro reo (literally, when
in doubt, for the accused) means that whenever a penal law is to be
construed or applied and the law admits of two interpretations – one lenient
to the offender and one strict to the offender – that interpretation which is
lenient or favorable to the offender will be adopted. The fundamental
principle in applying and in interpreting criminal laws is to resolve all doubts
in favor of the accused. In dubio pro reo. When in doubt, rule for the

100 People v. Temporada, G.R. No. 173473, December 17, 2008.

101 People v. Garcia, G.R. No. L-2873, February 28, 1950.
102 Centeno v. People, et al., G.R. No. 113092, September 1, 1994.
103 People v. PO1 Sullano, supra.
 accused.104 This is in consonance with the constitutional guarantee that the
accused shall be presumed innocent unless and until his guilt is established
beyond reasonable doubt.105

5) Rule of lenity. Intimately related to the in dubio pro reo principle is the rule
of lenity. The rule applies when the court is faced with two possible
interpretations of a penal statute, one that is prejudicial to the accused and
another that is favorable to him. The rule calls for the adoption of an
interpretation which is more lenient to the accused.106

Applicability of the Revised Penal Code to Special Penal Laws

Article 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.

1) Nature. Article 10 of the RPC reads as follows: 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.

2) Article 10 explained. The article is composed of two clauses. The first provides
that offenses which in the future are made punishable under special laws are
not subject to the provisions of the RPC, while the second makes the RPC
supplementary to such laws. While it seems that the two clauses are
contradictory, a sensible interpretation will show that they can perfectly be
reconciled.107

3) First clause of Article 10. The first clause should be understood to mean only
that the special penal laws are controlling with regard to offenses therein
specifically punished. Said clause only restates the elemental rule of statutory
construction that special legal provisions prevail over general ones. Lex
specialis derogant generali. In fact, the clause can be considered as a
superfluity, and could have been eliminated altogether. The second clause
contains the soul of the article. The main idea and purpose of the article is

104 People v. Temporada, G.R. No., 173473, December 17, 2008.

105 Intestate Estate of Manolita Gonzales Vda. De Carungcong v. People, G.R. No. 181409,
February 11, 2010.
106 Ibid.
107 Ladonga v. People, G.R. No. 141066, February 17, 2005.
 embodied in the provision that the "code shall be supplementary" to special
laws, unless the latter should specifically provide the contrary.108

4) Concepts.

a) Generally, the provisions of the Revised Penal Code are not applied on
special penal laws. However, if the special penal laws use the
nomenclatures of the penalties of the Code, then it has a suppletory
application.109 The suppletory effect of the Revised Penal Code to special
laws cannot be invoked where there is a legal or physical impossibility of,
or a prohibition in the special law against, such supplementary application.
The situation, however, is different where although the offense is defined in
and ostensibly punished under a special law, the penalty therefor is actually
taken from the Revised Penal Code in its technical nomenclature and,
necessarily, with its duration, correlation and legal effects under the system
of penalties native to said Code. While these are special laws, the fact that
the penalties for offenses thereunder are those provided for in the Revised
Penal code lucidly reveals the statutory intent to give the related provisions
on penalties for felonies under the Code the corresponding application to
said special laws, in the absence of any express or implicit proscription in
these special laws. To hold otherwise would be to sanction an indefensible
judicial truncation of an integrated system of penalties under the Code and
its allied legislation, which could never have been the intendment of
Congress. Where the special law expressly grants to the court discretion in
applying the penalty prescribed for the offense, there is no room for the
application of the provisions of the Code.110

b) However, these rules are inapplicable to P.D. No. 532 (Anti-Piracy and Anti-
Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling Law of
1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer
Penalties Therefor), in those cases, the lawmaker clearly intended a single
integrated offense or a special complex offense because the death therein
occurs as a result or on the occasion of the commission of the offenses
therein penalized or was not the primary purpose of the offender.111

c) Under RA 9165 (Comprehensive Dangerous Drugs Act of 2002), the

penalties for acts punishable therein do not use the nomenclatures of the
Revised Penal Code. Hence, the provisions of the Code are not applied in
suppletory manner. However, in a case, the accused, who was 17 years

108Ibid.
109 People v. Simon, G.R. No. 93028, July 29, 1994.
110 People v. Quijada, G.R. No. 115008-09, July 24, 1996.
111 Ibid.
 old, was convicted for violations of Sections 5 and 11 of RA 9165. Under
Sec. 98 of the law, where the offender is a minor, the penalty to be imposed,
instead of life imprisonment, should be reclusion perpetua. Since the
nomenclature of the Code was used, the provisions can now be used in
suppletory manner. Hence, the privileged mitigating circumstance of
minority can now be appreciated in fixing the penalty that should be
imposed. Applying the rules, the proper penalty should be one degree lower
than reclusion perpetua, i.e. reclusion temporal. Applying the ISLAW, the
minimum penalty should be taken from the penalty next lower in degree in
which is prision mayor and the maximum penalty shall be taken from the
medium period of reclusion temporal, there being no mitigating nor
aggravating circumstance. Initially, the ISLAW is inapplicable because the
penalty is indivisible. By virtue of the privileged mitigating circumstance, the
penalty became divisible.112

d) May an accused found guilty of violations of Batas Pambansa Blg. 22 be

made to suffer subsidiary imprisonment in case he fails to pay the fines
imposed by the trial court for such violations? Yes, the provisions on
subsidiary imprisonment can be applied suppletorily to BP Blg. 22 pursuant
to Article 10 of the Code. The second paragraph of Article 10 of the said
Code provides that this Code shall be supplementary to such laws, unless
the latter should specially provide the contrary. Articles 100 (civil liability)
and 39 (subsidiary penalty) are applicable to offenses under special laws.
The absence of an express provision on subsidiary imprisonment in BP
Blg. 22 does not and cannot preclude its imposition in cases involving its
violations.113

e) Cases where the provisions of the Code were applied to special laws:

i) Article 22 of the RPC, which concerns the retroactive effect of penal laws
if they favor the accused, was applied suppletorily by the Court to
violations of Act No. 3030, the Election Law;114

ii) Article 17 of the RPC, regarding the participation of principals in the

commission of a crime, was applied suppletorily in the case of
misappropriation of public funds as defined and penalized under Act No.
1740;115

112 People v. Mantalaba, G.R. No. 186227, July 20, 2011.

113 Yu v. People, G.R. No. 134172, September 20, 2004.
114 People v. Parel , 44 Phil. 437
115 U.S. v. Ponte, 20 Phil. 379
 iii) Article 45 of the RPC, which concerns the confiscation of the instruments
used in a crime, was applied in the case for violation of Act No. 1461,
the Opium Law;116

iv) The Court applied suppletorily Article 39 of the RPC on subsidiary

penalty to cases of violations of Act No. 3992, or the Revised Motor
Vehicle Law;117

v) The Court applied suppletorily the rules on the service of sentences

provided in Article 70 of the RPC in favor of the accused who was found
guilty of multiple violations of R.A. No. 6425, or the Dangerous Drugs
Act of 1972;118

vi) The Court applied suppletorily Articles 17, 18 and 19 of the RPC to
define the words principal, accomplices and accessories under R.A. No.
8042, otherwise known as the Migrant Workers and Overseas Filipinos
Act of 1995, because said words were not defined therein, although the
special law referred to the same terms in enumerating the persons liable
for the crime of illegal recruitment;119

vii) The Court applied suppletorily the provisions on subsidiary

imprisonment under Article 39 of the RPC to Batas Pambansa
(B.P.) Blg. 22, otherwise known as the Bouncing Checks Law;120

viii) The Court applied suppletorily the principle of conspiracy under Article
8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision
therein;121

ix) The principle of conspiracy under Article 8 of the RPC was applied
suppletorily to Republic Act No. 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of 2004.122

116 U.S. v. Bruhez, 28 Phil. 305

117 People v. Moreno, 60 Phil. 712
118 People v. Li Wai Cheung, G.R. Nos. 90440-42, October 13, 1992
119 People v. Chowdury, 382 Phil. 459
120 Yu v. People, G.R. No. 134172, 20 September 2004,
121 Ladonga v. People, G.R. No. 141066, February 17, 2005
122 Go-Tan v. Tan G.R. No. 168852, September 30, 2008
 Chapter Two
FELONIES

Felonies

Article 3. Definitions. - Acts and omissions punishable by law are

felonies (delitos).

Felonies are committed not only be means of deceit (dolo) but also by
means of fault (culpa).

There is deceit when the act is performed with deliberate intent and
there is fault when the wrongful act results from imprudence, negligence,
lack of foresight, or lack of skill.

1) Definition and concept of felonies.

a) Felonies are acts or omissions punishable by the Revised Penal Code.

Felonies are crimes punishable by the Revised Penal Code, while offenses
are those acts or omissions punishable by special penal laws (SPLs).

2) Classification of felonies.

a) According to the means by which they are committed.

i) Intentional felonies; and

ii) Culpable felonies.123

b) According to their stages of their execution.

i) Consummated;
ii) Frustrated;
iii) Attempted.124

c) According to gravity.

i) Grave felonies – those to which the law attaches the capital punishment
or penalties which in any of their periods is afflictive;
ii) Less grave felonies - those to which the law punishes with penalties
which in their maximum period are correctional;

123 Article 3, RPC, as amended by RA 10951.

124 Article 6, Ibid.
 iii) Light felonies are those infractions of law or the commission of which the
penalty of arresto menor or a fine not exceeding Forty thousand pesos
(₱40,000) or both is provided.125

3) General elements of felony:

a) There must be an act or omission;

b) The act or omission must be punishable under the Revised Penal Code;
and
c) The act is committed by means of dolo or culpa.126

4) Felony is committed either by dolo and culpa.

a) Felonies by means of dolo (deliberate intent). 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 and evil. When he commits a felonious or criminal act
(delito doloso), 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.127 The act is performed with deliberate intent which
implies that the act is voluntary or freely committed. Dolo involves malice or
deliberate intent. The term dolo or malice is a complex idea involving the
elements of freedom, intelligence, and intent.

i) Elements:

(1) Freedom. The first element, freedom, refers to an act done with
deliberation and with power to choose between two things. 128 If a
person has no freedom, he is not human but a mere tool. It is negated
by irresistible force or uncontrollable fear.

(2) Intelligence. The second element, intelligence, concerns the ability

to determine the morality of human acts, as well as the capacity to
distinguish between a licit and an illicit act.129 It is the moral capacity
to determine what is right from what is wrong and to realize the

125 Article 9, Ibid.

126 People v. Gonzales, G.R. No. 80762, March 19, 1990
127 People v. Estrada, G.R. No. 130487, June 19, 2000.
128 Villareal v. People, G.R. No. 151258 February 1, 2012
129 Ibid.
 consequences of one’s acts. It is negated by insanity, imbecility, or
minority. The second element of dolus is intelligence; without
this power, necessary to determine the morality of human acts
to distinguish a licit from an illicit act, no crime can exist, and
because the accused has no intelligence, the law exempts him
from criminal liability.130

(3) Intent. The last element, intent, involves an aim or a determination to

do a certain act.131 It is the state of mind accompanying an act,
especially a forbidden act.132 It is the use of a particular means to
effect the desired result. It refers to the purpose of the mind and the
resolve with which a person proceeds. It is negative by mistake of
fact. If there is no intent, there is no felony committed by dolo, but a
felony may still exist if culpa is present.

ii) Concept of intent.

(1) The word "intent" has been defined as a design; a determination

to do certain things; an aim; the purpose of the mind, including
such knowledge as is essential to such intent; the design
resolve, or determination with which a person acts. It is this
intent which comprises the third element of dolo as a means of
committing a felony, freedom and intelligence being the other
two.133

(2) Intent is described as the state of mind accompanying an act

especially a forbidden act. It refers to the purpose of the mind and
the resolve with which a person proceeds.134 Intent is presumed from
the commission of an unlawful act (general intent). However, if is a
specific intent as an element of the crime, it is necessary that it must
be established. It cannot be presumed.135

(3) To constitute a crime, the act must be generally accompanied by a

criminal intent. Actus non facit reum, nisi mens sit rea. A crime is not
committed if the mind of the person performing the act complained
of is innocent.136 Actus rea means guilty act while mens rea means

130 Guevarra v. Almodovar, G.R. No. 75256, January 26, 1989.

131 Ibid.
132 Ibid.
133 Ibid.
134 Jabalde v. People, G.R. 195224, June 15, 2016.
135 People v. Paganor, G.R. No. 140006-10, April 20, 2001.
136 Sy v. Secretary of Justice Merceditas Gutierrez, et al., G.R. No. 171579, November 14, 2012.
 guilty mind. Actus rea is the wrongful act which renders the actor
criminally liable if combined with mens rea. Mens rea (criminal intent)
must co-exist with actus rea (unlawful act) for a crime to exist. In the
crime of attempted homicide, intent to kill must be proved otherwise
the crime would only be physical injuries. Also, in the crime of
attempted rape, intent to lie (or sexual intercourse) is an element. In
its absence, the crime is only acts of lasciviousness. In the same
vein, if the abduction has no lewd design, the crime would only be
kidnapping because lewd design is an element of the crime of
forcible abduction.

(4) However, there are crimes that exist even without actus rea (unlawful
act). In case of conspiracy or proposal as a felony, mere conspiracy
or proposal consummates the crime. It need not overt acts to be
committed as the law punishes the criminal intent (mens rea). Also
in case of impossible crime, the law punishes not the resulting crime
but the propensity of the offender to commit crime. Finally, mere
possession of picklock, even without actual theft, is already
punishable under Article the penal code.

(5) Intent is a state of mind. It can be proved by overt acts of a person.

The choice of a particular means will show the true intent of the
offender. For example, animus lucrandi or intent to gain is an internal
act which can be established through the overt acts of the offender.
The unlawful taking of another’s property gives rise to the
presumption that the act was committed with intent to gain. This
presumption holds unless special circumstances reveal a different
intent on the part of the perpetrator.137

(6) Intent is distinguished from discernment. The terms "intent"

and "discernment" convey two distinct thoughts. While both are
products of the mental processes within a person, the former
refers to the desired of one's act while the latter relates to the
moral significance that person ascribes to the said act. Hence a
person may not intend to shoot another but may be aware of the
consequences of his negligent act which may cause injury to
the same person in negligently handling an air rifle. It is not
correct, therefore, to argue that since a minor above nine years
of age but below fifteen acted with discernment, then he
intended such act to be done. He may negligently shoot his

137 De Guzman v. People, G.R. No. 166502, October 17, 2008.

 friend, thus did not intend to shoot him, and at the same time
recognize the undesirable result of his negligence.138

iii) Concept of motive.

(1) Motive generally is referred to as the reason which prompts the

accused to engage in a particular criminal activity. Motive is not an
essential element of a crime and hence the prosecution need not
prove the same.139

(2) Motive is the reason which impels one to commit an act for a definite
result while intent is the purpose to use to particular means to effect
such result.140 Intent is an element of crime while motive is not.

(3) Motive may mitigate, but does not totally exculpate, criminal
liability. Motive, in criminal law, consists of the special or
personal reason which may prompt or induce a person to
perform the act constituting a crime. It is the moving power
which impels one to act for a definite result, as distinguished
from "intent" which is the purpose to use a particular means to
effect such result. The foregoing distinction has gained wide
acceptance among our criminal law commentators. In relation
to the "particular means" employed — the overt acts committed
by a person — motive, unlike intent, is quite materially removed.
One motive can give rise to one of several possible courses of
action, lawful or unlawful, as one act could have been actuated
by one of several possible motives, good or bad.141

(4) Motive is hardly ever an essential element of a crime. A man driven

by extreme moral perversion may be led to commit a crime, without
a real motive but a just for the sake of committing it. Along the same
line, a man who commits a crime with an apparent motive may
produce different results, for which he is punished. As held in a line
of cases, the rule is well-settled that the prosecution need not prove
motive on the part of the accused when the latter has been positively
identified as the author of the crime. Lack or absence of motive for
committing the crime does not preclude conviction thereof where

138 Guevarra v. Almodovar, supra.

139 People v. Delim, G.R. No. 142773, January 28, 2003.
140 People v. Ballesteros, 349 Phil. 366 (1998).
141 Dissenting opinion of Justice Makasiar in Bagajo v. People, et al., G.R. No. L-33345,

November 20, 1978.

 there were reliable witnesses who fully and satisfactorily identified
the accused as the perpetrator of the felony.142

(5) Motive is not essential where the identity of the perpetrator is not in
doubt.143 But if the evidence is circumstantial, proof of motive is
essential. Motive is essential only when the offender cannot be
identified, and not when he is positively identified by a witness.

(6) However, motive is not essential in the following:

(a) When the act brings about variant crimes;

(b) When there is doubt as to the identity of the assailant;
(c) When the evidence on the commission of the crime is purely
circumstantial;
(d) When the perpetrator has not been positively identified and
nobody witnessed the commission of the offense;
(e) When there is the need to ascertain the truth between two
antagonistic versions of the crime;
(f) When the identification of the accused proceeds from an
unreliable source and the testimony is inconclusive and not free
from doubt;
(g) To determine whether the shooting was intentional or accidental;
(h) To determine the specific nature of the crime
(i) Where the accused claims self-defense.

b) Felonies by means of culpa (constructive intent). According to Article 3 of

RPC, there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.144 It consists in voluntarily but
without malice doing or failing to do an act. It results from negligence,
imprudence, lack of foresight or lack of skill. Imprudence is deficiency of
action while negligence is deficiency of perception.

i) Elements:

(1) Freedom;
(2) Intelligence; and
(3) Negligence/imprudence.

ii) Concept of negligence.

142 Ibid.
143 People v. Martinez, G.R. No. L-33907, January 31, 1984.
144 Villareal v. People, G.R. No. 151258, December 01, 2014.
 (1) Negligence is the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other person
suffers injury. Using the aforementioned philosophy, it may be
reliably concluded that there is no hard and fast rule whereby such
degree of care and vigilance is calibrated; it is dependent upon the
circumstances in which a person finds himself. All that the law
requires is that it is perpetually compelling upon a person to use that
care and diligence expected of sensible men under comparable
circumstance.145

(2) Negligence is want of the care required by the circumstances. It is a

relative or comparative, not an absolute, term and its application
depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require.146

(3) The test to determine the existence of negligence in a particular case

may be stated as follows: Did the defendant in the performance of
the alleged negligent act use reasonable care and caution which an
ordinary person would have used in the same situation? If not, then
he is guilty of negligence.147

(4) May a crime be committed without criminal intent? Yes, in case of

culpa and crimes punishable by mala prohibita.

5) Malum in Se and Malum Prohibitum.

a) Crimes can be classified as to their nature such as:

i) Malum in se (or mala in se); and

ii) Malum prohibitum (or mala prohibita).

b) Concept of malum in se and malum prohibitum.

i) Violations of the Revised Penal Code are referred to as mala in se,

which literally means, the act is inherently evil or bad or per se wrongful.
On the other hand, violations of special laws are generally referred to as
malum prohibitum. These are acts which are made evil by a law
prohibiting the same. However, not all violations of special laws are

145 PNR, et al., v. CA, et al., G.R. No. 157658, October 15, 2007.
146 U.S. v. Barias, G.R. No. L-7567, November 12, 1912
147 ANECO v. Balen, et al., G.R. No. 173146, November 25, 2009
 malum prohibitum. While intentional felonies are always malum
prohibitum, it does not necessarily follow that prohibited acts done in
violation of special laws are malum prohibitum. Even if the crime is
punished under a special law, if the act punished which is inherently
wrong, the same is malum in se, hence the defense of good faith and
lack of criminal intent is a valid defense unless it is the product of criminal
negligence of culpa.

ii) When the special laws require that the act be committed knowingly and
willfully, criminal intent is required to be proved before criminal liability
may arise. When the act penalized is not inherently wrong, but it is wrong
only because a law punishes the same, the act is malum prohibitum. For
example, piracy and brigandage are punishable under PD 532, a special
law. Although these acts are punished under special law, piracy and
brigandage are inherently wrong, thus they are mala in se. Hence, good
faith is a defense.

iii) A common misconception is that all mala in se crimes are found in the
Revised Penal Code (RPC), while all mala prohibita crimes are provided
by special penal laws. In reality, however, there may be mala in se
crimes under special laws, such as plunder under R.A. No. 7080, as
amended.148 Similarly, there may be mala prohibita crimes defined in the
RPC, such as technical malversation.149

iv) Test to determine whether the law is malum prohibitum. The rule on the
subject is that in acts mala in se, the intent governs, but in acts mala
prohibita, the only inquiry is, has the law been violated?150 When an act
is illegal, the intent of the offender is immaterial.151 When the doing of
an act is prohibited by law, it is considered injurious to public welfare,
and the doing of the prohibited act is the crime itself.152

v) Distinctions between malum in se and malum prohibitum.

(1) As to the moral trait of the offender, in malum in se, the basis of
criminal liability is the moral fiber of the offender. The criminal liability
would only arise if there is dolo or culpa in the commission of the
punishable act; while in malum prohibitum, the moral trait of the

148 Estrada v. Sandiganbayan, 421 Phil. 290 (2001).

149 Ysidoro v. People, G.R. No. 192330, November 14, 2012.
150 Dunlao, Sr. v. CA, 329 Phil. 613, 619 (1996).
151 Tan v. Ballena, 579 Phil. 503 (2008).
152 Dungo v. People, G.R. No. 209464, July 1, 2015.
 offender is not considered. The basis is the offender’s voluntariness
or whether he committed the prohibited act willfully.

(2) As to the defense of good faith, in malum in se, good faith or lack of
criminal intent is a defense, whereas good faith/criminal intent is not
a defense in malum prohibitum (except when intent is an element of
the crime such as in Sec. 3(e) of RA 3019 which requires that the
prohibited act be committed by a public official with evident bad faith.)

(3) As to modifying circumstances, in malum in se, the modifying

circumstances are taken into account in imposing penalty because
his moral trait is the basis of the crime. In malum prohibitum, these
modifying circumstances are not considered.

(4) As to the degree of participation, in malum in se, the degree of

participation determines the penalty imposable. In malum
prohibitum, the degree of participation of the offenders do not affect
their liability. Hence, the penalty on all of them are the same as they
are all considered principals, unless the law expressly considers
them otherwise, such as abettors of brigandage in PD 532, who are
deemed accomplices.

(5) As to the stage of commission of crime, in malum in se, the stage of

accomplishment affects the penalty imposed whether consummated,
frustrated, or attempted. In malum prohibitum, the stage of
accomplishment is only consummated. No frustrated or attempted
because it is the commission of the act itself that is penalized.

(6) As to moral turpitude, in malum in se, the crimes generally include

moral turpitude. In malum prohibitum, these do not involve moral
turpitude.

vi) The importance of knowing the distinction between malum in se and

malum prohibitum.

(1) This distinction is important with reference to the intent with which a
wrongful act is done. The rule on the subject is that in acts mala in
se, the intent governs; but in acts mala prohibita, the only inquiry is,
has the law been violated? When an act is illegal, the intent of the
offender is immaterial.153 When the doing of an act is prohibited by

153 Tan v. Ballena, 579 Phil. 503 (2008).

 law, it is considered injurious to public welfare, and the doing of the
prohibited act is the crime itself.154

(2) The better approach to distinguish between mala in se and mala

prohibita crimes is the determination of the inherent immorality or
vileness of the penalized act. If the punishable act or omission is
immoral in itself, then it is a crime mala in se - on the contrary, if it is
not immoral in itself, but there is a statute prohibiting its commission
by reasons of public policy, then it is mala prohibita. In the final
analysis, whether or not a crime involves moral turpitude is ultimately
a question of fact and frequently depends on all the circumstances
surrounding the violation of the statute.155

vii) Rules on absorption in malum in se and malum prohibitum.

(1) The doctrine of absorption of common crimes (also called Hernandez

doctrine) is a rule that enunciates that the ingredients of a crime form
part and parcel thereof,156 and hence, are absorbed by the same and
cannot be punished either separately therefrom or by the application
of Art. 48 of the Revised Penal Code.157 It held that the crime of
rebellion under the Revised Penal Code is charged as a single
offense, and that it cannot be made into a complex crime.

(2) A mala in se felony cannot absorb mala prohibita. What makes a

mala in se is criminal intent or negligence while the latter, it is criminal
because of the special laws. Thus, more than one crime will be
charges if an act violates both the Revised Penal Code and Special
Penal Law, e.g. BP 22 and estafa, illegal recruitment and estafa, and
torture and murder, homicide, physical injuries.

(3) The exception to the rule is when the special penal law (SPL)
expressly allows such absorption. If SPL’s allow absorption, then
only one crime is committed. For example, under RA 7610, if the
lascivious conduct or sexual abuse is committed against a minor who
is less than 12 years of age, the offender shall be charged and
prosecuted for rape or acts of lasciviousness. However, the penalty
is the one provided by the SPL.158

154 Dungo v. People, G.R. No. 209464, July 1, 2015.

155 Teves v. COMELEC, 604 Phil. 717 (2009), citing Dela Torre v. COMELEC, 327 Phil. 1144
(1996).
156 People v. Hernandez, 99 Phil. 515.
157 Enrile v. Amin, G.R. 93335, September 13, 1990.
158 Sac. 5(b), RA 7610.
 (4) Offenses and felonies cannot be complexed under Article 48 of RPC.
However, there is a special complex crime of carnapping with
homicide as the SPL allows it.159

(5) When an act violates the provisions of the Revised Penal Code and
a special law, the offender can be prosecuted for two crimes:

(a) Estafa and violation of BP 22 (Bouncing check law). While a BP

22 case and an estafa case may be rooted from an identical set
of facts, they nevertheless present different causes of action,
which, under the law, are considered "separate, distinct, and
independent" from each other. Therefore, both cases can
proceed to their final adjudication – both as to their criminal and
civil aspects – subject to the prohibition on double recovery. 160

(b) Estafa and violation of illegal recruitment. A person may be

charged and convicted for both illegal recruitment and estafa. The
reason therefor is not hard to discern: illegal recruitment is malum
prohibitum, while estafa is mala in se. In the first, the criminal
intent of the accused is not necessary for conviction. In the
second, such intent is imperative.161

(c) Anti-torture and the resulting crime like physical injuires. Torture
as a crime shall not absorb or shall not be absorbed by any other
crime or felony committed as a consequence, or as a means in
the conduct or commission thereof. In which case, torture shall
be treated as a separate and independent criminal act whose
penalties shall be imposable without prejudice to any other
criminal liability provided for by domestic and international
laws.162

(d) There is no absorption when the special law bars the prosecution
for other crimes, for example, terrorism absorbs the predicate
crimes, or child abuse under RA 7610 absorbs acts of
lasciviousness or rape;

159 People v. Bariquit, 395 Phil. 823 (2000).

160 Lim v. Kou Co Ping, G.R. No. 175256, August 23, 2012.
161 People v. Chua, 695 Phil.16, 31 (2012).
162 Sec. 15, RA 9745.
 (e) One crime absorbing the others as an element, or as an
aggravating circumstances such as illegal possession of firearms
absorbed by rebellion, or aggravating murder or homicide;
terrorism absorbing the predicate crimes; plunder absorbing the
predicate crimes.

(f) Article 365 of the RPC cannot absorb the charges for violation of
PD 1067 (Philippines Water Code), PD 984 (Anti-Pollution Law),
and RA 7942 (Philippine Mining Act). A mala in se felony (such
as Reckless Imprudence Resulting in Damage to Property)
cannot absorb mala prohibita crimes (such as those violating PD
1067, PD 984, and RA 7942). What makes the former a felony is
criminal intent (dolo) or negligence (culpa); what makes the latter
crimes are the special laws enacting them.163

Basis of Criminal Liability

Article 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 an account of the employment of inadequate or
ineffectual means.

1) How criminal liability is incurred.

a) The basis for incurring criminal liability is found in Article 4 of the Code.
While Article 3 refers to the manner by which criminal act is committed,
Article 4 deals with the person committing the act resulting in criminal
liability.

b) Criminal liability is incurred in two (2) ways:

i) By committing a felony even if the wrong produced as a consequence

thereof is not intended by the offender; or
ii) By impossible crime.

2) “By committing a felony even if the crime is different from what intended.”

163 Loney, et al. v. People, G.R. No. 152644, February 10, 2006.
 a) This rule is based on the Spanish maxim “El que es causa de la causa es
causa del mal causado”164 which literally means “he who is the cause of the
cause is the cause of the evil caused.” The similar rule in American
jurisprudence is that "if the act of the accused was the cause of the cause
of death, no more is required."165

b) One who commits an intentional felony is responsible for all the

consequences which may naturally and logically result therefrom, whether
foreseen or intended or not. Ordinarily, when a person commits a felony
with malice, he intends the consequences of his felonious act. In view of
paragraph 1 of Art. 4, a person committing a felony is criminally liable
although the consequences of his felonious acts are not intended by him.166

c) Requisites. In order that a person may be criminally liable for a felony

different from that which he intended to commit, it is indispensible (a) that a
felony was committed and (b) that the wrong done to the aggrieved person
be the direct consequence of the crime committed by the perpetrator. 167

i) First requisite. The act committed must be a felony. It follows that if the
act committed is lawful, even though an injury results, there is no
criminal liability except if the act committed is through negligence. 168 In
negligence case, the liability is anchored not on Article 4 but under
Article 365 of the Code which provides that one is criminally liable for
culpable felony.

(1) If the act of firing although committed in self-defense was not aimed
at the assailant but indiscriminately fired upon innocent persons, the
act of self-defense was not exercised with due care, hence, there is
criminal liability.169

(2) Although the killing of the paramour caught having sexual

intercourse with the accused wife is not an unlawful act pursuant to
Article 247 of the Revised Penal Code, the accused can be held
criminally liable for the injuries sustained by other persons due to the
presence of negligence.170

164 People v. Ural, G.R. No. L-30801, March 27, 1974.

165 40 C.J.S. 854
166 People v. Carmen, et al., G.R. No. 137268, March 27, 2006.
167 People v. Sales, G.R. No. 177218, October 3, 2011.
168 Gregorio, Fundamentals on Criminal Law Review, page 25, 1997 ed.
169 Id. citing People v. Galacgac, CA, 54 O.G. 1027.
170 People v. Abarca, G.R. No. 74433, September 14, 1987.
 ii) Second requisite. One is criminally liable for acts committed by him in
violation of law for all the natural, logical and direct consequences
resulting therefrom.

(1) If a man creates in another person’s mind an immediate sense of

danger, which causes such person to try to escape, and, in so doing,
the latter injures himself, the man who creates such state a mind is
responsible for the resulting injuries.171

(2) If a person against whom a criminal assault is directed reasonably

believes himself to be in danger of death or great bodily harm and in
order to escape jumps into the water, impelled by instinct of self-
preservation, the assailant is responsible for homicide in case of
death results by drowning.172

(3) Exception. When there is intervening cause, the felony is not the
direct and proximate cause of the injury.

d) “Although the wrongful act done be different from that which he intended.”

i) Mistake of facts (Ignorantia facti excusat).

(1) It is an act or omission which is the result of a misapprehension of

acts that is voluntary but not intentional. A mistake of fact will exempt
a person from criminal liability so long as the alleged ignorance or
mistake of fact was not due to negligence or bad faith. The actor
performed an act which would be lawful had it been true as he
believed to be. It is exempting if it is committed in good faith or under
honest belief (Ah Chong doctrine).173

(2) An honest mistake of fact destroys the presumption of general

criminal intent which arises upon the commission of felonious act.174

(3) If there is negligence, mistake of facts is not exempting and the actor
is liable for committing a felony by means of culpa.175

171 People v. Page, 77 SCRA 348 cited by Luis Reyes, The Revised Penal Code, page 71, 2012
ed.
172 U.S. v. Valdez, 41 Phil. 497, Ibid.
173 U.S. v. Ah Chong, G.R. No. L-5272, March 19, 1910.
174 People v. Oanis, 74 Phil. 257
175 Gregorio, Antonio; Fundamentals of Criminal Law, page 22, 1997 ed.
 (4) Mistake of facts due to negligence as when the accused did not first
verify the identity of the victim before firing at him as he had
opportunity to do so is not exempting.176

(5) Effect on criminal liability. No criminal liability unless there is

negligence.

ii) Mistake in the identity.

(1) Mistake in the identity is a manner or incurring criminal liability

according to Paragraph 1, Article 4, Revised Penal Code. It is
a mistake in the identity of the victim, which may either be "error in
personae" (mistake of the person), or "aberratio ictus" (mistake in the
blow), it is neither exempting nor mitigating.177

(2) Error in personae (mistake in identity).

(a) A person is criminally liable for committing an intentional felony

although the consequent victim is different from that intended due
to mistake of identity. (Art. 49 of RPC).

(b) Requisites: (a) Offender committed an intentional felony; and (b)

the consequent victim against whom the felony was directed is
different from that intended due to mistake of identity.178

(c) Effect on criminal liability. It is extenuating if the resulting crime is

greater than intended. No effect if the resulting crime is the same
as that intended.

(3) Mistake in the blow.

(a) A person who committed a felony is responsible for the direct,

natural and logical consequences of his act. He is who is the
cause of the cause is the cause of the evil caused.179 It is
characterized by aiming at one but hitting another due to
imprecision, or when one of the two accused released the second
"indian pana", which accidentally hit another person instead of
the person intended by them. They are liable for the

176 People v. Francisco, 49 Phil. 75

177 People v. Gona, 54 Phil. 605
178 Campanilla, Marlon; Revised Penal Code, page 104, 2007 ed.
179 Article 4, Revised Penal Code
 consequences of their felonious act, therefore, cannot escape the
criminal liability resulting from the injury suffered by the victim.180

(b) Effect on criminal liability. Increases criminal liability which

generally results in complex crime (Art. 48 of RPC)

iii) Lack of intent to commit so grave a wrong (praeter intentionem).

(1) Any person committing a felony (delito) although the wrongful act
done be different from that which he intended is criminally liable.

(2) Essential requisites: (a) the intended act is felonious; (b) the resulting
act is likewise a felony; and (c) the unintended albeit graver wrong
was primarily caused by the actor’s wrongful acts.

(3) Effect on criminal liability. It is mitigating under Article 13 of the Code.

iv) Proximate cause.

(1) Proximate cause is that cause which, in its natural and continuous
sequence, unbroken by an efficient intervening cause, produces the
injury, and without which the result would not have occurred.181

(2) Under paragraph 1, Article 4 of the Revised Penal Code, criminal

liability is incurred by any person committing a
felony (delito) although the wrongful act done be different from that
which he intended. Apropos to all these is that time-respected
doctrine: "He who is the cause of the cause is the cause of the evil
caused." This is the rationale in Article 4 of the Revised Penal Code
which provides that "criminal liability shall be incurred by a person
committing a felony (delito) although the wrongful act done be
different from that which he intended."

(3) Thus, anyone who inflicts injuries 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. Here, accused-
appellant 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. The foot jabs delivered by accused-appellant to the victim were

180 People v. Gemoya, G.R. No. 132633, October 4, 2000.

181 Ramos v. C.O.L Realty Corp., G.R. No. 184905, August 28, 2009.
 more than nudges, but severe kicks which ruptured the intestines of
the victim, later resulting in his death.182

(4) Even if the victim is suffering from an internal ailment, liver or heart
disease, or tuberculosis, if the blow delivered by the accused: is the
efficient cause of death; or it accelerated his death; or is the
proximate cause of death; then there is criminal liability.183

(5) Even though a blow with the fist or a kick does not cause any external
wound, it may easily produce inflammation of the spleen and
peritonitis and cause death, and even though the victim may have
been previously affected by some internal malady, yet if the blow with
the fist or foot accelerated death, he who caused such acceleration
is responsible for the death as the result of an injury willfully and
unlawfully inflicted.184

(6) If there is efficient intervening cause, there is no criminality liability.

The victim was injured when he parried the attack of the accused.
After 22 days, he suffered the symptoms of tetanus, like lockjaw and
muscle spasms. The following day, he died. It was found that the
attending physician found no tetanus in the injury, and that the victim
got infected with tetanus when after two weeks he returned to his
farm and tended his tobacco plants with his bare hands exposing the
wound to harmful elements like tetanus germs. The medical findings
lead us to a distinct possibility that the infection of the wound by
tetanus was an efficient intervening cause later or between the times
the victim was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime. There is a likelihood that
the wound was but the remote cause and its subsequent infection,
for failure to take necessary precautions, with tetanus may have
been the proximate cause of victim’s death with which the petitioner
had nothing to do.185

(7) A prior and remote cause cannot be made the basis of an action if
such remote cause did nothing more than furnish the condition or
give rise to the occasion by which the injury was made possible, if
there intervened between such prior or remote cause and the injury
a distinct, successive, unrelated, and efficient cause of the injury,
even though such injury would not have happened but for such

182 People v. Flores, G.R. No. 116525, January 18, 1996.

183 People v. Ilustre, 54 Phil. 594.
184 U.S. v. Rodriguez, 23 Phil. 22.
185 Urbano v. IAC, G.R. No. 72964, January 7, 1988.
 condition or occasion. If no danger existed in the condition except
because of the independent cause, such condition was not the
proximate cause. And if an independent negligent act or defective
condition sets into operation the instances, which result in injury
because of the prior defective condition, such subsequent act or
condition is the proximate cause.186

(8) Effect on criminal liability. Whether acting with intent or through

negligence, the actor is criminally liable.

3) Impossible crime.

a) Nature. Criminal liability is incurred 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.

b) Article 4, paragraph 2 is an innovation of the Revised Penal Code. This

seeks to remedy the void in the Old Penal Code where it was
necessary that the execution of the act has been commenced, that the
person conceiving the idea should have set about doing the deed,
employing appropriate means in order that his intent might become a
reality, and finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not present, the
law and the courts did not hold him criminally liable. This legal
doctrine left social interests entirely unprotected. The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his
formidability, and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which prove
inadequate, would constitute a felony against person or against
property. The rationale of Article 4(2) is to punish such criminal
tendencies.187

c) Under this article, the act performed by the offender cannot produce an
offense against person or property because: (1) the commission of the
offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual.188

d) To be impossible under this clause, the act intended by the offender must
be by its nature one impossible of accomplishment. There must be either

186 Manila Electric Co. v. Remoquillo, et al., 99 Phil. 118.

187 Intod v. CA, G.R. No. 103119, October 21, 1992.
188 Intod v. CA, G.R. No. 103119, October 21, 1992.
 impossibility of accomplishing the intended act in order to qualify the act an
impossible crime.189

e) Requisites:

i) That the act performed would be an offense against persons or property;

ii) That the act was done with evil intent; and
iii) That its accomplishment was inherently impossible, or the means
employed was either inadequate or ineffectual.190

f) Two (2) kinds of impossibility: (a) Legal impossibility; and (b) Factual
impossibility.

i) Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime. Legal impossibility would apply to those
circumstances where: (a) the motive, desire and expectation is to
perform an act in violation of the law; (b) there is intention to perform the
physical act; (c) there is a performance of the intended physical act; and
(d) the consequence resulting from the intended act does not amount to
a crime.191

ii) The impossibility of killing a person already dead falls in this

category.192 However, for this to exist, the victim’s fact of death
must be sufficiently established by the accused. One’s opinion
cannot support a conclusion that the latter was already dead when
the accused stabbed him. The fact of death cannot be established
by merely looking at the body. No other act was done to ascertain
this, such as checking of victim’s pulse, heartbeat or
breathing.193 Accused mere conjecture that the victim had already
expired by the time he hacked her cannot be sufficient to support
his assertion of an impossible crime.194

iii) The presence of conspiracy between the offenders negates

impossible crime. Even on the assumption that the victim was
already dead when the accused stabbed the former, the accused is
still liable since he is equally responsible for the act committed by
his co-conspirator who earlier hacked the victim. With conspiracy

189 Ibid.
190 Jacinto v. People, G.R. No. 162540, July 13, 2009.
191 Ibid.
192 Ibid.
193 People v. Callao, G.R. No. 228945, March 14, 2018.
194 People v. Gumimba, G.R. No. 174056, February 27, 2007.
 attending, collective liability attaches to the conspirators and the
Court shall not speculate on the extent of their individual
participation in the Murder. Accused defense of impossible crime
is thus completely unavailing.195

iv) Factual impossibility occurs when extraneous circumstances unknown

to the actor or beyond his control prevent the consummation of the
intended crime.196

g) Penalty for impossible crime. The penalty is arresto mayor or a fine

ranging from 200 to 500 pesos.197

h) Concepts.

i) One example is the man who puts his hand in the coat pocket of another
with the intention to steal the latter's wallet and finds the pocket empty.198

ii) Another example is when the offender shoots the place where he
thought his victim would be, although in reality, the victim was not
present in said place and thus, he failed to accomplish his end.199

iii) A collector received the post-dated check in payment of a merchandise.

Instead of remitting the same, she deposited it in the account of her
brother-in-law. The check however was dishonored. There is impossible
crime. She performed all the acts to consummate the crime of qualified
theft, which is a crime against property. Petitioner's evil intent cannot be
denied, as the mere act of unlawfully taking the check meant for Mega
Foam showed her intent to gain or be unjustly enriched. Were it not for
the fact that the check bounced, she would have received the face value
thereof, which was not rightfully hers. Therefore, it was only due to the
extraneous circumstance of the check being unfunded, a fact unknown
to petitioner at the time, that prevented the crime from being
produced. The thing unlawfully taken by petitioner turned out to be
absolutely worthless, because the check was eventually dishonored.200

195 Ibid.
196 Intod v. CA, supra.
197 Article 59, RPC.
198 U.S. v. Berrigan, 482 F. 2nd. 171.
199 Intod v. CA, supra.
200 Jacinto v. People, Ibid (5)
 iv) If the crime is not produced although there is adequate or effectual
means employed, it cannot be impossible crime but a frustrated
felony.201

v) If the acts constitute another distinct felony, an impossible crime is not

committed because objectively a crime is committed.202

vi) There is no frustrated or attempted stage because the acts performed

are believed by the accused to be capable of consummation.203

vii) In American jurisprudence, where the offense sought to be

committed is factually impossible or accomplishment, the offender
cannot escape criminal liability. He can be convicted of an attempt
to commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an
impossible crime, but as an attempt to commit a crime. On the
other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime —
neither for an attempt not for an impossible crime. The only reason
for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a
defense to a crime charge — that is, attempt. This is not true in the
Philippines. In our jurisdiction, impossible crimes are recognized.
The impossibility of accomplishing the criminal intent is not merely
a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised
Penal Code makes no distinction between factual or physical
impossibility and legal impossibility. Ubi lex non distinguit nec nos
distinguere debemos.204

viii)To uphold the contention of respondent that the offense was

Attempted Murder because the absence of the victim was a
supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person criminally
liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its
accomplishment." In that case all circumstances which prevented
the consummation of the offense will be treated as an accident

201 Gregorio, supra.

202 Ibid.
203 Ibid.
204 Intod v. CA, supra.
 independent of the actor's will which is an element of attempted
and frustrated felonies.205

Stages of Execution.

Article 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 or over acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than this own spontaneous desistance.

1) Phases of execution.

a) Subjective phase. The subjective phase is that portion of the acts

constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which,
with the prior acts, should result in the consummated crime. From that time
forward the phase is objective. It may also be said to be that period occupied
by the acts of the offender over which he has control — that period between
the point where he begins and the points where he voluntarily desists.
If between these two points the offender is stopped by reason of any cause
outside of his own voluntary desistance, the subjective phase has not been
passed and it is an attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated.206

b) Objective phase. It is the result of the acts of the execution, or the

accomplishment of the crime. If subjective and objective phases are
present, there is consummated felony.207

2) Stages of execution.

205 Ibid.
206 U.S. v. Eduave, G.R. No. 12155, February 2, 1917.
207 Gregorio, Idem. supra.
 a) Attempted felony. There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some cause
or accident other than his own spontaneous desistance.208

i) Essential elements of attempted felony:

(1) The offender commences the commission of the felony directly by

overt acts;
(2) He does not perform all the acts of execution which should produce
the felony;
(3) The offenders act be not stopped by his own spontaneous
desistance;
(4) The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.209

ii) First requisite. Overt act.

(1) Elements:

(a) That there be external acts; and

(b) Such external acts have direct connection with the crime intended
to be committed.210

(2) An overt or external act is defined as some physical activity or deed,

indicating the intention to commit a particular crime, more than a
mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete
offense.211

(3) It is necessary that the overt act should have been the ultimate step
towards the consummation of the design. It is sufficient if it was the
first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made. The act
done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to
the intended crime. In the words of Viada, the overt acts must have

208 Article 6, Revised Penal Code

209 People v. Lizada, G.R. No. 143468-71, January 24, 2003.
210 Rivera, et al., v. People, G.R. No. 116326, January 25, 2006.
211 Lizada, supra.
 an immediate and necessary relation to the offense.212

iii) Acts constitutive of attempt to commit felony distinguished from

preparatory acts. Preparatory acts consist of devising means or
measures necessary for accomplishment of a desired object or end. One
perpetrating preparatory acts is not guilty of an attempt to commit a
felony. However, if the preparatory acts constitute a consummated
felony under the law, the malefactor is guilty of such consummated
offense. For overt acts to constitute an attempted offense, it is
necessary that their objective be known and established or such
that acts be of such nature that they themselves should obviously
disclose the criminal objective necessarily intended, said objective and
finality to serve as ground for designation of the offense.213

iv) Distinction between consummated and frustrated felonies on one hand,

and attempted felonies on the other. So long as the offender fails to
complete all the acts of execution despite commencing the commission
of a felony, the crime is undoubtedly in the attempted stage. Since the
specific acts of execution that define each crime under the Revised
Penal Code are generally enumerated in the code itself, the task of
ascertaining whether a crime is attempted only would need to compare
the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.214

v) Effect of spontaneous desistance. The spontaneous desistance of a

malefactor exempts him from criminal liability for the intended crime but
it does not exempt him from the crime committed by him before his
desistance.215

vi) There is no attempted felony by omission because overt acts are not
performed.216

b) Frustrated felony. There is frustrated felony 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.217

212 Ibid.
213 People v. Lizada, supra.
214 Valenzuela v. People, G.R. No. 160188, June 21, 2007.
215 Ibid.
216 Gregorio, supra.
217 Article 6, supra.
 i) Nature. In case of frustrated crimes, the subjective phase is completely
passed. Subjectively, the crime is complete. Nothing interrupted the
offender while he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was
due to something beyond his control.218

ii) Essential elements of frustrated felony:

(1) The offender performs all the acts of execution;

(2) All the acts performed would produce a felony as a consequence;
(3) The felony is not produced;
(4) By reason or causes independent of the will of the offender.219

iii) Frustrated felony distinguished from attempted felony.

(1) In frustrated felony, the offender has performed all the acts of
execution which should produce the felony as a consequence;
whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform
all the acts of execution.

(2) In frustrated felony, the reason for the non-accomplishment of the

crime is some cause independent of the will of the perpetrator; on
the other hand, in attempted felony, the reason for the non-fulfillment
of the crime is a cause or accident other than the offenders own
spontaneous desistance.220

(3) In frustrated stage, there is no intervention of a foreign or extraneous

cause or agency between the beginning of the commission of the
crime and the moment when all of the acts have been performed
which should result in the consummated crime; while in attempted
stage, there is such intervention and the offender does not arrive at
the point of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart from his
voluntary desistance.221

iv) No frustrated stage in the following felonies:

218 U.S. v. Duave, supra.

219 People v. Caballero, G.R. No. 149028-30, April 2, 2003.
220 Palaganas v. People, G.R. No. 165483, September 12, 2006.
221 U.S. v. Duave, supra.
 (1) Theft and robbery. There is no frustrated theft/robbery because
unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has
no opportunity to dispose of the same.

(2) Rape. In the crime of rape, from the moment the offender has carnal
knowledge of his victim, he actually attains his purpose and, from
that moment also all the essential elements of the offense have been
accomplished.222 Rape is attempted if there is no penetration of the
female organ223 because not all acts of execution was
performed. The offender merely commenced the commission of a
felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the
frustrated stage in rape can ever be committed.

(3) Adultery and concubinage. There is no frustrated stage as it is either

that the accused was able to engage in sex or not. Adultery is an
instantaneous crime which is consummated and exhausted or
completed at the moment of the carnal union.224 However, some
commentators opine that there is attempted adultery as when the
couple was surprised in the room of a hotel both already
undressed.225

(4) Bribery and corruption of public official. There is no frustrated or

attempted stage since the crime is consummated at the moment the
agreement between the briber and corruptor is made.

(5) Physical injuries. There is no crime of attempted or frustrated

physical injuries because the mere inflicting of injuries already
consummates the crime. However, if there is intent to kill, the crime
is no longer physical injuries but either attempted or frustrated
homicide or murder.

(6) Acts of lasciviousness. There is no crime of attempted or frustrated

acts of lasciviousness. From the moment the offender performs all
the elements necessary for the execution of the felony, he actually
attains his purpose and all elements of the crime have been

222 People v. Orita, 184 SCRA 105.

223 People v. Tayaba, 62 Phil. 559.
224 U.S. v. Topiňo, supra.
225 Gregorio citing Viada and Cuello Callon, supra.
 accomplished.

c) Consummated felony. A felony is consummated when all the elements

necessary for its execution and accomplishment are present.226

i) The determination of whether a crime is frustrated or consummated

necessitates an initial concession that all of the acts of execution have
been performed by the offender. The critical distinction instead is
whether the felony itself was actually produced by the acts of execution.
The determination of whether the felony was produced after all the acts
of execution had been performed hinges on the particular statutory
definition of the felony.227

ii) In frustrated felony, the desire of the offender is not accomplished. In

consummated, the purpose is accomplished.

iii) No attempted or frustrated stage in the following crime (meaning, these

are penalized only when consummated):

(1) Offenses punishable by special penal laws, unless the law provides
otherwise;
(2) Formal crimes, or those crimes which are always consummated.
Examples of formal crimes: (a) acts of lasciviousness, threats,
coercion, slander, and alarms and scandals;
(3) Impossible Crimes;
(4) Crimes consummated by mere attempt (e.g. attempt to flee to an
enemy country, treason, corruption of minors);
(5) Felonies by omission;
(6) Crimes committed by mere agreement (e.g. PD 1602, gambling or
betting in sports: “ending,” corruption of public officers).

iv) Factors in determining the stage of felony.

(1) The manner of the commission of the crime;

(2) The elements of the crime;
(3) The nature of the felony itself.

Chapter Three
CONSPIRACY AND PROPOSAL TO COMMIT CRIMES

226 Article 6, supra.

227 Valenzuela v. People, supra.
Conspiracy and Proposal to Commit Crimes

Article 8. Conspiracy and proposal to commit felony. - Conspiracy and

proposal to commit felony are punishable only in the cases in which the law
specially provides a penalty therefor.

A conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it.

There is proposal when the person who has decided to commit a

felony proposes its execution to some other person or persons.

1) Definition.

a) Conspiracy – when two or more persons come to an agreement concerning

the commission of a felony and decide to commit it.

b) Proposal – when the person who has decided to commit a felony proposes
its execution to some other persons.

2) Conspiracy. A conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and decide to commit it.

a) Requisites:

i) Two or more persons came to an agreement;

ii) The agreement concerned the commission of a felony, and
iii) The execution of the felony was decided upon.228

b) Kinds of conspiracy:

i) Conspiracy as a crime; and

ii) Conspiracy as a means to commit a crime.

c) Distinctions between conspiracy as a crime and as a means to commit a

crime.

i) In both cases, there is an agreement to commit a crime.

ii) In conspiracy as a crime, mere agreement is sufficient to be punishable.

228 People v. Fegidero, G.R. No. 113446, August 4, 2000.

 iii) In conspiracy as a means to commit a crime to be punishable, it is
necessary that overt acts to realize the criminal purpose must be
performed by the conspirators.229

d) Conspiracy as a crime.

i) Concept. This refers to conspiracies (or proposals) which the law

specifically punishes. Mere agreement to commit the crime is
punishable. No overt act is necessary for this crime to be committed.

ii) Conspiracies and proposals punishable under the Revised Penal Code:

(1) Conspiracy to commit treason (Art. 115);

(2) Conspiracy to commit rebellion, insurrection, coup d’etat (Art. 136);
(3) Conspiracy to commit sedition (Art. 141);
(4) Proposal to commit treason (Art. 115);
(5) Proposal to commit rebellion, insurrection, or coup d’etat (Art. 136);
(6) Brigandage (Art. 306);
(7) Monopolies and combinations in restraint of trade (Art. 186)

iii) Conspiracies punishable under special laws:

(1) Conspiracy to commit arson (PD 1613);

(2) Conspiracy to commit offense under Sec. 26 of RA 9165 (Dangerous
Drugs Act):

(a) Importation of any dangerous drug and/or controlled precursor

and essential chemical;
(b) Sale, trading, administration, dispensation, delivery, distribution
and transportation of any dangerous drug and/or controlled
precursor and essential chemical;
(c) Maintenance of a den, dive or resort where any dangerous drug
is used in any form;
(d) Manufacture of any dangerous drug and/or controlled precursor
and essential chemical; and
(e) Cultivation or culture of plants which are sources of dangerous
drugs.

(3) Conspiracy to commit terrorism (RA 9372);

(4) Conspiracy to Commit the Crimes of Financing of Terrorism and

229 Gregorio, supra. 45.

 Dealing with Property or Funds of Designated Persons (RA 10168);
(5) Conspiracy under RA 6713 (Code of Conduct and Ethical Standards
for Public Officials and Employees) - refers to private individuals who
conspire with public officials.

iv) Manner of alleging in the information. When conspiracy is charged

as a crime, the act of conspiring and all the elements of said crime
must be set forth in the complaint or information. For example, the
crime of "conspiracy to commit treason" is committed when, in
time of war, two or more persons come to an agreement to levy war
against the Government or to adhere to the enemies and to give
them aid or comfort, and decide to commit it. The elements of this
crime are: (1) that the offender owes allegiance to the Government
of the Philippines; (2) that there is a war in which the Philippines is
involved; (3) that the offender and other person or persons come
to an agreement to: (a) levy war against the government, or (b)
adhere to the enemies, to give them aid and comfort; and (4) that
the offender and other person or persons decide to carry out the
agreement. These elements must be alleged in the information.230

e) Conspiracy as a means to commit a crime.

i) Nature.

(1) Generally, conspiracy is not a crime except when the law specifically
provides a penalty therefor. The crime of conspiracy known to the
common law is not an indictable offense in the Philippines. An
agreement to commit a crime is a reprehensible act from the view-
point of morality, but as long as the conspirators do not perform overt
acts in furtherance of their malevolent design, the sovereignty of the
State is not outraged and the tranquility of the public remains
undisturbed.231

(2) When conspiracy is a means to commit a crime, it is indispensable

that the agreement to commit the crime among all the conspirators,
or their community of criminal design must be alleged and
competently shown.232 The community of design to commit an
offense must be a conscious one.233 Conspiracy must be
established, not by conjecture, but by positive and conclusive

230 Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002.

231 People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
232 Macapagal-Arroyo v. Sandiganbayan, G.R. No. 220598, July 19, 2016.
233 Bahilidad v. People, G.R. No. 185195, March 17, 2010.
 evidence.234

(3) Manner of alleging conspiracy as a means of committing a

crime. The requirements on sufficiency of allegations are
different when conspiracy is not charged as a crime in itself but
only as the mode of committing the crime. A conspiracy
indictment need not, of course, aver all the components of
conspiracy or allege all the details thereof, like the part that
each of the parties therein have performed, the evidence
proving the common design or the facts connecting all the
accused with one another in the web of the conspiracy. Neither
is it necessary to describe conspiracy with the same degree of
particularity required in describing a substantive offense. It is
enough that the indictment contains a statement of facts relied
upon to be constitutive of the offense in ordinary and concise
language, with as much certainty as the nature of the case will
admit, in a manner that can enable a person of common
understanding to know what is intended, and with such
precision that the accused may plead his acquittal or conviction
to a subsequent indictment based on the same facts.235

(4) To ensure that the due process rights of an accused are

observed, every indictment must embody the essential
elements of the crime charged with reasonable particularity as
to the name of the accused, the time and place of commission
of the offense, and the circumstances thereof. One such
particular circumstance is conspiracy where two or more
persons are charged in an information. Conspiracy denotes an
intentional participation in a criminal transaction, with a view to
the furtherance of a common design and purpose. It imputes
criminal liability to an accused for the acts of another or others,
regardless of the nature and extent of his own participation.236

(5) In a conspiracy, the act of one becomes the act of all and the
particular act of an accused becomes of secondary relevance.
Thus, it is essential that an accused must know from the
information whether he is criminally accountable not only for
his acts but also for the acts of his co-accused as well. An
indictment for conspiracy is sufficient if: (1) it follows the words

234 Macapagal-Arroyo v. Sandiganbayan, supra.

235 People v. Quitlong, 292 SCRA 360, 376 [1998].
236 Garcia, v. CA, et al., G.R. No. 124036, October 23, 2001.
 of the statute creating the offense and reasonably informs the
accused of the character of the offense he is charged with
conspiring to commit; or (2) following the statute, contains a
sufficient statement of an overt act to effect the object of the
conspiracy; or (3) alleges both the conspiracy and the
contemplated crime in the language of the respective statutes
defining them.237

(6) The allegations pertaining to conspiracy must be conveyed in

appropriate language.238 The words "conspired,"
"confederated," or the phrase "acting in concert" or "in
conspiracy," or their synonyms or derivatives may be used to
allege conspiracy.

ii) Kinds of conspiracy. In terms of proving its existence, conspiracy takes

two forms:

(1) Express conspiracy. This requires proof of an actual agreement

among all the co-conspirators to commit the crime; Implied
conspiracy.

(2) Implied conspiracy is proved through the mode and manner of the
commission of the offense, or from the acts of the accused before,
during and after the commission of the crime indubitably pointing to
a joint purpose, a concert of action and a community of interest.239

iii) Kinds of conspiracy as to its nature:

(1) Wheel conspiracy. The wheel conspiracy occurs when there is a

single person or group (the hub) dealing individually with two or more
other persons or groups (the spokes). The spoke typically interacts
with the hub rather than with another spoke. In the event that the
spoke shares a common purpose to succeed, there is a single
conspiracy. However, in the instances when each spoke is
unconcerned with the success of the other spokes, there are multiple
conspiracies.240

237 Ibid.
238 Ibid.
239 People v. Del Castillo, G.R. No. 169084, January 18, 2012.
240 Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002; Macapagal-Arroyo v.

Sandiganbayan, supra.
 (a) An illustration of wheel conspiracy wherein there is only one
conspiracy involved was the conspiracy alleged in the information
for plunder filed against former President Estrada and his co-
conspirators. Former President Estrada was the hub while the
spokes were all the other accused individuals. The rim that
enclosed the spokes was the common goal in the overall
conspiracy, i.e., the amassing, accumulation and acquisition of
ill-gotten wealth.241

(b) Another example, the American case of Kotteakos v. United

States illustrates a wheel conspiracy where multiple conspiracies
were established instead of one single conspiracy. There, Simon
Brown, the hub, assisted 31 independent individuals to obtain
separate fraudulent loans from the US Government. Although all
the defendants were engaged in the same type of illegal activity,
there was no common purpose or overall plan among them, and
they were not liable for involvement in a single conspiracy. Each
loan was an end in itself, separate from all others, although all
were alike in having similar illegal objects. Except for Brown, the
common figure, no conspirator was interested in whether any
loan except his own went through. Thus, the US Supreme Court
concluded that there existed 32 separate conspiracies involving
Brown rather than one common conspiracy.242

(2) Chain conspiracy. Chain conspiracy exists when there is successive

communication and cooperation in much the same way as with
legitimate business operations between manufacturer and
wholesaler, then wholesaler and retailer, and then retailer and
consumer.243 This involves individuals linked together in a vertical
chain to achieve a criminal objective.244

(a) Illustrative of chain conspiracy was that involved in United States

v. Bruno,245 of the US Court of Appeals for the Second Circuit.
There, 88 defendants were indicted for a conspiracy to import,
sell, and possess narcotics. This case involved several
smugglers who had brought narcotics to retailers who, in turn,

241 Ibid.
242 328 U.S. 750 (1946).
243 Estrada v. Sandiganbayan, supra.
244 Contemporary Criminal law. Concepts, Cases, and Controversies. Third Ed., Lippman, M. R.,

Sage Publication, California, USA, 2013, p. 195.

245 105 F.2d 921 (2d Cir. 1939).
 had sold the narcotics to operatives in Texas and Louisiana for
distribution to addicts. The US Court of Appeals for the Second
Circuit ruled that what transpired was a single chain conspiracy
in which the smugglers knew that the middlemen must sell to
retailers for distribution to addicts, and the retailers knew that the
middle men must purchase drugs from smugglers. As reasoned
by the court, "the conspirators at one end of the chain knew that
the unlawful business would not and could not, stop with their
buyers; and those at the other end knew that it had not begun
with their sellers." Each conspirator knew that "the success of that
part with which he was immediately concerned was dependent
upon success of the whole." This means, therefore, that "every
member of the conspiracy was liable for every illegal transaction
carried out by other members of the conspiracy in Texas and in
Louisiana.246

iv) Concepts.

(1) Implied conspiracy. While conspiracy to commit a crime must be

established by positive evidence, direct proof is not essential to show
conspiracy. Since by its nature, conspiracy is planned in utmost
secrecy, it can seldom be proved by direct evidence. Consequently,
competent and convincing circumstantial evidence will suffice to
establish conspiracy.247

(2) An implied conspiracy exists when two or more persons are shown
to have aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their combined acts, though
apparently independent, were in fact connected and cooperative,
indicating closeness of personal association and a concurrence of
sentiment.248

(3) In implied conspiracy, overt act is required before one can be held
criminally liable. To be considered a part of the conspiracy, each of
the accused must be shown to have performed at least an overt act
in pursuance or in furtherance of the conspiracy, for without being
shown to do so none of them will be liable as a co-conspirator, and
each may only be held responsible for the results of his own acts.
The act done need not constitute the last proximate one for

246 Supra note 434.

247 People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
248 People v. De Leon, G.R. No. 179943, June 26, 2009.
 completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime. In the words of Viada, the overt
acts must have an immediate and necessary relation to the
offense.249 An overt or external act is defined as some physical
activity or deed, indicating the intention to commit a particular crime,
more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous desistance
of the perpetrator, will logically and necessarily ripen into a concrete
offense.250

(4) The rule is that conspiracy must be shown to exist by direct

or circumstantial evidence, as clearly and convincingly as the crime
itself. In the absence of direct proof thereof, it may be deduced from
the mode, method, and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves
when such acts point to a joint purpose and design, concerted action
and community of interest. Hence, it is necessary that a conspirator
should have performed some overt acts as a direct or indirect
contribution in the execution of the crime planned to be
committed. The overt act may consist of active participation in the
actual commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the commission
of the crime or by exerting moral ascendancy over the other co-
conspirators.251

(5) Thus, the conclusion that former Pres. Arroyo had been the
mastermind of plunder (when she affixed her unqualified "OK" on the
requests for the additional Confidential and Intelligence Funds) was
plainly conjectural and outrightly unfounded considering that the
information did not aver at all that she had been the mastermind;
hence, the Sandigabayan thereby acted capriciously and arbitrarily.
In the second place, the treatment by the Sandiganbayan of her
handwritten unqualified "OK" as an overt act of plunder was
absolutely unwarranted considering that such act was a common
legal and valid practice of signifying approval of a fund release by the
President.252

249 Macapagal-Arroyo v. Sandiganbayan, supra.

250 People v. Lizada, G.R. No. 143468-71, January 24, 2003.
251 Salapuddin v. Court of Appeals, et al., G.R. No. 184681, February 25, 2013.
252 Macapagal-Arroyo v. Sandiganbayan, supra.
 (6) Conspiracy transcends mere companionship, it denotes an
intentional participation in the transaction with a view to the
furtherance of the common design and purpose.253 For conspiracy to
exist, it does not require an agreement for an appreciable period prior
to the occurrence.254 From the legal standpoint, conspiracy exists if,
at the time of the commission of the offense, the accused had
the same purpose and were united in its execution.255

(7) Mere presence of the accused without any participation negates

conspiracy. No conspiracy may be deduced where there is no
evidence to show the participation of accused in the shooting
incident. The lone eyewitness testified that while he was hiding
behind the plants, he saw accused holding a gun and together with
other accused approached the lifeless body of his mother. The mere
presence of accused does not prove his participation in the killing.
The mere fact of being with other accused does not of itself establish
conspiracy.256 The fact that the accused accompanied her
husband at the restaurant and allowed her husband to place the
money inside her bag would not be sufficient to justify the
conclusion that conspiracy existed. In order to hold an accused
liable as co-principal by reason of conspiracy, he or she must
be shown to have performed an overt act in pursuance or in
furtherance of conspiracy.257

(8) To establish conspiracy, conspirator must have performed an

overt act. An overt or external act is defined as some physical
activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if
carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by
the spontaneous desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense. The raison
d'etre for the law requiring a direct overt act is that the conduct
of the accused consisting merely of acts of preparation has
never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes one
which may be said to be a commencement of the commission

253 People v. Alejandro Marquita, et al., G.R. Nos. 119958-62, March 1, 2000.
254 People v. Aquino, G. R. No. 126047, September 16, 1999.
255 People v. Buluran, et al., G.R. No. 113940, February 15, 2000.
256 People v. Sosing, 111 SCRA 368 (1982).
257 Rimando v. People, G.R. No. 229701, November 29, 2017.
 of the crime, or an overt act or before any fragment of the crime
itself has been committed, and this is so for the reason that so
long as the equivocal quality remains, no one can say with
certainty what the intent of the accused is. It is necessary that
the overt act should have been the ultimate step towards the
consummation of the design. It is sufficient if it was the first or
some subsequent step in a direct movement towards the
commission of the offense after the preparations are made. The
act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must
have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and necessary
relation to the offense.258 It is necessary that a conspirator
should have performed some overt act as a direct or indirect
contribution to the execution of the crime committed. The overt
act may consist of active participation in the actual commission
of the crime itself, or it may consist of moral assistance to his
co-conspirators by being present at the commission of the
crime or by exerting moral ascendancy over the other co-
conspirators. Hence, the mere presence of an accused at the
discussion of a conspiracy, even approval of it, without any
active participation in the same, is not enough for purposes of
conviction.259

(9) The overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the
commission of the crime or by exerting moral ascendancy over
the other co-conspirators.260

(10) Mere knowledge, acquiescence or approval of the act, without

the cooperation or approval to cooperate, is not sufficient to prove
conspiracy.261 Even if the accused were present and agreed to
cooperate with the main perpetrators of the crime, their mere
presence does not make them parties to it, absent any active
participation in the furtherance of the common design or
purpose. Likewise, where the only act attributable to the other
accused is an apparent readiness to provide assistance, but
with no certainty as to its ripening into an overt act, there is no

258 People v. Lizada, G.R. Nos. 143468-71, January 24, 2003.

259 Bahilidad v. PeopIe, G.R. No. 185195, March 17, 2010.
260 People v. Listerio, G.R. No. 122099, July 5, 2000.
261 People v. Huang Zhen Hua, G.R. No. 139301, September 29, 2004.
 conspiracy.262 While accused presence and act of pointing at
the victim and his group may mean he approved of the crime or
that he was ready to assist his co-accused, absent any other
overt act on his part, there is no conspiracy.263

(11) Relationship, association and companionship do not prove

conspiracy.264 To establish conspiracy, evidence of actual
cooperation, rather than mere cognizance or approval of an illegal
act is required.265

(12) No conspiracy exists when there was no misunderstanding between

the two groups prior to the stabbing incident; he stabbing incident
appears to have arisen from a purely accidental encounter; and the
accused was unarmed during the incident, thus, negating his intent
to kill the victims.266

(13) Simultaneousness does not of itself demonstrate the concurrence of

will nor the unity of action and purpose which are the basis of the
responsibility of two or more individuals. To establish common
responsibility it is not sufficient that the attack be joint and
simultaneous; it is necessary that the assailants be animated by one
and the same purpose.267

(14) Conspiracy has not been shown beyond reasonable doubt to hold all
six accused as co-principals in the crime of murder if the stabbing
happened in the "spur of the moment." Conspiracy means, however,
an agreement concerning the commission of a felony and a decision
to commit it. If the tragedy was a chance stabbing, there can be no
conspiracy to speak of.268

(15) Proof of the conspiracy need not be based on direct evidence,

because it may be inferred from the parties’ conduct indicating a
common understanding among themselves with respect to the
commission of the crime. Neither is it necessary to show that two or
more persons met together and entered into an explicit agreement

262 People v. Mandao, G.R. No. 135048, December 3, 2002.

263 People v. Jesalva, G.R. No. 227306, June 19, 2017.
264 People v. Manijas, G.R. No. 148699, November 15, 2002.
265 People v. Salapuddin, supra.at 436.
266 Quidet v. People, G.R. No. 170289, April 8, 2010.
267 People v. Vestido, G.R. No. L-31582, October 26, 1977.
268 People v. Agapinay, et al., G.R. No. 77776, June 27, 1990.
 setting out the details of an unlawful scheme or objective to be carried
out. The conspiracy may be deduced from the mode or manner in
which the crime was perpetrated; it may also be inferred from the
acts of the accused evincing a joint or common purpose and design,
concerted action and community of interest.269

(16) Albeit no formal agreement is necessary to prove conspiracy and the

same way be inferred from the circumstances attending the
commission of the crime, yet conspiracy must be established by the
same quantum of evidence as any other ingredient of the offense.
Such evidence must show intentional participation in the transaction
with a view to the furtherance of the common design or purpose. The
same degree of proof necessary to establish the crime is required to
establish a finding of criminal conspiracy, that is, proof beyond
reasonable doubt. It cannot be established by conjectures but by
positive and conclusive evidence.270

(17) Conspiracy must be proven on the same quantum of evidence as the

felony subject of the agreement of the parties. Conspiracy may be
proved by direct or circumstantial evidence consisting of acts, words,
or conduct of the alleged conspirators before, during and after the
commission of the felony to achieve a common design or purpose.
To be a conspirator, one need not participate in every detail of the
execution; he need not even take part in every act or need not even
know the exact part to be performed by the others in the execution of
the conspiracy.271

(18) In conspiracy, each member of the group performed specific and

coordinated acts as to indicate beyond doubt a common criminal
design or purpose. Even assuming arguendo that the prosecution
eyewitness may have been unclear as to who delivered the fatal blow
on the victim, accused-appellant as a conspirator is equally liable for
the crime as it is unnecessary to determine who inflicted the fatal
wound because in conspiracy, the act of one is the act of all.272

(19) Collective Liability. Once an express or implied conspiracy is

proved, all of the conspirators are liable as co-principals regardless
of the extent and character of their respective active participation in

269 People v. Fegidero, supra.

270 People v. Furugganan, 193 SCRA 471.
271 People v. Seraspe, G.R. No. 180919, January 9, 2013.
272 People v. Listerio, G.R. No. 122099, July 5, 2000.
 the commission of the crime or crimes perpetrated in furtherance of
the conspiracy because in contemplation of law the act of one is the
act of all.273 The concerted action of the conspirators in
consummating their common purpose is a patent display of their evil
partnership, and for the consequences of such criminal enterprise
they must be held solidarity liable.274

(20) The foregoing rule is anchored on the sound principle that

"when two or more persons unite to accomplish a criminal object,
whether through the physical volition of one, or all, proceeding
severally or collectively, each individual whose evil will actively
contributes to the wrong-doing is in law responsible for the whole,
the same as though performed by himself alone.275

(21) The moment it is established that the malefactors conspired

and confederated in the commission of the felony proved, collective
liability of the accused conspirators attaches by reason of the
conspiracy, and the court shall not speculate nor even investigate as
to the actual degree of participation of each of the perpetrators
present at the scene of the crime. Of course, as to any conspirator
who was remote from the situs of aggression, he could be drawn
within the enveloping ambit of the conspiracy if it be proved that
through his moral ascendancy over the rest of the conspirators the
latter were moved or impelled to carry out the conspiracy.276

(22) In fine, the convergence of the wills of the conspirators in the

scheming and execution of the crime amply justifies the imputation
to all of them the act of any one of them. It is in this light that
conspiracy is generally viewed not as a separate indictable offense,
but a rule for collectivizing criminal liability.277

273 U.S. v. Ramos, 2 Phil. 434.

274 People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
275 People vs. Bannaisan, 49 Phil. 423.
276 People v. Peralta, et al., supra.
277 Ibid.
 Chapter Four
JUSTIFYING CIRCUMSTANCES

Justifying Circumstances
Article 11. Justifying circumstances. - 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;

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or
repel it.
Third. Lack of sufficient provocation on the part of the person
defending himself.

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

3) Anyone who acts in defense of the person or rights of a stranger,

provided that the first and second requisites mentioned in the first
circumstance of this Article are present and that the person defending
be not induced by revenge, resentment, or other evil motive.

4) Any person who, in order to avoid an evil or injury, does not 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.

1) Nature. Those acts of the actor are in accordance with law and, hence, he
incurs no criminal and civil liability. Since the act is in accordance with law,
there is no criminal liability incurred by the actor nor any civil liability because
the crime as the source of obligation is not present.278

a) The following are the justifying circumstances:

i) Self-defense;
ii) Defense of relative;
iii) Defense of stranger;
iv) State of necessity;
v) Fulfillment of duty;
vi) Obedience to superior order.

2) Self-defense.

a) Nature.

278 Gregorio, supra.

 i) Self-defense includes not only the defense of the person or body of the
one assaulted but also that of these rights, i.e. right to property and right
to honor.

ii) An accused who pleads a justifying circumstance under Article 11

of the Revised Penal Code admits to the commission of acts, which
would otherwise engender criminal liability. However, he asserts
that he is justified in committing the acts. In the process of proving
a justifying circumstance, the accused risks admitting the imputed
acts, which may justify the existence of an offense were it not for
the exculpating facts. Conviction follows if the evidence for the
accused fails to prove the existence of justifying circumstances.279

iii) The burden of proof is on the accused when he admits committing the
crime. The burden is shifted to him and he must prove clearly and
convincingly the elements of self-defense.280

iv) When the accused’s defense is self-defense he thereby admits being

the author of the death of the victim, that it becomes incumbent upon
him to prove the justifying circumstance to the satisfaction of the court.
The rationale for the shifting of the burden of evidence is that the
accused, by his admission, is to be held criminally liable unless he
satisfactorily establishes the fact of self-defense. But the burden to prove
guilt beyond reasonable doubt is not thereby lifted from the shoulders of
the State, which carries it until the end of the proceedings. In other
words, only the onus probandi shifts to the accused, for self-defense is
an affirmative allegation that must be established with certainty by
sufficient and satisfactory proof. He must now discharge the burden by
relying on the strength of his own evidence, not on the weakness of that
of the Prosecution, considering that the Prosecution’s evidence, even if
weak, cannot be disbelieved in view of his admission of the killing. 281

b) Requisites: To escape liability, the accused must show by sufficient,

satisfactory and convincing evidence that:

i) the victim committed unlawful aggression amounting to an actual

or imminent threat to the life and limb of the accused claiming self-
defense;

279 Velasquez, et al. v. People, G.R. No. 195021, March 15, 2017.
280 People v. Mondigo, G.R. No. 167954, January 31, 2008.
281 People v. Del Castillo, G.R. No. 169084, January 18, 2012.
 ii) there was reasonable necessity in the means employed to prevent
or repel the unlawful aggression; and

iii) there was lack of sufficient provocation on the part of the accused
claiming self-defense or at least any provocation executed by the
accused claiming self-defense was not the proximate and
immediate cause of the victim’s aggression.282

c) Unlawful aggression.

i) Unlawful aggression is defined as an actual physical assault, or at least

a threat to inflict real imminent injury, upon a person. In case of threat, it
must be offensive and strong, positively showing the wrongful intent to
cause injury. It presupposes actual, sudden, unexpected or imminent
danger not merely threatening and intimidating action. It is present only
when the one attacked faces real and immediate threat to one’s life.283

ii) Unlawful aggression on the part of the victim is the primordial element
of the justifying circumstance of self-defense. Without unlawful
aggression, there can be no justified killing in defense of oneself.284

iii) The test for the presence of unlawful aggression under the
circumstances is whether the aggression from the victim put in real peril
the life or personal safety of the person defending himself; the peril must
not be an imagined or imaginary threat. 285

iv) The accused must establish the concurrence of three elements of

unlawful aggression, namely: (a) there must be a physical or material
attack or assault; (b) the attack or assault must be actual, or, at least,
imminent; and (c) the attack or assault must be unlawful.286

v) Unlawful aggression is of two kinds:

(1) Actual or material unlawful aggression. Actual or material unlawful

aggression means an attack with physical force or with a weapon, an
offensive act that positively determines the intent of the aggressor to
cause the injury. There is an unlawful aggression on the part of

282 People v. Nugas, G.R. No. 172606, 23 November 2011.

283 People v. Gabrino, G.R. No. 192581, November 17, 2010.
284 People v. Nugas, supra.
285 Ibid.
286 Ibid.
 the victim when he puts the life, limb, or right of the person
invoking self-defense in actual or imminent danger. There must
be actual physical force or actual use of a weapon. It is present
only when the one attacked faces real and immediate threat to
his life. It must be continuous, otherwise, it does not constitute
aggression warranting self-defense.287; and

(2) Imminent unlawful aggression. Imminent unlawful aggression means

an attack that is impending or at the point of happening; it must not
consist in a mere threatening attitude, nor must it be merely
imaginary, but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and making
a motion as if to attack). Imminent unlawful aggression must not be
a mere threatening attitude of the victim, such as pressing his right
hand to his hip where a revolver was holstered, accompanied by an
angry countenance, or like aiming to throw a pot.288 A mere
threatening or intimidating attitude is not sufficient.289 Likewise,
the exchange of insulting words and invectives between the
victim and the accused, no matter how objectionable, could not
be considered as unlawful aggression, except when coupled
with physical assault.290

vi) Test. The test for the presence of unlawful aggression under the
circumstances is whether the aggression from the victim put in real
peril the life or personal safety of the person defending himself; the
peril must not be an imagined or imaginary threat.291

vii) Concepts.

(1) The most important of all is the element of unlawful aggression.

Unlawful aggression is an actual physical assault, or at least a
threat to inflict real imminent injury, upon a person. The element
of unlawful aggression must be proven first in order for self-
defense to be successfully pleaded. There can be no self-
defense, whether complete or incomplete, unless the victim had
committed unlawful aggression against the person who

287 People v. Camilla, Jr., 620 Phil. 775, 796 (2009).

288 Ibid.
289 People v. Pasco, Jr., 137 SCRA 137 (1985).
290 People v. Tangan, et al., G.R. No. 103613, February 23, 2001.
291 Sombilon v. People, G.R. No. 177246, September 25, 2017.
 resorted to self-defense.292

(2) Unlawful aggression is a condition sine qua non for the

justifying circumstance of self-defense. It contemplates an
actual, sudden and unexpected attack, or imminent danger
thereof, and not merely a threatening or intimidating attitude.
The person defending himself must have been attacked with
actual physical force or with actual use of weapon.293 Of all the
elements, unlawful aggression, i.e., the sudden unprovoked
attack on the person defending himself, is indispensable.294 At
the heart of the claim of self-defense is the presence of an
unlawful aggression committed against appellant. Without
unlawful aggression, self-defense will not have a leg to stand
on and this justifying circumstance cannot and will not be
appreciated, even if the other elements are present. Unlawful
aggression refers to an attack amounting to actual or imminent
threat to the life and limb of the person claiming self-defense.295

(3) Unlawful aggression presupposes actual, sudden, unexpected

or imminent danger — not merely threatening and intimidating
action. Uncertain, premature and speculative was the assertion
of accused that the victim was about to stab him, when the latter
had merely drawn out his knife. There is aggression, only when
the one attacked faces real and immediate threat to one's
life. The peril sought to be avoided must be imminent and
actual, not just speculative.296

(4) Mere drawing of a knife by the victim does not constitute

unlawful aggression, whether actual or imminent, as the peril
sought to be avoided by the accused was both premature and
speculative. Accused claims that there was unlawful
aggression on the part of the victim when the latter
unceremoniously boxed him on the forehead in the heat of their
argument. He adds that he had initially thought of hitting back
when he noticed that the victim was pulling out a kitchen knife.
Hence, to save his life, the former grabbed the weapon and used

292 People v. Macaraig, G.R. No. 219848, June 7, 2017 citing Guevarra, et al. v. People, G.R.
No. 170462, February 5, 2014.
293 Tangaiin v. Bonifacio, G.R. No. 133799, February 5, 2002.
294 People v. Iglesia, G.R. No. 132354, September 13, 2001.
295 People v. Caratao, 451 Phil. 588 (2003).
296 People v. Raytos, G.R. No. 225623, June 7, 2017 citing People v. Escarlos, 457 Phil. 580

(2003).
 it to stab the latter. Accused insists that under the
circumstances, he was legally justified in using the knife to
ward off the unlawful aggression. For him to wait for the knife
to be raised and to fall on him before acting to defend himself
would be asking too much, he argues. While the victim may be
said to have initiated the confrontation, we do not subscribe to
the view that the former was subjected to an unlawful
aggression within the legal meaning of the phrase. The alleged
assault did not come as a surprise, as it was preceded by a
heated exchange of words between the two parties who had a
history of animosity. Moreover, the alleged drawing of a knife
by the victim could not have placed the life of accused in
imminent danger. The former might have done it only to
threaten or intimidate the latter.297

(5) Assuming that the victim had a gun and pulled it, however, he
did not manifest any aggressive act which may have imperiled
the life and limb of the accused. It is axiomatic that the mere
thrusting of one’s hand into his pocket as if for the purpose of
drawing a weapon is not unlawful aggression. Even the cocking
of a rifle without aiming the firearm at any particular target is
not sufficient to conclude that one’s life was in imminent
danger. Hence, a threat, even if made with a weapon, or the
belief that a person was about to be attacked, is not sufficient.
It is necessary that the intent be ostensibly revealed by an act
of aggression or by some external acts showing the
commencement of actual and material unlawful aggression.298

(6) A primordial requisite for self-defense is unlawful aggression.

For unlawful aggression to be present, there must be real
danger to life or personal safety. For this reason, a mere push
or a shove, not followed by other acts, has been held
insufficient to constitute unlawful aggression. A playful kick —
the lower court rejected defendant's claim that it was a "vicious
kick" — at the foot my way of greeting between friends may be
a practical joke, and may even hurt; but it is not a serious or real
attack on a person's safety. Such kick was only a mere slight
provocation.299

297 Ibid.
298 People v. Rubiso, G.R. No. 128871, March 18, 2008.
299 People v. Sabio, G.R. No. L-23734, April 27, 1967.
 (7) The rule consistently adhered to in this jurisdiction is that when
the accused’s defense is self-defense he thereby admits being
the author of the death of the victim, that it becomes incumbent
upon him to prove the justifying circumstance to the
satisfaction of the court. The rationale for the shifting of the
burden of evidence is that the accused, by his admission, is to
be held criminally liable unless he satisfactorily establishes the
fact of self-defense. But the burden to prove guilt beyond
reasonable doubt is not thereby lifted from the shoulders of the
State, which carries it until the end of the proceedings. In other
words, only the onus probandi shifts to the accused, for self-
defense is an affirmative allegation that must be established
with certainty by sufficient and satisfactory proof. He must now
discharge the burden by relying on the strength of his own
evidence, not on the weakness of that of the Prosecution,
considering that the Prosecution’s evidence, even if weak,
cannot be disbelieved in view of his admission of the killing.300

(8) In determining the existence of unlawful aggression, it does not

matter if the attacks have no predictable success; that,
moreover, it is not necessary for accused to be wounded first
to prove the existence of unlawful aggression, it being sufficient
that the aggression be attempted so as to give rise to the right
to prevent it.301

(9) It is an oft repeated rule that the presence of a large number of

wounds, their location and their seriousness would negate self-
defense. Instead, they indicate a determined effort to kill. In a
case, the victim suffered seven hack wounds, all of which were
deemed fatal by the medico-legal officer. The gravity of these
hack wounds negates the claim of self-defense.302

(10) There can be no self-defense, complete or incomplete

unless there is clear and convincing proof of unlawful
aggression on the part of the victim. The unlawful aggression,
a constitutive element of self-defense, must be real or at least
imminent and not merely imaginary. A belief that a person is
about to be attacked is not sufficient. Even an intimidating or
threatening attitude is by no means enough. Unlawful

300 People v. Del Castillo, G.R. No. 169084, January 18, 2012.
301
People v. Batungbacal, 37 Phil. 382; People v. Hitosis, 55 Phil. 298.
302 People v. Quening, G.R. No. 132167, January 8, 2002.
 aggression presupposes an actual or imminent danger on the
life or limb of a person. Mere shouting, and intimidating or
threatening attitude of the victim does not constitute unlawful
aggression. Unlawful aggression refers to an attack that has
actually broken out or materialized or at the very least is clearly
imminent; it cannot consist in oral threats or merely a
threatening stance or posture.303

d) Reasonable necessity of the means employed.

i) The requisite of reasonable necessity of the means employed is met if

the person invoking self-defense used a weapon or a manner equivalent
to the means of attack used by the aggressor. The reasonable necessity
of the self-defense utilized by an accused is to defend himself "depends
upon the nature or quality of the weapon, the physical condition, the
character, the size and other circumstances of the aggressor; as well as
those of the person who invokes self-defense; and also the place and
the occasion of the assault.304

ii) The second requisite - reasonable necessity of the means

employed to prevent or repel the aggression - requires a
reasonable proportionality between the unlawful aggression and
the defensive response: "the means employed by the person
invoking self-defense contemplates a rational equivalence
between the means of attack and the defense."305

iii) Reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the
law requires is rational equivalence, in the consideration of which will
enter as principal factors the emergency, the imminent danger to which
the person attacked is exposed, the instinct, more than the reason, that
moves or impels the defense, and the proportionateness thereof does
not depend upon the harm done, but rests upon the imminent danger of
such injury.306

iv) Reasonable necessity does not mean absolute necessity. It must be

assumed that one who is assaulted cannot have sufficient tranquility of
mind to think, calculate and make comparisons which can easily be
made in the calmness of the home. It is not the indispensable need but

303 Quintos v. People, G.R. No. 205298, September 10, 2014.

304 Nacnac v. People, G.R. No. 191913, March 21, 2012.
305 People v. Obordo, 431 Phil. 691 (2002).
306 People v. Encomienda, 46 SCRA 522.
 the rational necessity which the law requires. In each particular case, it
is necessary to judge the relative necessity, whether more or less
imperative, in accordance with the rules of rational logic. The defendant
may be given the benefit of any reasonable doubt as to whether he
employed rational means to repel the aggression.307

v) The means employed by the person invoking self-defense is reasonable

if equivalent to the means of attack used by the original aggressor.
Whether or not the means of self-defense is reasonable depends upon
the nature or quality of the weapon; the physical condition, the character,
the size and other circumstances of the aggressor; as well as those of
the person who invokes self-defense, and also the place and the
occasion of the assault.308

vi) The means employed by the person invoking self-defense contemplates

a rational equivalence between the means of attack and the defense.309

vii) The law on self-defense embodied in any penal system in the civilized
world finds justification in man's natural instinct to protect, repel and save
his person or rights from impending danger or peril; it is based on that
impulse of self-preservation born to man and part of his nature as a
human being.310

viii)If the person attacked is a police officer, the degree of reasonableness

of means is different. A police officer, in the performance of his duty,
must stand his ground and cannot, like a private individual, take refuge
in flight; his duty requires him to overcome his opponent. The force
which he may exert therefore differs somewhat from that which may
ordinarily be offered in self-defense. Bearing this in mind, we do not think
that the appellant in using his revolver against the deceased can be said
to have employed unnecessary force. The deceased attacked him with
a deadly weapon; he might, perhaps, have saved himself by running
away, but this his duty forbade. Was he to allow himself to be stabbed
before using his arms? It may, perhaps, be argued that the appellant
might have used his club, but a policeman's club is not a very effective
weapon as against a drawn knife and a police officer is not required to
afford a person attacking him the opportunity for a fair and equal
struggle.311

307 Jayme v. People, G.R. No. 124506, September 9, 1999.

308 People v. Catbagan, 467 Phil. 1044, 1074 (2004).
309 Dela Cruz v. People, G.R. No. 189405, November 19, 2014.
310 People v. Boholst-Caballero, 158 Phil. 827 (1974).
311 U.S. v. Mojica, 42 Phil. 784 (1922).
 ix) The state of mind of the accused during an alleged act of self-
defense, defense of a relative, or defense of a stranger must be
considered in determining whether his or her means of repelling an
aggressor were reasonable. The reasonable necessity of the
means employed in the defense, according to the jurisprudence of
courts, does not de[p]end upon the harm done, but rests upon the
imminent danger of such injury. Although the offended party was
drunk, and therefore, was not able to land his blows, his attacks
were incessant. He had already attacked three (3) other persons—
two (2) minors as well as petitioner's common-law wife—and was
still belligerent. While it may be true that Pamela, Pia, and Yuki had
already gone inside the house at the time of the stabbing, it then
appeared to the accused that there was no other reasonable means
to protect his family except to commit the acts alleged. It is
unreasonable for courts to demand conduct that could only have
been discovered with hindsight and absent the stress caused by
the threats that the petitioner actually faced.312

e) Lack of sufficient provocation.

i) Sufficient provocation is any unjust or improper conduct or act of the

victim adequate enough to excite a person to commit a wrong, which is
accordingly proportionate in gravity.313

ii) This requisite of self-defense is present: (1) when no provocation at all

was given to the aggressor; (2) when, even if provocation was given, it
was not sufficient; (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.314

iii) When the law speaks of provocation either as a mitigating circumstance

or as an essential element of self-defense, it requires that the same be
sufficient or proportionate to the act committed and that it be adequate
to arouse one to its commission. It is not enough that the provocative
act be unreasonable or annoying.315

312 Mariano v. People, G.R. No. 224102, July 26, 2017.

313 People v. Cajurao, G.R. No. 122767, January 20, 2004.
314 Cano v. People, G.R. No. 155258, October 7, 2003.
315 Ibid.
 iv) The third requisite requires the person mounting a defense to be
reasonably blameless. He or she must not have antagonized or incited
the attacker into launching an assault. This also requires a consideration
of proportionality. Provocation is sufficient when it is proportionate to
the aggression, that is, adequate enough to impel one to attack the
person claiming self-defense.316

v) The word "sufficient" means adequate to excite a person to commit

a wrong and must accordingly be proportionate to its gravity. 317

vi) There is sufficient provocation on the part of the accused when he

repeatedly blocked the path of the victims for almost five times. He
was in effect the one who provoked the former.318

vii) The repeated blowing of horns, assuming it was done by the victim,
may be irritating to an impatient driver but it certainly could not be
considered as creating so powerful an inducement as to incite
provocation for the other party to act violently.319

f) Self-defense of chastity. To be entitled to a complete self-defense of

chastity, there must be an attempt to rape.320 It is not necessary that the
actual act be committed. It is enough that mere imminence thereof will justify
the woman to kill the offender when she has no other means to defend
herself.321

g) Self-defense in libel. When a person is libeled, he may hit back with another
libel, which, if adequate, will be justified. Once the aspersion is cast, its sting
clings and the one thus defamed may avail himself of all necessary means
to shake it off.322

h) Self-defense of property. In self-defense of property, it is necessary that

there must be an attack on the property coupled with an attack on the
person entrusted with the property.323 However, the act of fencing of the
property even if not coupled with an attack against the accused is already

316 Velasquez, et al. v. People, G.R. No. 195021, March 15, 2017.
317 People v. CA, G.R. No. 103613, February 23, 2001 citing People v. Naboro, 73 Phil. 434.
318 People v. Tangan, supra.
319 Ibid.

320 People v. Jaurigue, 76 Phil. 174.

321 People v. Dela Cruz, 61 Phil. 344.
322 People v. Chua Hong, 51 OG 1932.
323 People v. Apolinar, 38 O.G. 2879.
 an aggression. The actuation of deceased in angrily ordering the
continuance of the fencing would have resulted in the further chiselling of
the walls of appellant's house as well as the closure of the access to and
from his house and rice mill-which were not only imminent but were actually
in progress. There is no question, therefore, that there was aggression on
the part of the victims: Fleischer was ordering, and Rubia was actually
participating in the fencing. This was indeed aggression, not on the person
of appellant, but on his property rights.324

3) Defense of Relative.

a) Requisites:

i) Unlawful aggression;
ii) Reasonable necessity of the means employed to repel or prevent it; and
iii) In case provocation was given by the person attacked, the person
making the defense had no part in the provocation.

b) Relatives covered:

i) Spouses;
ii) Ascendants;
iii) Descendants;
iv) Legitimate, natural, or adopted brothers or sisters;
v) Relatives by affinity of the same degree and those by consanguinity
within the fourth civil degree.

c) Concepts.

i) Mere honest belief on the part of the person defending that the relative
being defended was a victim of unlawful aggression is enough.325

ii) Relatives not included in the enumeration are considered as strangers.

4) Defense of Stranger.

a) Requisites:

i) Unlawful aggression;
ii) Reasonable necessity of the means employed to repel or prevent it; and

324 People v. Narvaez, G.R. No. L-33466-67, April 30, 1983.

325 Gregorio, supra. pp. 65.
 iii) Person defending be not induced by revenge, resentment or other evil
motives.326

b) Concepts.

i) There is no defense of stranger where the accused stabbed the

deceased when he was already lying on the ground with a stab
wound.327

5) Avoidance of greater evil or injury (State of Necessity).

a) Requisites:

i) The evil sought to be avoided actually exists;

ii) The injury feared be greater than that done to avoid it;
iii) There be no other practical and less harmful means of preventing it.

b) Concepts.

i) A state of necessity exists when there is a clash between unequal rights,

the lesser right giving way to the greater right. Aside from the 3
requisites stated in the law, it should also be added that the necessity
must not be due to the negligence or violation of any law by the actor.

ii) The person for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which may have been
received. This is the only justifying circumstance which provides for the
payment of civil indemnity. Under the other justifying circumstances, no
civil liability attaches. The courts shall determine, in their sound
discretion, the proportionate amount for which law one is liable.

iii) Under paragraph 4, Article 11 of the Revised Penal Code, infliction of

damage or injury to another so that a greater evil or injury may not befall
one’s self may be justified only if it is taken as a last resort and with the
least possible prejudice to another. If there is another way to avoid the
injury without causing damage or injury to another or, if there is no such
other way but the damage to another may be minimized while avoiding
an evil or injury to one’s self, then such course should be taken.328

326 Paera v. People, G.R. No. 181626, May 30, 2011.

327 Gregorio, supra.
328 People v. Punzalan, G.R. No. 199982, December 10, 2012.
6) Fulfilment of duty.

a) Requisites:

i) The accused acted in the performance of a duty or in the lawful exercise

of a right or office;
ii) The injury caused or the offense committed is the necessary
consequence of the due performance of duty or the lawful exercise of
such right or office.329

b) Concepts.

i) A person incurs no criminal liability when he acts in the fulfillment of a

duty or in the lawful exercise of a right or office.330

ii) A policeman in the performance of duty is justified in using such force

as is reasonably necessary to secure and detain the offender, overcome
his resistance, prevent his escape, recapture him if he escapes, and
protect himself from bodily harm.331 In case injury or death results from
the policeman’s exercise of such force, the policeman could be justified
in inflicting the injury or causing the death of the offender if the policeman
had used necessary force. Since a policeman’s duty requires him to
overcome the offender, the force exerted by the policeman may
therefore differ from that which ordinarily may be offered in self-
defense.332 However, a policeman is never justified in using
unnecessary force or in treating the offender with wanton violence, or in
resorting to dangerous means when the arrest could be affected
otherwise.333

iii) Distinguished from self-defense. Unlike in self-defense where unlawful

aggression is an element, in performance of duty, unlawful aggression
from the victim is not a requisite. In People v. Delima,334 a policeman
was looking for a fugitive who had several days earlier escaped from
prison. When the policeman found the fugitive, the fugitive was armed
with a pointed piece of bamboo in the shape of a lance. The policeman
demanded the surrender of the fugitive. The fugitive lunged at the

329 People v. Oanis, et al., G.R. No. L-47722, July 27, 1943.
330 Ibid.
331 Ibid.
332 RAMON C. AQUINO AND CAROLINA C. GRIO-AQUINO, THE REVISED PENAL CODE,

1997 ED., VOL. I, p. 205, citing United States v. Mojica, 42 Phil. 784 (1922).
333 Gregorio, supra. note 202.
334 46 Phil. 738 (1922).
 policeman with his bamboo lance. The policeman dodged the lance and
fired his revolver at the fugitive. The policeman missed. The fugitive ran
away still holding the bamboo lance. The policeman pursued the fugitive
and again fired his revolver, hitting and killing the fugitive. The Court
acquitted the policeman on the ground that the killing was done in the
fulfillment of duty.

iv) The fugitive’s unlawful aggression in People v. Delima had already

ceased when the policeman killed him. The fugitive was running away
from the policeman when he was shot. If the policeman were a private
person, not in the performance of duty, there would be no self-defense
because there would be no unlawful aggression on the part of the
deceased.335 It may even appear that the public officer acting in the
fulfillment of duty is the aggressor, but his aggression is not unlawful, it
being necessary to fulfill his duty.336

v) In People v. Lagata, a jail guard shot to death a prisoner whom he

thought was attempting to escape. The Court convicted the jail guard of
homicide because the facts showed that the prisoner was not at all trying
to escape. The Court declared that the jail guard could only fire at the
prisoner in self-defense or if absolutely necessary to avoid the prisoners
escape.337

vi) There is no justifying circumstance of fulfilment of duty when the

accused confronted the victim at the entrance to investigate the reason
why the latter had a gun tucked behind his waist in a public place but
perhaps through anxiety, edginess or the desire to take no chances, he
exceeded his duty by firing upon the victim who was not at all resisting.
The shooting of the latter cannot be considered due performance of a
duty if at that time he posed no serious threat or harm to the accused or
to the civilians in the pub.338

7) Obedience to a lawful order.

a) Requisites:

i) An order has been issued by a superior;

ii) The order is for a legal purpose; and

335 LUIS B. REYES, THE REVISED PENAL CODE, 15th ED., 2001, BOOK ONE, p. 202.
336 Ibid.
337 83 Phil. 150 (1949).
338 Baxinela v. People, G.R. No. 149652, March 14, 1006.
 iii) The means to be used to carry out said order is lawful. 339

b) Concepts.

i) The order and means to be used must be both lawful. While the order
for Adalim’s transfer emanated from petitioner Ambil, Jr., who was then
Governor, neither said order nor the means employed by petitioner
Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial
Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor
Adalim at the provincial jail and, unarmed with a court order, transported
him to the house of petitioner Ambil, Jr. Apelado cannot avail of the
justifying circumstance under Article 11, par.6 of the RPC.340

ii) Even if the order is illegal if it is patently legal and the subordinate was
not aware of its illegality, he is not liable.341

iii) Acquitted for the crime of malversation, the Court stated that the
accused could not be faulted if he had to obey and strictly comply with
the presidential directive, and to argue otherwise is something easier
said than done. Marcos was undeniably Tabuenas superior the former
being then the President of the Republic who unquestionably exercised
control over government agencies such as the MIAA and PNCC. And
as a recipient of such kind of a directive coming from the highest official
of the land no less, good faith should be read on Tabuena’s compliance,
without hesitation nor any question, with the MARCOS Memorandum.
Tabuena therefore is entitled to the justifying circumstance of obedience
to superior order. What is more significant to consider is that the
MARCOS Memorandum is patently legal (for on its face it directs
payment of an outstanding liability) and that Tabuena acted under the
honest belief that the P55 million was a due and demandable debt and
that it was just a portion of a bigger liability to PNCC.342

8) Battered Woman Syndrome (R.A. No. 9262).

a) Concept and basis.

i) Battered Woman Syndrome refers to a scientifically defined pattern of

psychological and behavioral symptoms found in women living in

339 Ambil, Jr. v. Sandiganbayan, G.R. No. 175457, July 6, 2011.

340 Ibid.
341 Nassif v. People, 78 Phil. 67.
342 Tabuena v. Sandiganbayan, G.R. No. 03501-03. February 17, 1997.
 battering relationships as a result of cumulative abuse.

ii) Victim-survivors who are found by the courts to be suffering from

battered woman syndrome do not incur any criminal and civil liability
notwithstanding the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code343

iii) Women suffering from battered woman syndrome do not incur any
criminal and civil liability notwithstanding the absence of any of the
elements for justifying circumstances of self-defense under the Code.

b) Cycle of violence.

i) The tension-building phase. It consists of minor battering, verbal,

physical abuse or other form of hostile behavior. Here, the woman tries
to pacify the batterer but this passive behavior legitimizes her belief that
the man has the right to abuse her.

ii) Acute-battering phase. This is characterized by brutality,

destructiveness, or sometimes death. The wife has a sense of
detachment from the attack and terrible pain. Acute battering incidents
which are often savage and out of control.

iii) Tranquil (loving) phase. This phase begins when the acute battering
incident ends. The couple experience profound relief. The batterer may
show a tender and nurturing behaviour towards his partner. The illusion
of absolute interdependency is well-entrenched in a battered woman’s
psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant behavior, he for her
forgiveness.344

c) In order to be classified as a battered woman, the couple must go through

the battering cycle at least twice. Any woman may find herself in an abusive
relationship with a man once. If it occurs a second time, and she remains in
the situation, she is defined as a battered woman.345

i) Battered women exhibit common personality traits, such as low self-

esteem, traditional beliefs about the home, the family and the female sex
role; emotional dependence upon the dominant male; the tendency to

343 Section 26, RA 9262.

344 People v. Genosa, G.R. No. 135982, January 15, 2004.
345 Ibid.
 accept responsibility for the batterer’s actions; and false hopes that the
relationship will improve.346

Chapter Five
EXEMPTING CIRCUMSTANCES

Exempting Circumstances

Article 12. Circumstances which exempt from criminal liability. - the

following are exempt from criminal liability:

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

a lucid interval.

When the imbecile or an insane person has committed an act which

the law defines as a felony (delito), the court shall order his
confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave without
first obtaining the permission of the same court.

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 Art. 80 of this Code.

When such minor is adjudged to be criminally irresponsible, the court,

in conformably with the provisions of this and the preceding
paragraph, shall commit him to the care and custody of his family who

346 Ibid.
 shall be charged with his surveillance and education otherwise, he
shall be committed to the care of some institution or person
mentioned in said Art. 80.

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.

5. Any person who act under the compulsion of irresistible force.

6. Any person who acts under the impulse of an uncontrollable fear of

an equal or greater injury.

7. Any person who fails to perform an act required by law, when

prevented by some lawful insuperable cause.

1) Nature.

a) Those circumstances which the law exempts the offender from criminal
liability due to the absence any of all the conditions that would make an act
voluntary. There is, however, civil liability.

b) The basic reason behind the enactment of the exempting circumstances

under Article 12 of the Revised Penal Code is the complete absence of
intelligence, freedom of action, or intent on the part of the accused.347

2) Distinguished from justifying circumstances.

a) In justifying circumstances:

i) The circumstance affects the act, not the actor;

ii) The act is done within legal grounds, hence considered as not a crime;
iii) Since the act is not a crime, there is no criminal;
iv) There being no crime nor criminal, there is no criminal nor civil liability.

b) In exempting circumstances:

i) The circumstance affects the actor, not the act;

ii) The act is felonious and hence a crime but the actor acted without
voluntariness;
iii) Although there is a crime, there is no criminal liability because the

347 Guevarra v. Aldomovar, 169 SCRA 476 [1989].

 actor is regarded only as an instrument of the crime;
iv) There being a wrong done but no criminal.

c) Reason why exempting circumstances negate criminal liability.

i) For one who acts by virtue of any of the exempting circumstances,

although he commits a crime, by the complete absence of any of the
conditions which constitute free will or voluntariness of the act, no
criminal liability arises. Therefore, while there is a crime committed, no
criminal liability attaches.348

ii) It is worthy to note the basic reason behind the enactment of the
exempting circumstances embodied in Article 12 of the RPC; the
complete absence of intelligence, freedom of action, or intent, or on the
absence of negligence on the part of the accused. The second element
of dolus is intelligence; without this power, necessary to determine the
morality of human acts to distinguish a licit from an illicit act, no crime
can exist, and because the infant has no intelligence, the law exempts
him from criminal liability."349

3) Kinds of exempting circumstances:

a) Insanity or Imbecility;
b) Minority;
c) Accident;
d) Compulsion of Irresistible Fear;
e) Impulse of Uncontrollable Fear;
f) Insuperable or Lawful Cause.

4) Insanity or imbecility.

a) Definition. Insanity has been defined as 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 intellectual faculties, or by impaired or disordered volition. 350
Imbecility is one marked with mental deficiency.351 An imbecile is one, while

348 Ortega v. People, G.R. No. 151085, August 20, 2008.

349 Guevarra v. Almodovar, G.R. No. 75256, January 26, 1989.
350 Section 1039, Revised Administrative Code, cited in People v. Austria, G.R. No. 111517-19,

July 31, 1996.

351 1 Viada, Codigo Penal, 4th Ed., p. 92.
 advanced in his age, having a mental development comparable to that of children
between two and seven years of age.352 An insane person may have lucid interval
while an imbecile has none.353

b) Nature and basis. In all civilized nations, an act done by a person in a

state of insanity cannot be punished as an offense. The insanity
defense is rooted on the basic moral assumption of criminal law. Man
is naturally endowed with the faculties of understanding and free will.
The consent of the will is that which renders human actions laudable
or culpable. Hence, where there is a defect of the understanding, there
can be no free act of the will. An insane accused is not morally
blameworthy and should not be legally punished. No purpose of
criminal law is served by punishing an insane accused because by
reason of his mental state, he would have no control over his behavior
and cannot be deterred from similar behavior in the future. 354

c) Presumption of sanity. Sanity being the normal condition of the

human mind, the prosecution may proceed in the first instance upon
the presumption that the defendant was sane and responsible when
the act was committed. The presumption is always in favor of sanity
and the burden of proof of insanity is on the defense. If that
presumption were not indulged, the government would always be
under the necessity of adducing affirmative evidence of the sanity of
an accused. But a requirement of that character would seriously delay
and embarrass the enforcement of the laws against crime and in most
cases be unnecessary. Consequently, the law presumes that everyone
charged with crime is sane and thus, supplies in the first instance the
required proof of capacity to commit crime; that a person is criminally
liable for a felony committed by him; that a felonious or criminal act
(delito doloso) is presumed to have been done with deliberate intent,
that is, with freedom, intelligence and malice because the moral and
legal presumption is that freedom and intelligence constitute the
normal condition of a person in the absence of evidence to the
contrary; that one of the causes which will overthrow this presumption
of voluntariness and intelligence is insanity in which event the actor
is exempt from criminal liability as provided for in Article 12,
Paragraph 1, of the Revised Penal Code.355 Insanity being the
exception, rather than the rule, in the human condition, the moral and

352 Reyes, Luis B., The Revised Penal Code, 7th Ed., 216
353 People v. Ambal, G.R. No. L-52688, October 17, 1980.
354 People v. Roa, G.R. No. 225599, March 22, 2017 citing People v. Madarang, GR. No. 132319,

May 12, 2000.

355 People v. Aquino, G.R. No. 87084, June 27, 1990.
 legal presumption is that freedom and intelligence constitute the
normal condition of a person and that a felonious or criminal act
(delito doloso) has been done with deliberate intent, that is, with
freedom, intelligence and malice.356

d) The defense of insanity. The issue of insanity is a question of fact for

insanity is a condition of the mind, not susceptible of the usual means
of proof. As no man can know what is going on in the mind of another,
the state or condition of a person's mind can only be measured and
judged by his behavior. Establishing the insanity of an accused
requires opinion testimony which may be given by a witness who is
intimately acquainted with the accused, by a witness who has rational
basis to conclude that the accused was insane based on the witness'
own perception of the accused, or by a witness who is qualified as an
expert, such as a psychiatrist. The testimony or proof of the accused's
insanity must relate to the time preceding or coetaneous with the
commission of the offense with which he is charged. In this
jurisdiction, it had been consistently and uniformly held that the plea
of insanity is in the nature of confession and avoidance. Hence, the
accused is tried on the issue of sanity alone, and if found to be sane,
a judgment of conviction is rendered without any trial on the issue of
guilt, because the accused had already admitted committing the
crime.357

e) Effect. An insane person is exempt from criminal liability unless he

has acted during a lucid interval. If the court therefore finds the
accused insane when the alleged crime was committed, he shall be
acquitted but the court shall order his confinement in a hospital or
asylum for treatment until he may be released without danger. An
acquittal of the accused does not result in his outright release, but
rather in a verdict which is followed by commitment of the accused to
a mental institution.358

f) Imbecility is exempt in all cases while insanity is not so exempt if it can be

shown that he acted during lucid interval.

g) Insanity must exist at the time of the commission of the crime.

356 People v. Aldemita, G.R. No. L-55033-34, November 13, 1986.

357 People v. Roa, G.R. No. 225599, March 22, 2017 citing People v. Madarang, GR. No. 132319,
May 12, 2000.
358 People v. Racal, G.R. No. 224886, September 2, 2017.
 h) When exempted.

i) Insanity exists when there is complete deprivation of intelligence in

committing the act, that is, the accused is deprived of reason, he acts
without the least discernment because there is complete absence of the
power to discern, or that there is total deprivation of freedom of the
will. Mere abnormality of the mental faculties will not exclude
imputability.359

ii) For a person to be adjudged insane under Article 12 of the Revised

Penal Code, he must be deprived completely of reason or discernment
and freedom of the will at the time of committing the crime.360 The
accused must be "so insane as to be incapable of entertaining a
criminal intent." He must be deprived of reason and act without the
least discernment because there is a complete absence of the
power to discern or a total deprivation of freedom of the will.
"Diminished capacity” to discern what was wrong or right at the
time of the commission of the crime is not exempting. "Diminished
capacity" is not the same as "complete deprivation of intelligence
or discernment." Mere abnormality of mental faculties does not
exclude imputability.361

iii) Insanity must relate to the time immediately preceding or simultaneous

with the commission of the offense with which the accused is charged.
Otherwise, he must be adjudged guilty for the said offense. In short, in
order for the accused to be exempted from criminal liability under a plea
of insanity, he must categorically demonstrate that: (1) he was
completely deprived of intelligence because of his mental condition or
illness; and (2) such complete deprivation of intelligence must be
manifest at the time or immediately before the commission of the
offense.362 An inquiry into the mental state of an accused should
relate to the period immediately before or at the very moment the
felony is committed.363 The results of the psychiatric tests done on
accused four years ago may not be relied upon to prove accused
mental condition at the time of his commission of the crime.364

359 People v. Ambre, G. R. No. 52688, October 17, 1980.

360 People v. Formigones, G.R. No. L-3246, November 29, 1950.
361 People v. Racal, supra.
362 People v. Isla, G.R. No. 199875, November 21, 2012.
363 People v. So, 317 Phil. 826 (1995).
364 People v. Racal, supra.
 i) How to establish insanity. The issue of insanity is a question of fact
for insanity is a condition of the mind, not susceptible of the usual
means of proof as no man can know what is going on in the mind of
another, the state or condition of a person's mind can only be
measured and judged by his behavior. Establishing the insanity of an
accused requires opinion testimony which may be given by a witness
who is intimately acquainted with the accused, by a witness who has
rational basis to conclude that the accused was insane based on the
witness' own perception of the accused, or by a witness who is
qualified as an expert, such as a psychiatrist. The testimony or proof
of the accused's insanity must relate to the time preceding or
coetaneous with the commission of the offense with which he is
charged.365

j) In order to ascertain a person's mental condition at the time of the act, it is

permissible to receive evidence of his mental condition during a reasonable
period before and after. Direct testimony is not required nor are specific acts
of disagreement essential to establish insanity as a defense. A person's
mind can only be plumbed or fathomed by external acts. Thereby his
thoughts, motives and emotions may be evaluated to determine whether his
external acts conform to those of people of sound mind.366

k) The issue of insanity is a question of fact for insanity is a condition of

the mind, not susceptible of the usual means of proof. As no man can
know what is going on in the mind of another, the state or condition
of a person's mind can only be measured and judged by his behavior.
Establishing the insanity of an accused requires opinion testimony
which may be given by a witness who is intimately acquainted with the
accused, by a witness who has rational basis to conclude that the
accused was insane based on the witness' own perception of the
accused, or by a witness who is qualified as an expert, such as a
psychiatrist. 367

l) Tests of insanity.

i) The traditional test is the M'Naghten Rule – Adopted in Anglo-

American jurisprudence, the test states that "to establish a defense

365 People v. Roa, supra.

366 People v. Austria, 328 Phil. 1208 (1996).
367 People v. Madarang, G.R. No. 132319, May 12, 2000 citing California Criminal Law and

Procedure, William D. Raymond, Jr. and Daniel E. Hall, 1999 ed., pp. 227-228.
 on the ground of insanity, it must be clearly proved that, at the time
of committing the act, the party accused was laboring under such
a defect of reason from disease of the mind, as not to know the
nature and quality of the act he was doing, or, if he did know it, that
he did not know he was doing what was wrong." The M'Naghten
rule is a cognitive measure of insanity as the accused is required
to know two things: the nature and quality of the act, and that the
act was wrong. This rule has been criticized for its ambiguity. It was
debated whether the word "wrong" referred to moral or legal
wrong. The importance of the distinction was illustrated by
Stephen as follows: A kills B knowing that he is killing B and it is
illegal to kill B but under an insane delusion that God has
commanded him to kill B to obtain the salvation of the human race.
A's act is a crime if the word "wrong" means illegal but it is not a
crime if the word "wrong" means morally wrong. The word "know"
was also assailed as it referred solely to intellectual reason and
excluded affective or emotional knowledge. It was pointed out that
the accused may know in his mind what he is doing but may have
no grasp of the effect or consequences of his actions. M'Naghten
was condemned as based on an obsolete and misleading concept
of the nature of insanity as insanity does not only affect the
intellectual faculties but also affects the whole personality of the
patient, including his will and emotions. It was argued that reason
is only one of the elements of a personality and does not solely
determine man's conduct.368

ii) "Irresistible impulse" test – It means that "assuming defendant's

knowledge of the nature and quality of his act and knowledge that
the act is wrong, if, by reason of disease of the mind, defendant
has been deprived of or lost the power of his will which would
enable him to prevent himself from doing the act, then he cannot
be found guilty." Thus, even if the accused knew that what he was
doing was wrong, he would be acquitted by reason of insanity if
his mental illness kept him from controlling his conduct or
resisting the impulse to commit the crime. This rule rests on the
assumption that there are mental illnesses that impair volition or
self-control, even while there is cognition or knowledge of what is
right and wrong. This test was likewise criticized on the following
grounds: (1) the "impulse" requirement is too restrictive as it
covers only impulsive acts; (2) the "irresistible" requirement is also
restrictive as it requires absolute impairment of the freedom of the
will which cases are very rare; (3) it will not serve the purpose of

368 Ibid.
 criminal law to deter criminals as the will to resist commission of
the crime will not be encouraged, and; (4) it is difficult to prove
whether the act was the result of an insane, irresistible impulse.369

iii) The Durham "product" test - It postulated that "an accused is not
criminally responsible if his unlawful act was the product of mental
disease or defect." Critics of this test argued that it gave too much
protection to the accused. It placed the prosecution in a difficult
position of proving accused's sanity beyond reasonable doubt as
a mere testimony of a psychiatrist that accused's act was the result
of a mental disease leaves the judge with no choice but to accept
it as a fact. The case thus becomes completely dependent on the
testimonies of experts. 370

iv) The ALI "substantial capacity" test – This test integrated by the
American Law Institute (ALI) in its Model Penal Code Test, which
improved on the M'Naghten and irresistible impulse tests. The new
rule stated that a person is not responsible for his criminal act if,
as a result of the mental disease or defect, he lacks substantial
capacity to appreciate the criminality of his act or to conform his
conduct to the requirements of the law. Still, this test has been
criticized for its use of ambiguous words like "substantial
capacity" and "appreciate" as there would be differences in expert
testimonies whether the accused's degree of awareness was
sufficient. Objections were also made to the exclusion of
psychopaths or persons whose abnormalities are manifested only
by repeated criminal conduct. Critics observed that psychopaths
cannot be deterred and thus undeserving of punishment. 371

v) The Appreciation test - The test is similar to M'Naghten as it relies

on the cognitive test. The accused is not required to prove lack of
control as in the ALI test. The appreciation test shifted the burden
of proof to the defense, limited the scope of expert testimony,
eliminated the defense of diminished capacity and provided for
commitment of accused found to be insane.372

vi) Test adopted in Philippine jurisprudence or the Formigones

doctrine - A linguistic or grammatical analysis of those standards

369 Ibid.
370 Ibid
371 Ibid.
372 Ibid.
 suggests that Formigones established two (2) distinguishable
tests: (a) the test of cognition — "complete deprivation of
intelligence in committing the [criminal] act," and (b) the test of
volition — "or that there be a total deprivation freedom of the will."
But our caselaw shows common reliance on the test of cognition,
rather than on a test relating to "freedom of the will;" examination
of our caselaw has failed to turn up any case where this Court has
exempted an accused on the sole ground that he was totally
deprived of "freedom of the will," i.e., without an accompanying
"complete deprivation of intelligence." This is perhaps to be
expected since a person's volition naturally reaches out only
towards that which is presented as desirable by his intelligence,
whether that intelligence be diseased or healthy.373

m) Formigones doctrine. Although the Court has ruled many times in the
past on the insanity defense, it was only in People v. Formigones that
the Court elaborated on the required standards of legal insanity. In
order that this exempting circumstance may be taken into account, it
is necessary that there be a complete deprivation of intelligence in
committing the act, that is, that the accused be deprived of
reason; that there be no responsibility for his own acts; that he acts
without the least discernment; that there be a complete absence of
the power to discern, or that there be a total deprivation of freedom of
the will. For this reason, it was held that the imbecility or insanity at
the time of the commission of the act should absolutely deprive a
person of intelligence or freedom of will, because mere abnormality of
his mental faculties does not exclude imputability.374

n) The so-called Formigones doctrine enunciates that it is necessary that there

be a complete deprivation of intelligence in committing the act, that is, that
the accused be deprived of reason; that there be no responsibility for his
own acts; that he acts without the least discernment; that there be a
complete absence of the power to discern, or that there be a total
deprivation of freedom of the will. The imbecility or insanity at the time of
the commission of the act should absolutely deprive a person of intelligence
or freedom of will, because mere abnormality of his mental faculties does
not exclude imputability.375 In order that insanity may be taken as an
exempting circumstance, there must be complete deprivation of
intelligence in the commission of the act or that the accused acted

373 People v. Rafanan, G.R. No. L-54135, November 21, 1991.

374 Ibid.
375 People v. Formigones, supra.
 without the least discernment.376

o) Insanity, if not exempting, is mitigating. Examination of our caselaw has

failed to turn up any case where this Court has exempted an accused on
the sole ground that he was totally deprived of "freedom of the will," i.e.,
without an accompanying "complete deprivation of intelligence." This is
perhaps to be expected since a person's volition naturally reaches out only
towards that which is presented as desirable by his intelligence, whether
that intelligence be diseased or healthy. In any case, where the accused
failed to show complete impairment or loss of intelligence, the Court has
recognized at most a mitigating, not an exempting, circumstance in accord
with Article 13(9) of the Revised Penal Code: "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.377

p) Accused has the burden of proof to prove insanity. Insanity is the exception
rather than the rule in the human condition. Under Article 800 of the Civil
Code, the presumption is that every human is sane. Anyone who pleads the
exempting circumstance of insanity bears the burden of proving it with clear
and convincing evidence. It is in the nature of confession and avoidance.
An accused invoking insanity admits to have committed the crime but claims
that he or she is not guilty because of insanity. 378 An accused invoking the
insanity defense pleads not guilty by reason thereof. He admits committing
the crime but claims that he is not guilty because he was insane at the time
of its commission. Hence, the accused is tried on the issue of sanity alone
and if found to be sane, a judgment of conviction is rendered without any
trial on the issue of guilt as he had already admitted committing the crime.379

q) Proof of insanity required. The defense of insanity or imbecility must be

clearly proved, for there is a presumption that acts penalized by law are
voluntary. Hence, in the absence of positive evidence that the accused had
previously lost his reason or was demented moments prior to or during the
perpetration of the crime, the courts will always presume that he was in a
normal state of mind.380 For the plea of insanity to prosper, the accused
must present clear and convincing evidence to support the claim.381

r) Durham Rule not applicable in this jurisprudence. The Durham test

376 People v. Renegado, L-27031, May 31,1974.

377 People v. Rafanan, Jr., G.R. No. L-54135, November 21, 1991
378 People v. Tibon, G.R. No. 188320, June 29, 2010.
379 People v. Madarang, G.R. No. 132319, May 12, 2000.
380 People v. Medina, G.R. No. 113691, February 6, 1998.
381 People v. Roa, supra.
 provides "the so-called right wrong test, supplemented by the
irresistible impulse test. Under this test, an accused is not criminally
responsible if his unlawful act is the product of a mental disease or a
mental defect. A mental disease relieving an accused of criminal
responsibility for his unlawful act is a condition considered capable
of improvement or deterioration; a mental defect having such effect
on criminal responsibility is a condition not considered capable of
improvement or deterioration, and either congenital, or the result of
injury or of a physical or mental disease."382 This rule postulated that
an accused is not criminally responsible if his unlawful act was the
result of a mental disease or defect at the time of the
incident. However, in subsequent rulings, US Federal Courts and
State Courts, even by the court which originally adopted it, rejected
and abandoned this rule for being too broad and for lacking a clear
legal standard for criminal responsibility. In the Philippines, the
courts have established a clearer and more stringent criterion for
insanity to be exempting as it is required that there must be a complete
deprivation of intelligence in committing the act, i.e., the accused is
deprived of reason; he acted without the least discernment because
there is a complete absence of the power to discern, or that there is a
total deprivation of the will.383

s) The quantum of evidence required to overthrow the presumption of sanity

is proof beyond reasonable doubt. Insanity is a defense in a confession and
avoidance and as such must be proved beyond reasonable doubt.384

t) Insanity is not present in the following:

i) The fact that accused threatened the victim with death in case she
reported her ravishment indicated that he was aware of the
reprehensible moral depravity of that assault and that he was not
deprived of intelligence.385

ii) The accused knew the nature of what he had done negated his claim
that he was insane when he fatally stabbed his victim. This was
manifested at the time of the incident when he shouted “Napatay ko si
Mrs. Sigua.”386

382 Syllabi, Durham v. U.S., 214 F. 2nd. 862, 874, 45 A.L.R. 2d. 1430 [1954] cited in People v.
Ambal, G.R. No. L-52688. October 17, 1980.
383 People v. Racal, supra.
384 People v. Dungo, G.R. No. 894240, July 31, 1991.
385 People v. Rafanan, supra.
386 People v. Dungo, supra.
 iii) The accused took 120 cc of cough syrup and consumed three sticks of
marijuana before raping his victim and hitting her head with a stone, had
some form of mental illness which did not totally deprive him of
intelligence. The presence of his reasoning faculties, enabling him to
exercise sound judgment and to satisfactorily articulate the aforesaid
matters, sufficiently discounted any intimation of insanity when he
committed the felony.387

iv) Where the accused had a passionate nature, with a tendency to

having violent fits when angry, his acts of breaking glasses and
smashing dishes are indications of an explosive temper and not
insanity, especially considering that he did not turn violent when a
policeman intercepted him after he had killed his wife.388

v) There is a vast difference between an insane person and one who

has worked himself up into such a frenzy of anger that he fails to
use reason or good judgment in what he does. Persons who get
into a quarrel or fight seldom, if ever, act naturally during the fight.
An extremely angry man, often, if not always, acts like a madman.
The fact that a person acts crazy is not conclusive that he is insane.
The popular meaning of the word "crazy" is not synonymous with
the legal terms "insane", "non compos mentis," "unsound mind",
"idiot", or "lunatic."389

vi) The heat of passion and feeling produced by motives of anger,

hatred, or revenge is not insanity.390

vii) One who, in possession of a sound and, commits a criminal act

under the impulse of passion or revenge, which may temporarily
dethrone reason and for the moment control the will, cannot
nevertheless be shielded from the consequences of the act by the
plea of insanity. Insanity will only excuse the commission of a
criminal act, when it is made affirmatively to appear that the person
committing it was insane, and that the offense was the direct
consequence of his insanity.391

387 People v. Aquino, 186 SCRA 851.

388 People v. Cruz, 109 Phil. 288.
389 U.S. v. Vaquilar, 27 Phil. 88, 91.
390 Ibid. citing People v. Foy, 138 N.Y. 664.
391 Ibid. citing State v. Strickly, 41 Iowa 232.
 viii)The defense of insanity was rejected in a case where the accused
killed by strangulation a sixteen-year-old girl, who got leaves from
his banana plants, and sliced the flesh of her legs, thighs and
shoulders, cooked the flesh and ate it like a cannibal.392

ix) Being weak-minded does not necessarily mean that the accused is
insane.393

x) The fact that immediately after the incident the accused thought of
surrendering to the law-enforcing authorities is incontestable
proof that he knew that what he had done was wrong and that he
was going to be punished for it.394

xi) Deaf-muteness cannot be equated with imbecility or insanity. 395

u) Examples of mental disorders which negate criminal liability:

i) Dementia praecox/ Schizoprenia. Schizoprenia has been described as

a chronic mental disorder characterized by inability to distinguish
between fantasy and reality, and often accompanied by hallucinations
and delusions. Formerly called dementia praecox, it is said to be the
most common form of psychosis and usually develops between the ages
15.396

(1) Kurt Schneider's first-rank symptoms include the hearing of one's

thoughts spoken aloud, auditory hallucinations that comment on the
patient's behavior, somatic hallucinations, the experience of having
one's thoughts controlled, the spreading of one's thoughts to others,
delusions, and the experience of having one's actions controlled or
influenced from the outside.397

(2) In the type of dementia praecox, "the crime is usually preceded by

much complaining and planning. In these people, homicidal attacks
are common, because of delusions that they are being interfered with
sexually or that their property is being taken."398

392 People v. Balondo, L-27401, October 31, 1969.

393 People vs. Martin, 120 Phil. 14,
394 People v. Ambal, G.R. No. L-52688. October 17, 1980.
395 People v. Formigones, supra.

396 People v. Rafanan, supra.

397 People v. Pascual, G.R. No. 95029, March 24, 1993.
398 People v. Bonoan, G.R. No. L-45130, February 17, 1937.
 (3) In previous cases where schizophrenia was interposed as an
exempting circumstance, it has mostly been rejected by the
Court. In each of these cases, the evidence presented tended to
show that if there was impairment of the mental faculties, such
impairment was not so complete as to deprive the accused of
intelligence or the consciousness of his acts.399

(4) The Court held that schizophrenic reaction, although not

exempting because it does not completely deprive the offender
of the consciousness of his acts, may be considered as a
mitigating circumstance under Article 13(9) of the Revised
Penal Code, i.e., as an illness which diminishes the exercise of
the offender's will-power without, however, depriving him of the
consciousness of his acts.400

ii) Epilepsy. Epilepsy is a chronic nervous disease characterized by fits and

attended by convulsive motions of the muscles and loss of
consciousness. Where the accused claimed that he was epileptic but it
was not shown that he was under the influence of epileptic fit when he
committed the crime, he is not exempt.401

iii) Somnambulism. If it had been proven in the case that the defendant
when he committed these crimes was really asleep, or in a state of
somnambulism, or unconscious of his acts, then instead of coming
under paragraph 1 of article 8 of the Penal Code this case would come
under the provisions of article 1 of the Penal code, because a
somnambulist does not act voluntarily and therefore his acts do not
constitute a crime.402

iv) The defense that the offense charged was committed by the accused
during the prevalence of or in a state of somnambulism has been
recognized; but the latest holding of courts is to the effect that it does
not constitute a defense other than that embraced in a plea of insanity. 403

5) Minority under RA 9344 (Juvenile Justice and Welfare Act of 2006).

a) Nature of the law. Enacted into law on April 28, 2006, and took effect

399 People v. Rafanan, supra.

400 People v. Puno, 105 SCRA 151 (1981).
401 Reyes, Luis B. The Revised Penal Code, 18th ed. citing People v. Mancao, et al. 49 Phil. 887.
402 U.S. v. Odicta, G.R. No. 1749, March 21, 1905.
403 People v. Gimena, G.R. No. L-33877, February 6, 1931.
 on May 20, 2006, the law establishes a comprehensive system to manage
children in conflict with the law (CICL) and children at risk with child-
appropriate procedures and comprehensive programs and services such as
prevention, intervention, diversion, rehabilitation, re-integration and after-
care programs geared towards their development.404

b) Its intent is to promote and protect the rights of a child in conflict with the
law or a child at risk by providing a system that would ensure that children
are dealt with in a manner appropriate to their well-being through a variety
of disposition measures such as care, guidance and supervision orders,
counseling, probation, foster care, education and vocational training
programs and other alternatives to institutional care.405

c) This law modifies as well the minimum age limit of criminal irresponsibility
for minor offenders; it changed what paragraphs 2 and 3 of Article 12 of the
Revised Penal Code (RPC), as amended, previously provided i.e., from
under nine years of age and above nine years of age and under fifteen (who
acted without discernment) to fifteen years old or under and above fifteen
but below 18 (who acted without discernment) in determining exemption
from criminal liability. In providing exemption, the new law as the old
paragraphs 2 and 3, Article 12 of the RPC did presumes that the minor
offenders completely lack the intelligence to distinguish right from wrong, so
that their acts are deemed involuntary ones for which they cannot be held
accountable.406

d) Definition of child. (a) Child - refers to a person under the age of eighteen
(18) years; (b) Child at risk – refers to a child who is vulnerable to and at the
risk of committing criminal offenses because of personal, family and social
circumstances enumerated in Section 2 (d) of the law; (c) Child in conflict
with the law (CICL) – refers to a child who is alleged as, accused of or
adjudged as having committed an offense under Philippine laws.

e) Age of criminal responsibility. (a) 15 years and below – absolutely no

criminal liability but subject to intervention program; (b) 15 years and one
day to 17 years – no criminal liability (but subject to intervention program)
unless he acted with discernment in which case, he shall undergo diversion
program.

f) There is criminal liability if the minor acted with discernment. Discernment

404 Ortega v. People, G.R. No. 151085, August 20, 2008.

405 Sierra v. People, G.R. No. 182941, July 3, 2009.
406 Ibid.
 has been defined as the mental capacity of a minor to fully grasp the
consequences of his act, known and determined by taking into account all
the facts and circumstances presented by the records in each case.407 The
surrounding circumstances must demonstrate that the minor knew what he
was doing and that it was wrong.408 Such circumstance includes the
gruesome nature of the crime and the minor’s cunning and shrewdness.409

g) Examples of act of discernment: (1) choosing an isolated and dark place to

perpetrate the crime, to prevent detection; (2) boxing the victim to weaken
her defense, are indicative of the minor’s mental capacity to fully understand
the consequences of his unlawful action;410 (3) the victim was a helpless
minor; (4) accused-appellant secured the consummation of the offense with
a weapon; (5) he satisfied his lust by penetrating the victim from behind;
and (6) he threatened the victim not to report what happened.411

h) In both cases, the exemption does not carry with it the civil liability.

i) Determination of age. The CICL enjoys the presumption of minority. In case

of doubt, it shall be resolved in favor of the child pursuant to Section 7 of
the law as implemented by Section 20 of the IRR, the age of the child is
determined in the following manner:

i) Obtain documents that show proof of the child’s age, such as:

(1) Childs birth certificate;

(2) Childs baptismal certificate; or
(3) Any other pertinent documents such as but not limited to the child’s
school records, dental records, or travel papers.

ii) When the above documents cannot be obtained or pending receipt of

such documents, the law enforcement officer shall exhaust other
measures to determine age by:

(1) Interviewing the child and obtaining information that indicate age
(e.g. date of birthday, grade level in school);
(2) Interviewing persons who may have knowledge that indicate[s] age
of the child (e.g. relatives, neighbors, teachers, classmates);

407 People v. Jacinto, G.R. No. 182236, March 16, 2011.

408 Remiendo v. People, G.R. No. 184874, October 9, 2009.
409 Llave v. People, G.R. No. 166040, April 26, 2006.
410 People v. Jacinto, G.R. No. 182236, March 16, 2011.
411 People v. Deliola, G.R. No. 200157, August 31, 2016.
 (3) Evaluating the physical appearance (e.g. height, built) of the child;
and
(4) Obtaining other relevant evidence of age.

j) Testimonial evidence is competent evidence to prove the accused’s

minority and age.412

i) In the 1903 case of U.S. v. Bergantino,413 the court accepted testimonial

evidence to prove the minority and age of the accused in the absence
of any document or other satisfactory evidence showing the date of birth.

ii) This was followed by U.S. v. Roxas,414 where the defendant’s statement
about his age was considered sufficient, even without corroborative
evidence, to establish that he was a minor of 16 years at the time he
committed the offense charged.

iii) Subsequently, in People v. Tismo,415 the Court appreciated the minority

and age of the accused on the basis of his claim that he was 17 years
old at the time of the commission of the offense in the absence of any
contradictory evidence or objection on the part of the prosecution.

iv) Then, in People v. Villagracia,416 the court found the testimony of the
accused that he was less than 15 years old sufficient to establish his
minority.

v) The court reiterated these dicta in the cases of People v. Morial417

and David v. Court of Appeals,418 and ruled that the allegations of
minority and age by the accused will be accepted as facts upon the
prosecutions failure to disprove the claim by contrary evidence.

k) Burden of proof. The burden of evidence has now shifted to the defense
which now claims, by an affirmative defense, that the accused, even if guilty,
should be exempt from criminal liability because of his age when he
committed the crime. The defense, therefore, not the prosecution, has the
burden of showing by evidence that the petitioner was 15 years old or less

412 Ibid.
413 3 Phil 59, 61 (1903).
414 5 Phil 186, 187 (1905).
415 G.R. No. 44773, December 4,1991.
416 G.R. No. 94471, September 14, 1993.
417 G.R. No. 129295, August 15, 2001.
418 G.R. Nos. 11168-69, June 17, 1998.
 when he committed the rape charged.419

i) Any person contesting the age may file a case in a summary proceeding
for the determination of age before the Family Court.420

ii) In all proceedings, law enforcement officers, prosecutors, judges and

other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law. 421

l) Treatment of child below age of responsibility.

i) Children below the Age of Criminal Responsibility. If it has been

determined that the child taken into custody is fifteen (15) years old or
below, the authority which has an initial contact, in consultation with the
local social welfare, has the duty to immediately release the child to the
custody of his parents or guardian, and he shall undergo a community
based intervention program.422

ii) Serious Crimes Committed by Children Who Are Exempt from Criminal
Responsibility. A child over 12 up to 15 is deemed a neglected child
under PD 603 and shall be placed in youth care facility (Bahay Pag-asa),
in the following crimes; parricide, murder, infanticide, kidnapping and
serious illegal detention where the victim is killed or raped, robbery with
homicide or rape, destructive arson, rape, carnapping where the driver
or occupant is killed or raped, and offenses under RA 9165.423

iii) Repetition of Offenses. A child above 12 years of age up to 15 years of

age and commits an offense for the second time or oftener and that he
was previously subjected to a community-based intervention program,
shall undergo an intensive intervention program.

m) Exempting provisions.

i) Status Offenses. – Any conduct not considered an offense or not

penalized if committed by an adult shall not be considered an offense
and shall not be punished if committed by a child.424

419 People v. Concepcion, G.R. No. 136844, August 1, 2002.

420 Section 7, RA 9344.
421 Ibid.
422 Section 20, Ibid.
423 Section 20-A, Ibid.
424 Section 57, Ibid.
 ii) Violations of Local Ordinances. – Ordinances enacted by local
governments concerning juvenile status offenses such as, but not
limited to, curfew violations, truancy, parental disobedience, anti-
smoking and anti-drinking laws, as well as light offenses and
misdemeanors against public order or safety such as, but not limited to,
disorderly conduct, public scandal, harassment, drunkenness, public
intoxication, criminal nuisance, vandalism, gambling, mendicancy,
littering, public urination, and trespassing, shall be for the protection of
children. No penalty shall be imposed on children for said violations, and
they shall instead be brought to their residence or to any barangay
official at the barangay hall to be released to the custody of their parents.
Appropriate intervention programs shall be provided for in such
ordinances. The child shall also be recorded as a ‘child at risk’ and not
as a ‘child in conflict with the law’. The ordinance shall also provide for
intervention programs, such as counseling, attendance in group
activities for children, and for the parents, attendance in parenting
education seminars.425

iii) Offenses Not Applicable to Children. - Persons below eighteen (18)

years of age shall be exempt from prosecution for the crime of vagrancy
and prostitution under Section 202 of the Revised Penal Code, of
mendicancy under Presidential Decree No. 1563, and sniffing of rugby
under Presidential Decree No. 1619, such prosecution being
inconsistent with the United Nations Convention on the Rights of the
Child: Provided, That said persons shall undergo appropriate counseling
and treatment program.426

iv) Exemption from the Application of Death Penalty. - The provisions of the
Revised Penal Code, as amended, Republic Act No. 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, and other
special laws notwithstanding, no death penalty shall be imposed upon
children in conflict with the law.427

n) Programs or actions to be undertaken involving CICL.

i) Intervention. Refers to a series of activities which are designed to

address issues that caused the child to commit an offense. It may take
the form of an individualized treatment program which may include
counseling, skills training, education, and other activities that will

425 Section 57-A, Ibid.

426 Section 58, Ibid.
427 Section 59, Ibid.
 enhance his/her psychological, emotional and psycho-social well-being.

ii) Who should undergo intervention? CICL who is less than 15 years old
or below, or CICL who is 15 years old and one day to 17 years who did
not act with discernment. If the minor acted with discernment, he should
undergo diversion program.

iii) Diversion Program. It refers to the program that the child in conflict with
the law is required to undergo after he/she is found responsible for an
offense without resorting to formal court proceedings.

iv) Who should undergo? Where the imposable penalty is not more than 6
years and there is a victim – the diversion program shall be before the
law enforcement officer or the Punong Barangay and shall be in the form
of mediation, family conferencing and conciliation attended by the CICL
and his family.428 If there is NO victim, the diversion program shall be
conducted by the local social welfare and development officer with the
CICL and his parents or guardians.

v) Where the imposable penalty is more than 6 years, the diversion shall
be undertaken by the courts only. In case the penalty imposable is not
more than 12 years, regardless of the fine or fine only regardless of the
amount, and before arraignment of the CICL, the court shall determine
whether or not diversion is appropriate.429

vi) If the offense does not fall under any of the above or if the CICL, his
parents or guardians does not consent to a diversion, the authority
handling the case shall forward the records to the prosecutor or court
within three days from the determination of absence of jurisdiction or
termination of the proceedings and shall be filed according to the regular
process.

vii) Suspension of sentence. A CICL under 18 years of age at the time of

commission of the crime who is found guilty of the offense charged shall
be placed under suspended sentence without the need of application
even if the child is already 18 or more at the time of the pronouncement
of guilt unless disqualified under PD 603.430

viii) If the CICL reached 18 while under suspended sentence, the court shall

428 Section 23, Ibid.

429 Ibid.
430 Section 38, Ibid.
 either:

(1) Discharge the child;

(2) Order execution of sentence; or
(3) Extend the suspended sentence for a certain period or until he
reaches the maximum age of 21 years.431

ix) Section 38 of RA No. 9344 provides that when the child below 18 years
of age who committed a crime (acted with discernment) and was found
guilty, the court shall place the child in conflict with the law under
suspended sentence even if such child has reached 18 years or more
at the time of judgment. The suspension of sentence is made without
the need of application.432 The court, however, is mandated to determine
and ascertain any civil liability which may have resulted from the offense
committed.

x) The automatic suspension of sentence under Section 38 applies even if

the minor therein was convicted of reclusion perpetua. The provision
makes no distinction as to the nature of the offense committed by the
child in conflict with the law (unlike PD 603).433

xi) Further, although suspension of sentence still applies even if the child in
conflict with the law is already 18 years of age or more at the time the
judgment of conviction was rendered, however, such suspension is only
until the minor reaches the maximum age of 21 as provided under
Section 40. However, in order to give meaning to the legislative intent of
the Act, the promotion of the welfare of a child in conflict with the law
should extend even to one who has exceeded the age limit of twenty-
one (21) years, so long as he/she committed the crime when he/she was
still a child.434

xii) Upon conviction and upon order of the court, the minor offender may be
made to serve his/her sentence in an agricultural camp and other
training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD, in lieu of

431 Article 192, PD 603 (Child and Youth Welfare Code).

432 Suspended sentence is the holding in abeyance of the service of the sentence imposed by the
court upon a finding of guilt of the child in conflict with the law, whereby the child undergoes
rehabilitation within a fixed period under such terms and conditions as may be ordered by the
court. (Sec. 4, A.M. No. 02-1-18-SC, November 24, 2009).
433 People v. Sarcia, G.R. No. 169641, September 10, 2009.
434 People v. Jacinto, supra.; People v. Ancajas, et al., G.R. No. 199270, October 21, 2015.
 confinement in a regular penal institution.435

xiii)Probation. Upon application at any time, the court shall place the child
on probation in lieu of service of sentence. The application shall be filed
within 15 days from the promulgation of decision.

6) Accident.

a) Accident is something that happens outside the sway of our will, and
although it comes about through some act of our will, lies beyond the
bounds of humanly foreseeable consequences. If foreseeable, it will be a
case of negligence.436

b) Requisites:

i) A person performing a lawful act;

ii) With due care;
iii) He causes an injury to another by mere accident;
iv) Without fault or intention of causing it.437

c) Concepts.

i) The defense of accident presupposes lack of intention to kill.438

ii) Exemption from criminal liability proceeds from a finding that the harm
to the victim was not due to the fault or negligence of the accused, but
to circumstances that could not have been foreseen or
controlled.439 Thus, in determining whether an "accident" attended the
incident, courts must take into account the dual standards of lack of
intent to kill and absence of fault or negligence.440

iii) The legal provision pertinent to accident, contemplates a situation where

a person is in fact in the act of doing something legal, exercising due
care, diligence and prudence, but in the process produces harm or injury
to someone or to something not in the least in the mind of the actor an
accidental result flowing out of a legal act. Accident presupposes the

435 Sec. 51; People v. Deliola, G.R. No. 200157, October 31, 2016.
436 Reyes, Luis B., supra.
437 Toledo v. People, 482 Phil. 292.
438 Aradillos v. Court of Appeals, 464 Phil. 650.
439 People v. Cariquez, 373 Phil. 877.
440 Pomoy v. People, G.R. No. 150647, September 29, 2004.
 lack of intention to commit the wrong done.441

iv) In raising the defense of accident, the accused has the inescapable
burden of proving, by clear and convincing evidence, of accidental
infliction of injuries on the victim. In so doing, the accused has to rely on
the strength of his own evidence and not on the weakness of the
prosecution's evidence.442

7) Compulsion of Irresistible Force.

a) Requisites:

i) That the compulsion is by means of physical force;

ii) That the physical force must be irresistible; and
iii) That the physical force come from third person.443

b) Concepts.

i) 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. It must be such that, in spite of the resistance of the
person on whom it operates, it compels his members to act and his mind
to obey. He must act not only without will but against will. Such a force
can never consist anything which springs primarily from the man himself;
it must be a force which acts upon him from the outside and by means
of a third person.444

ii) Under Article 12 of the Revised Penal Code, a person is exempt from
criminal liability if he acts under the compulsion of an irresistible force,
or under the impulse of an uncontrollable fear of equal or greater injury,
because such person does not act with 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. A threat of future injury is not enough.445

441 Talampas v. People, G.R. No. 180219, November 23, 2011.

442 People v. Macal, G.R. No. 211062, January 13, 2016.
443 People v. Fernandez, G.R. L-22087, March 24, 1980.
444 U.S. v. Elicanal, G.R. No. L-11439, October 28, 1916.
445 People v. Anticamara, et al., G.R. No. 178771, June 8, 2011.
 iii) A person who acts under the compulsion of an irresistible force, like one
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. The force must be irresistible to reduce him to a mere
instrument who acts not only without will but against his will. The duress,
force, fear or intimidation must be present, imminent and impending and
of such a nature as to induce a well-grounded apprehension of death or
serious bodily harm if the act is not done. A threat of future injury is not
enough. The compulsion must be of such a character as to leave no
opportunity to the accused for escape or self-defense in equal
combat.446

8) Impulse of Uncontrollable Fear.

a) Requisites:

i) The existence of an uncontrollable fear;

ii) That the fear must be real and imminent; and
iii) The fear of an injury is greater than, or at least equal to, that
committed.447

b) Concepts.

i) Actus me invito factus non est meus actus. “Any act done by me against
my will is not my act.” The force contemplated must be so formidable as
to reduce the actor to a mere instrument who acts not only without will
but against his will. The duress, force, fear or intimidation must be
present, imminent and impending, and of such nature as to induce a
well-grounded apprehension of death or serious bodily harm if the act
be done. A threat of future injury is not enough. The compulsion must
be of such a character as to leave no opportunity for the accused for
escape or self-defense in equal combat.448

ii) In order that the circumstance of uncontrollable fear may apply, it is

necessary that the compulsion be of such a character as to leave no
opportunity to escape or self-defense in equal combat. 449

iii) The person using force or causing fear is the one liable. The actual

446 People v. Loreno, G.R. No. L-54414, July 9, 1984.

447 People v. Baron, G.R. No. 185209, June 28, 2010.
448 People v. Dequina, G.R. No. 177750, January 19, 2011.
449 People vs. Loreno, 130 SCRA 311, (1984).
 perpetrator is criminally exempt under Article 12.

iv) Distinguished from irresistible force. In irresistible force, the offender

uses violence or physical force to compel another to commit a crime; in
uncontrollable fear, the offender employs intimidation or threat in
compelling another to commit a crime.

9) Lawful or Insuperable Cause.

a) Requisites:

i) The act required by law to be done;

ii) The person fails to perform such act; and
iii) The failure is due to some lawful or insuperable cause.

b) Basis.

i) There is no intent to commit the act.

ii) There is a crime but there is no criminal. Act is not justified but the actor
is not criminally liable.
iii) Some motive which has lawfully, morally, or physically prevented a
person to do what the law commands.

c) Concepts.

i) This exempting circumstance implies knowledge of the precept of the

law to be complied with but 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.450

10) Absolutory Causes.

a) An absolutory cause is present "where the act committed is a crime but for
reasons of public policy and sentiment there is no penalty imposed."451 The
act committed constitutes of a crime but the law does not punish the
offender by reason of public policy.

b) Absolutory causes under the Revised Penal Code.

450 People v. Bandian, G.R. No. 45186, September 30, 1936.

451 People v. Talisic, G.R. No. 97961 September 5, 1997.
 i) Justifying and exempting circumstances;
ii) Spontaneous desistance during the attempted stage of felony (Art. 6,
par.);
iii) Light felonies are not punishable unless consummated except in crimes
against persons and property (Art. 7);
iv) Accessories are not liable in light felonies (Art. 16);
v) Accessories with respect to their spouses, ascendants, descendants,
legitimate, natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees except if they profit themselves or assist
the offenders to profit by the effects of the crime. (Art. 20);
vi) Commission of crime or violent insanity or any other ailment requiring
compulsory confinement of patient (Art. 124);
vii) Physical injuries other than serious physical injuries under exceptional
circumstances (Art. 247);
viii) No trespassing to any person who enters another house for the purpose
of preventing some serious harm to himself, the occupants of the
dwelling or third person, or to any person who enters a house for
purpose of rendering some service to humanity or justice, or to anyone
who enters ca cafes, taverns, inns, and other public house while they
are open. (Art. 280);
ix) Exemption of certain persons in the crimes of estafa, theft, or malicious
mischief. (Art. 332);
x) In cases of seduction, abduction, acts of lasciviousness, or rape, the
marriage of the offender with the offended party. (Art. 344);
xi) Instigation.

c) Instigation.

i) Instigation is the means by which the accused is lured into the

commission of the offense charged in order to prosecute him. The
officers of the law or their agents incite, induce, instigate or lure an
accused into committing an offense which he or she would otherwise not
commit and has no intention of committing.452

ii) The law deplores instigation or inducement, which occurs when the
police or its agent devises the idea of committing the crime and lures the
accused into executing the offense. Instigation absolves the accused of
any guilt, given the spontaneous moral revulsion from using the powers
of government to beguile innocent but ductile persons into lapses that

452 People v. Gatong-o, G.R. No. L-78698, 29 December 1988.

 they might otherwise resist.453

iii) Entrapment is not a defense available to the accused. It is instigation

that is a defense and is considered an absolutory cause.454

iv) Test to determine whether instigation or entrapment:

(1) To determine whether there is entrapment or instigation, our courts

have mainly examined the conduct of the apprehending officers, not
the predisposition of the accused to commit the crime. This is called
objective test. In subjective test, the accused past and predisposition
to commit crime are considered. However, in People v. Boholst,455
both tests were applied by examining the conduct of the police
officers in a buy-bust operation and admitting evidence of the
accused's membership with the notorious and dreaded Sigue-Sigue
Sputnik Gang. The court also considered accused's previous
convictions of other crimes and held that his opprobrious past and
membership with the dreaded gang strengthened the state's
evidence against him.

(2) The objective test in buy-bust operations demands that the details of
the purported transaction must be clearly and adequately
shown. This must start from the initial contact between the poseur-
buyer and the pusher, the offer to purchase, the promise or payment
of the consideration until the consummation of the sale by the
delivery of the illegal drug subject of the sale. The manner by which
the initial contact was made, whether or not through an informant,
the offer to purchase the drug, the payment of the buy-bust money,
and the delivery of the illegal drug, whether to the informant alone or
the police officer, must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to commit
an offense.456

v) Distinguished from entrapment.457

Distinction Instigation Entrapment

453 People v. Doria, G.R. No. 125299, 22 January 1999.

454 Ibid.
455 152 SCRA 263, 271 (1987).
456 People v. De Guzman, G.R. 151205, June 9, 2004.
457 People v. Bayani, G.R. No. 179150, June 17, 2008.
 Accused is lured into Entrapment is the
the commission of the employment of such ways
Concept offense charged in and means for the purpose
order to prosecute of trapping or capturing a
him lawbreaker.

The criminal intent or

Officers of the law
design to commit the
incite, induce,
offense charged originates
instigate, or lure
in the mind of the accused,
accused to commit
Manner and law enforcement
the offense. Thus, the
officials merely facilitate
criminal intent
the apprehension of the
originates from the
criminal by employing
officers of the law.
ruses and schemes

In instigation, where
law enforcers act as
Entrapment cannot bar
Legal effect co-principals, the
prosecution and conviction.
accused will have to
be acquitted.

Instigation is a "trap
Entrapment is a "trap for
Also known as for the unwary
the unwary criminal."
innocent.”

vi) In United Sates v. Phelps, the accused was acquitted from the offense
of smoking opium after finding that the government employee, a BIR
personnel, actually induced him to commit the crime in order to
persecute him. Smith, the BIR agent, testified that Phelps apprehension
came after he overheard Phelps in a saloon say that he like smoking
opium on some occasions. Smith’s testimony was disregarded. The
court accorded significance to the fact that it was Smith who went to the
accused three times to convince him to look for an opium den where
both of them could smoke this drug. The conduct of the BIR agent was
condemned as most reprehensible.458

vii) In People v. Abella, the accused was acquitted of the crime of selling
explosives after examining the testimony of the apprehending police

458 G.R. No. L-5728, August 11, 1910.

 officer who pretended to be a merchant. The police officer offered a
tempting price, a very high one causing the accused to sell the
explosives. The court found there was inducement, direct, persistent
and effective by the police officer and that outside of his testimony, there
was no evidence sufficient to convict the accused.459

d) Buy-bust operation (entrapment).

i) A buy-bust operation, considered as a form of entrapment, is a valid

means of arresting violators of Republic Act No. 9165. It is an effective
way of apprehending law offenders in the act of committing a crime. In
a buy-bust operation, the idea to commit a crime originates from the
offender, without anybody inducing or prodding him to commit the
offense. A police officer’s act of soliciting drugs from the accused during
a buy-bust operation, or what is known as a "decoy solicitation," is not
prohibited by law and does not render invalid the buy-bust operations.
The sale of contraband is a kind of offense habitually committed, and
the solicitation simply furnishes evidence of the criminal’s course of
conduct. 460

ii) A decoy solicitation is not tantamount to inducement or instigation. It is

no defense to the perpetrator of a crime that facilities for its commission
were purposely placed in his way, or that the criminal act was done at
the decoy solicitation of persons seeking to expose the criminal, or that
detectives feigning complicity in the act were present and apparently
assisting its commission. Especially is this true in that class of cases
where the office is one habitually committed, and the solicitation merely
furnishes evidence of a course of conduct.461

iii) In buy-bust operations, the testimony of the police officers who

apprehended the accused is usually accorded full faith and credit
because of the presumption that they have performed their duties
regularly. The presumption is overturned only if there is clear and
convincing evidence that they were not properly performing their duty or
that they were inspired by improper motive. The courts, nonetheless, are
advised to take caution in applying the presumption of regularity. It
should not by itself prevail over the presumption of innocence and the
constitutionally-protected rights of the individual.462

459 46 Phil. 857 [1923].

460 People v. Bartolome, G.R. No. 191726, February 06, 2013.
461 People v. Sta. Maria, G.R. No. 171019, February 23, 2007.
462 People v. De Guzman, G.R. No. 151205, June 9, 2004.
 iv) To determine whether there was a valid entrapment or whether proper
procedures were undertaken in effecting the buy-bust operation, it is
incumbent upon the courts to make sure that the details of the operation
are clearly and adequately established through relevant, material and
competent evidence. The courts cannot merely rely on, but must apply
with studied restraint, the presumption of regularity in the performance
of official duty by law enforcement agents. Courts are duty-bound to
exercise extra vigilance in trying drug cases and should not allow
themselves to be used as instruments of abuse and injustice lest
innocent persons are made to suffer the unusually severe penalties for
drug offenses.463

Chapter Six
MITIGATING CIRCUMSTANCES

Mitigating Circumstances

Article 13. Mitigating circumstances. - 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.

463 Valdez v. People, G.R. No. 170180, November 23, 2007.

 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.

1) Mitigating circumstances are those circumstances 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.

a) In mitigating circumstances, the following must be considered:

i) The offender commits a crime;

ii) There is a criminal liability;
iii) The effect is to reduce the penalty; and
iv) It does not change the nature of the crime.

b) Basis. There is diminution of either freedom of action, intelligence or intent,

or on the lesser perversity of the offender.

c) Classes: (1) Ordinary mitigating circumstance; and (2) Privileged mitigating

circumstance.

d) Ordinary and privileged mitigating circumstances, distinguished.

i) An ordinary mitigating circumstance can be offset by a generic

aggravating circumstance, whereas privileged mitigating circumstance
cannot be offset;
 ii) An ordinary mitigating circumstance, if not offset, has the effect of
imposing a lesser penalty, whereas a privileged mitigating circumstance
has the effect of imposing the penalty by one or two degrees lower than
that provided by law;

iii) Incomplete self-defense and minority are privileged mitigating

circumstances, while the rest are ordinary mitigating circumstances.

e) Other privileged mitigating circumstances.

i) Concealment of dishonor of the mother in Infanticide (255).

ii) Voluntary release of a person detained within 3 days without the
accused attaining his purpose and before the institution of criminal
action (268).
iii) Unjustified abandonment of the spouse in the crime of adultery (333).

2) Types of mitigating circumstances:

a) Incomplete self defense, defense of relatives, and defense of strangers.

i) Basis. Article 69 of the Revised Penal Code provides: "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 articles 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."464

ii) Nature. Incomplete self-defense is not considered as a justifying act, but

merely a mitigating circumstance; hence, the burden of proving the
crime charged in the information is not shifted to the accused. In order
that it may be successfully appreciated, however, it is necessary that a
majority of the requirements of self-defense be present, particularly the
requisite of unlawful aggression on the part of the victim. Unlawful
aggression by itself or in combination with either of the other two
requisite suffices to establish incomplete self-defense. Absent the
unlawful aggression, there can never be self-defense, complete or
incomplete, because if there is nothing to prevent or repel, the other two
requisites of defense will have no basis.465

464 People v. Oandasan, G.R. No. L-29532, September 28, 1968.

465 People v. CA, et al., G.R. No. 103613, Fefbruary 23, 2001.
 iii) Unlawful aggression must be present. For this purpose, the accused
must prove the existence of the majority of the elements for self-defense,
but unlawful aggression, being an indispensable element, must be
present. Either or both of the other requisites may be absent, namely:
reasonable necessity of the means employed to prevent or repel it, or
the lack of sufficient provocation on the part of the person defending
himself.466 To be appreciated, the unlawful aggression must be a
continuing circumstance or must have been existing at the time the
defense is made.467 A person making a defense has no more right to
attack an aggressor when the unlawful aggression has ceased.468

iv) Unlawful aggression must emanate from the victim. There can be no
self-defense, whether complete or incomplete, unless the victim had
committed unlawful aggression against the person who resorted to self-
defense.469 This mitigating circumstance is inapplicable when the
unlawful aggression started from the accused.470

v) Incomplete defense of a relative. For the claim of incomplete defense of

a relative to prosper, it is essential to prove the primordial element of
unlawful aggression. If there is no unlawful aggression there would be
nothing to prevent or repel. In that event, there could be no defense,
complete or incomplete.471

vi) Incomplete defense of a stranger. Absent either or both of the last two
(2) requisites, the mitigating circumstance of incomplete defense of
stranger may be appreciated. However, in either case, unlawful
aggression is always an essential element. It has been held that without
unlawful aggression, there could never be a defense, complete or
incomplete.472

vii) Penalty lowered to two degrees. Pursuant to Article 69 of RPC, the

penalty lower by one or two degrees 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. Considering that the majority of the

466 Mendoza v. People, G.R. No. 139759, January 14, 2005.

467 People v. Annibong, G.R. No. 139879, May 8, 2003.
468 People v. Cajurao, G.R. No. 122767, January 20, 2004.
469 People v. Dolorido, G.R. No. 191721, January 12, 2011.
470 Almojuela v. People, G.R. No. 183202, June 2, 2014.
471 People v. Layam, 234 SCRA 424.
472 People v. Flores, G.R. Nos. 103801-82, October 19, 1994.
 requirements for defense of property are present, the penalty may be
lowered by two degrees.473

b) Minority (above 15 less than 18).

i) General rule. Sec. 6 of RA 9344 exempts a child above fifteen (15) years
but below eighteen (18) years of age from criminal liability, unless the
child is found to have acted with discernment, in which case, "the
appropriate proceedings" in accordance with the Act shall be
observed.474

ii) Discernment. Discernment is that mental capacity of a minor to fully

appreciate the consequences of his unlawful act.475 Such capacity may
be known and should be determined by taking into consideration all the
facts and circumstances afforded by the records in each case. The
surrounding circumstances must demonstrate that the minor knew what
he was doing and that it was wrong. 476 Such circumstance includes the
gruesome nature of the crime and the minor’s cunning and
shrewdness.477 The act of a 17-year old offender in choosing an isolated
and dark place to perpetrate the crime, to prevent detection; and boxing
the victim to weaken her defense" are indicative of his mental capacity
to fully understand the consequences of his unlawful action.478 The
accused-appellant acted with discernment when he raped the victim is
demonstrated by the following surrounding circumstances: (1) the victim
was a helpless minor; (2) accused-appellant secured the consummation
of the offense with a weapon; (3) he satisfied his lust by penetrating the
victim from behind; and (4) he threatened the victim not to report what
happened.479 In case of discernment, the imposable penalty is modified
in view of the privileged mitigating circumstance of minority of the
accused which has the effect of reducing the penalty one degree lower
than that prescribed by law, pursuant to Article 68 of the Revised Penal
Code.480

iii) Basis of granting mitigating circumstance. A minor is entitled to the

privileged mitigating circumstance of minority embodied in Article 68(2)

473 People v. Narvaez, G.R. Nos. L-33466-67, April 30, 1983.

474 Sec. 6, RA 9344.
475 Madali v. People, G.R. No. 180380, 4 August 2009.
476 Remiendo v. People, G.R. No. 184874, 9 October 2009.
477 Llave v. People, G.R. No. 166040, 26 April 2006.
478 People v. Jacinto, G.R. No. 182239, March 16, 2011.
479 People v. Deliola, G.R. No. 200157, August 31, 2016.
480 Ibid.
 of the Revised Penal Code. It provides that when the offender is a minor
over 15 and under 18 years, the penalty next lower than that prescribed
by law shall be imposed on the accused but always in the proper
period.481

iv) Rationale. The rationale of the law in extending such leniency and
compassion is that because of his age, the accused is presumed to have
acted with less discernment.482

v) Doubts must be resolved in favor of minority. In regard to the doubt as

to whether the accused is over or under 18 years of age, and in the
absence of proof that on the day he committed the crime he was 18
years old, he must perforce be considered as still under that age, and
therefore, the mitigating circumstance mentioned in paragraph No. 2 of
article 9 of the code should be applied in his favor.483

vi) Minority preferred. Even if minority was not proven during the trial as the
birth certificate was belatedly presented, minority should be considered
since to rule accordingly will not adversely affect the rights of the state,
the victim and his heirs.484 In the interest of justice, the Court allowed
the presentation of and admitted the birth certificates of the accused to
prove the mitigating circumstance of minority although said birth
certificates were not presented or offered in the trial court.485 The claim
of minority has been upheld even without any other proof to corroborate
such testimony, especially when coupled with the fact that the
prosecution failed to present contradictory evidence.486

vii) Minority applied in drug cases. For violation of Comprehensive

Dangerous Drugs Act (RA 9165), where the accused was 17 years old
at the time of the commission of the offense, the Court held, inter alia,
that: (a) pursuant to Sec. 98 of RA 9165, the penalty for acts punishable
by life imprisonment to death provided in the same law shall be reclusion
perpetua to death when the offender is a minor; and (b) that the penalty
should be graduated since the said provision adopted the technical

481 People v. Agacer, et al., G.R. No. 177751, January 7, 2013.

482 Ibid. citing People v. Larrañaga, 516 Phil. 52.
483 U.S. v. Barbicho, 13 Phil. 616 (1909); People v. Baroy, G.R. Nos. 137520-22, August 15,

2003.
484 Ibid.
485 Co v. CA, et al., 99 SCRA 321 (1980).
486 People v. Villagracia, 226 SCRA 374 (1993); People v. Tismo, 204 SCRA 535 (1991); People

v. Ebora, 141 SCRA 282 (1986).

 nomenclature of penalties provided for in the Revised Penal Code. The
privileged mitigating circumstance of minority can now be appreciated in
fixing the penalty that should be imposed. The RTC, as affirmed by the
CA, imposed the penalty of reclusion perpetua without considering the
minority of the appellant. Thus, applying the rules stated above, the
proper penalty should be one degree lower than reclusion perpetua,
which is reclusion temporal, the privileged mitigating circumstance of
minority having been appreciated.487

c) The offender had no intention to commit so grave a wrong (praeter

intentionem).

i) Nature. This mitigating circumstance addresses itself to the intention of

the offender at the particular moment when the offender executes or
commits the criminal act488 not to his intention during the planning
stage.489 This circumstance is obtaining when there is a notable disparity
between the means employed by the accused to commit a wrong and
the resulting crime committed. The intention of the accused at the time
of the commission of the crime is manifested from the weapon used, the
mode of attack employed, and the injury sustained by the victim.490

ii) The allowance of this mitigating circumstance is consistent with the rule
that criminal liability shall be incurred by any person committing a felony
although the wrongful act done be different from that which he
intended.491

iii) How to determine this circumstance. In determining the presence of this

circumstance, it must be considered that since intention is a mental
process and is an internal state of mind, the accused's intention must be
judged by his conduct and external overt acts. 492 This circumstance is
obtaining when there is a notable disparity between the means
employed by the accused to commit a wrong and the resulting crime
committed. The intention of the accused at the time of the commission
of the crime is manifested from the weapon used, the mode of attack
employed and the injury sustained by the victim.493

487 People v. Mantalaba, G.R. No. 186227, July 20, 2011.

488 People v. Badriago, G.R. No. 183566, May 8, 2009.
489 People v. Boyles, G.R. No. L-15308, May 29, 1964.
490 People v. Buenamer, G.R. No. 206227, August 31, 2016.
491 Navarro v. CA, G.R. No. 121087, August 26, 1999.
492 People v. Regato, 212 Phil. 268 (1984).
493 People v. Gonzalez, Jr., G.R. No. 139542, June 21, 2001.
 iv) “Lucky punch” is indicative of lack of intent to commit so grave a wrong.
Accused tried to avoid the fight, being very much smaller than the victim.
He tried to parry the blows of the latter, albeit he was able, during the
scuffle, to connect a lucky punch that ended the fight. And lest it be
overlooked, accused helped carry his unconscious co-worker to the
office. Such gesture cannot reasonably be expected from, and would be
unbecoming of, one intending to commit so grave a wrong as killing the
victim. A bare-knuckle fight as a means to parry the challenge issued by
the victim was commensurate to the potential violence accused was
facing. It was just unfortunate that victim died from that lucky punch, an
eventuality that could have possibly been averted had he had the
financial means to get the proper medical attention.494

v) The mitigating circumstance of lack of intent to commit so grave a wrong

as that committed should be appreciated in favor of accused-appellant
for he had no intent to kill when he attacked the victim. His intention was
merely to inflict injuries on the victim.495

vi) No mitigating circumstance. The inflicting by the accused of five (5) stab
wounds in rapid succession brings forth in bold relief the intention of the
accused to snuff the life of the deceased, and definitely negated any
pretense of lack of intention to commit so serious an injury.496 The act of
the accused in pouring kerosene on the body of his wife and was burned
as her body was wet 90% of the chemical cannot be considered lack of
intent to commit so grave a wrong where it was established that he had
full possession of the container with kerosene.497 When a person stabs
another with a lethal weapon such as a fan knife upon a part of the body,
for example, the head, chest, or stomach, death could reasonably be
anticipated, and the accused must be presumed to have intended the
natural consequences of his wrongful act. The means employed
contradict the claim that accused had lack of intention to commit the
crime of homicide.498

vii) The mitigating circumstance of no intention to commit so grave a wrong

cannot be appreciated in cases of murder qualified by treachery. 499

494 Urbano v. People, G.R. No. 182750, January 20, 2009.

495 People v. Flores, G.R. No. 116524, January 18, 1996.
496 People v. Brana, 30 SCRA 308.
497 People v. Maglian, G.R. No. 189834, March 30, 2011.
498 People v. Reyes, G.R. No. L-42117, March 29, 1935.
499 People v. Pajenado, 161 Phil. 233 (1976).
 viii) The mitigating circumstance of lack of intent to commit so grave a wrong
as that actually perpetrated cannot be appreciated where the acts
employed by the accused were reasonably sufficient to produce and did
actually produce the death of the victim.500

ix) Recognizing the malum prohibitum characteristic of hazing, the law

provides that any person charged with the said crime shall not be entitled
to the mitigating circumstance that there was no intention to commit so
grave a wrong.501

d) That sufficient provocation or threat on the part of the offended party

immediately preceded the act (Sufficient provocation).

i) Sufficient provocation as mitigating circumstance. As a mitigating

circumstance, sufficient provocation is any unjust or improper conduct
or act of the victim adequate enough to excite a person to commit a
wrong, which is accordingly proportionate in gravity. Notably, while an
act cannot be considered an unlawful aggression for the purpose of self-
defense, the same act can be considered as sufficient provocation for
the purpose of mitigating the crime.502

ii) Requisites. For sufficient provocation under Article 13, paragraph

4 of the Revised Penal Code of the Philippines to apply, three
requisites must be present:

(1) provocation must be sufficient;

(2) it must be immediate to the commission of the crime; and
(3) it must originate from the offended party.503

iii) "Sufficient" according to jurisprudence means adequate to excite

a person to commit the crime and must accordingly be
proportionate to its gravity. For this mitigating circumstance to
apply, it is not enough that the provocating act be unreasonable or
annoying.504 Certainly, calling a person gay is not the sufficient
provocation contemplated by law that would lessen the liability of
the accused.505

500 Oriente v. People, G.R. No. 155094, January 30, 2007.

501 Dungo v. People, G.R. No. 209464, July 1, 2015.
502 Gotis v. People, G.R. No. 157201, September 14, 2007.
503 People v. Racal, G.R. No. 224886, September 4, 2017.
504 Bautista v. Court of Appeals [G.R. No. L-46025, September 2, 1992.
505 People v. Racal, supra.
 iv) "Immediate" on the other hand means that there is no interval of
time between the provocation and the commission of the crime.
Hence, in one case, the Supreme Court ruled that provocation
occurring more than one hour before the stabbing incident is not
immediate506 and 24 hours before the commission of the crime.507
Per admission of the defense witnesses, the taunting done by the
victim occurred days before the stabbing incident hence the
immediacy required by law was absent. The lapse of time would
have given the accused the chance to contemplate and to recover
his serenity enough to refrain from pushing through with his evil
plan.508

v) When provocation is sufficient. When the law speaks of provocation

either as a mitigating circumstance or as an essential element of self-
defense, the reference is to an unjust or improper conduct of the
offended party capable of exciting, inciting, or irritating anyone.509 It is
not enough that the provocative act be unreasonable or
annoying.510 The provocation must be sufficient to excite one to commit
the wrongful act511 and should immediately precede the act.512

vi) Sufficient provocation was present in the following cases. The victim,
before the killing, had challenged the accused’s family with a bolo and
an "indian pana." After this attack, the victim went home. The accused
thereafter grabbed a bolo, pursued the victim, and killed him. The Court
did not consider the victim’s act as an unlawful aggression for the
purpose of self-defense. However, such was considered a provocation
sufficient to mitigate the crime.513 The Court had likewise disregarded
the violent act of the victim before the shooting incident as an unlawful
aggression, but appreciated it as a mitigating circumstance of sufficient
provocation.514 The retaliation of the accused, although not considered
an unlawful aggression, was nevertheless deemed as sufficient
provocation. The Court explained, "Thrusting his bolo at petitioner,
threatening to kill him, and hacking the bamboo walls of his house are,
in our view, sufficient provocation to enrage any man, or stir his rage and

506 People v. Co, 67 O.G. 7451.

507 People v. Benito, 62 SCRA 351.
508 People v. Racal, supra.
509 Navarro v. CA, G.R. No. 121087, August 26, 1999.
510 Cano v. People, G.R. No. 155258, October 7, 2003.
511 People v. Nabora, 73 Phil. 434 (1941).
512 People v. Paga, No. L-32040, October 25, 1977.
513 Pepito v. CA, G.R. No. 119942, July 8, 1999.
514 People v. Ubaldo, G.R. No. 129389, October 17, 2001.
 obfuscate his thinking, more so when the lives of his wife and children
are in danger.515

e) Immediate vindication of a grave offense.

i) For such mitigating circumstance to be credited, the act should be

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.516

ii) A nephew is not a relative by affinity "within the same degree"

contemplated in Article 13, paragraph 5 of the Revised Penal Code.517

iii) The two accused were provoked to commit two murders because of the
indecent propositions made to the women by Jalumio and his
companions. For Mario Aninias, this is the mitigating circumstance of
passion and obfuscation or vindication of a grave offense to his wife.518

iv) There can be no immediate vindication of a grave offense when the

accused had sufficient time to recover his equanimity. 519 A period of
four days was sufficient enough a time within which the accused could
have regained his composure and self-control. Thus, the said mitigating
circumstance cannot be credited in favor of the accused-appellant.520

f) Passion and obfuscation.

i) Requisites:

(1) That there be an act, both unlawful and sufficient to produce such a
condition of mind; and

(2) That said act which produced the obfuscation was not far removed
from the commission of the crime by a considerable length of time
during which the perpetrator might recover his normal equanimity. 521

515 Romero v. People, G.R. No. 151978, July 14, 2004.

516 Bacabac v. People, G.R. No. 149372, September 11, 2007.
517 Ibid.
518 People v. Timoteo Olgado, et al, L-4406, March 31, 1952; 91 Phil. 908 Unrep.
519 People v. Palabrica, 409 Phil. 618 (2001).
520 People v. Rebucan, G.R. No. 182551, July 27, 2011.
521 People v. Lobino, G.R. No. 123071, October 28, 1999.
 ii) Concepts.

(1) 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.522

(2) Passion and obfuscation as affecting the mind and resulting in lack
of reason and self-control must originate from lawful sentiments.523
The turmoil and unreason which naturally result from a quarrel or
fight should not be confused with the sentiment or excitement in the
mind of a person injured or offended to such a degree as to deprive
him of his sanity and self-control, because the cause of this condition
of mind must necessarily have preceded the commission of the
offense.524 If the only provocative act came from the parents who did
not approve of the accused proposal to marry their daughter, this act
was not unlawful. Neither was it sufficient to sustain passion and
obfuscation. Accused was actuated more by a spirit of lawlessness
and revenge rather than any sudden and legitimate impulse of
natural and uncontrollable fury.525

(3) The only causes which mitigate the criminal responsibility for the loss
of self-control are such as originate from legitimate feelings, not
those which arise from vicious, unworthy, and immoral passions.526
If the accused acted with jealousy out of illicit romantic relationship,
there is no passion and obfuscation. However, there is passion and
obfuscation if the impulse upon which defendant acted and which
naturally "produced passion and obfuscation" was not that the
woman declined to have illicit relations with him, but the sudden
revelation that she was untrue to him, and his discovery of her in
flagrante in the arms of another.527

(4) Moreover, the act producing the obfuscation must not be far removed
from the commission of the crime by a considerable length of time,
during which the accused might have recovered his normal

522 People v. Valles, G.R. No. 110564, January 28, 1997.

523 People v. Reyes, 100 SCRA 581.
524 People v. Bautista, G.R. No. 109800, March 12, 1996.
525 People v. Gravino, G.R. No. L-31327, May 16, 1983.
526 U.S. v. Hicks, G.R. No. 4971, September 23, 1909.
527 U.S. v. Dela Cruz, L-7094, March 29, 1912.
 equanimity.528

(5) There is no uniform rule on what constitutes "a considerable length

of time." The provocation and the commission of the crime should
not be so far apart that a reasonable length of time has passed during
which the accused would have calmed down and be able to reflect
on the consequences of his or her actions. What is important is that
the accused has not yet "recovered his normal equanimity" when he
committed the crime.529

(6) The attack, made 30 minutes between the fistfight and the killing,
cannot be said to be the result of a sudden impulse of natural and
uncontrollable fury. Having been actuated more by the spirit of
revenge or by anger and resentment for having been publicly berated
cannot be credited with the extenuating circumstance of passion and
obfuscation.530

(7) Acts done in the spirit of revenge cannot be considered acts done
with passion and obfuscation.531

g) Voluntary Surrender.

i) Two mitigating circumstances:

(1) Voluntary surrender to a person in authority or his agents; and

(2) Voluntary confession of guilt before the court prior to the presentation
of evidence for the prosecution.

ii) Requisites for voluntary surrender:

(1) the accused has not been actually arrested;

(2) the accused surrenders himself to a person in authority or the latter’s
agent; and
(3) the surrender is voluntary.532
(4) there is no pending warrant of arrest or information filed.533

528 People v. Lobino, supra.

529 People v. Oloverio, G.R. No. 2111159, March 18, 2015.
530 Ibid.
531 Ibid.
532 People v. Ignacio, G.R. No. 134568, February 10, 2000.
533 People v. Cagas, G.R. No. 145504, June 30, 2004; People v. Taraya, 398 Phil. 311 (2000).
 iii) Concepts.

(1) The essence of voluntary surrender is spontaneity and the intent of

the accused to give himself up and submit himself to the authorities
either because he acknowledges his guilt or he wishes to save the
authorities the trouble and expense that may be incurred for his
search and capture.534

(2) Without these elements, and where the clear reasons for the
supposed surrender are the inevitability of arrest and the need to
ensure his safety, the surrender is not spontaneous and, therefore,
cannot be characterized as voluntary surrender to serve as a
mitigating circumstance.535

(3) The fourth requisite. In Cagas, after the stabbing incident, the
accused ran to the upper portion of the cemetery where a police
officer caught up with him. Thereupon, he voluntarily gave himself
up. The Court held that if the accused did then and there surrender,
it was because he was left with no choice. Thus, the surrender was
not spontaneous.536

(4) In Taraya, when the accused learned that the police authorities were
looking for him (because of a warrant for his arrest), he immediately
went to the police station where he confessed that he killed the
victim. Notwithstanding such surrender and confession to the police,
the Court refused to appreciate the mitigating circumstance in his
favor.537

(5) In People v. Barcino, Jr.538 the accused surrendered to the

authorities after more than one year from the incident in order to
disclaim responsibility for the killing of the victim. The Court refused
to mitigate the accused’s liability because there was no
acknowledgment of the commission of the crime or the intention to
save the government the trouble and expense in his search and
capture; and there was a pending warrant for his arrest.

iv) Requisites for voluntary plea:

534 People v. Garcia, G.R. No. 174479, June 17, 2008.

535 Ibid.
536 People v. Cagas, supra.
537 People v. Taraya, supra.
538 67 Phil. 709 (2004).
 (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; and
(3) That the confession of guilt was made prior to the presentation of
evidence for the prosecution.

v) Basis: Lesser perversity of the offender.

vi) If both circumstances are present in the same case they have the effect
of two independent circumstances539 and in the absence of aggravating
circumstances, they will reduce divisible penalties by one degree.

h) The offender is Deaf and Dumb or Blind.

i) Concept. The physical defect contemplated in this mitigating

circumstance must affect the means of action, defense or
communication of the offender with his fellow beings. The nature of the
offense is to be considered as to whether such physical defect is
mitigating.540 This has been extended to cover cripples, armless people
even stutterers. The circumstance assumes that with their physical
defect, the offenders do not have a complete freedom of action therefore
diminishing the element of voluntariness in the commission of a crime.

ii) Basis. One suffering from physical defect which restricts him does not
have complete freedom of action and therefore, there is diminution of
that element of voluntariness.

i) Illness that Diminishes the Exercise of Will-Power.

i) Requisites:

(1) Illness of the offender must diminish the exercise of his will-power;
and
(2) Such illness should not deprive the offender of consciousness of his
acts.

ii) Concepts.

(1) When the offender completely lost the exercise of will-power, it may

539 People vs. Fontalba, 61 Phil 589.

540 Gregorio, supra., page 107.
 be an exempting circumstance.

(2) Schizophrenia may be considered mitigating under Art. 13(9) if it

diminishes the exercise of the willpower of the accused.541

j) Analogous and Similar Mitigating Circumstances.

i) Examples:

(1) Defendant who is 60 years old with failing eyesight is similar to a

case of one over 70 years old;
(2) Jealousy similar to passion and obfuscation;
(3) Voluntary restitution of property, similar to voluntary surrender;
(4) Extreme poverty and necessity as a mitigating circumstance falling
within No. 10 of article 13 of the Revised Penal Code, which
authorizes the court to consider in favor of an accused "any other
circumstance of a similar nature and analogous to those above
mentioned." 542
(5) The accused returned home following the incident and resolved to
remain there, knowing that the police was on its way to his house.
And as the policemen approached his home, he directly gave himself
up to them. If accused t wanted to abscond, he could have readily
done so but this, he did not do. This justifies the appreciation of a
mitigating circumstance of a similar nature or analogous to voluntary
surrender, under number 10, Article 13 of the Revised Penal Code.543

ii) The following are held not analogous or similar mitigating

circumstances: (1) killing a wrong person; (2) one resisting arrest is not
the same as voluntary surrender; (3) running amuck is not mitigating.

541 People v. Villanueva, G.R. No. 172697, September 25, 2007.

542 People v. Macbul, G.R. No. L-48976, October 11, 1943.
543 Eduarte v. People., 617 Phil. 661 (2009).
 Chapter Seven
AGGRAVATING CIRCUMSTANCES

Aggravating Circumstances

Article 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.

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.

1) Nature. Those which serve to increase the penalty without exceeding the
maximum provided by law because of the greater perversity of the offender as
shown by the motivating power of the commission of the crime, the time and
place of its commission, the means employed or the personal circumstances
of the offender.544

2) Basis. The greater perversity of the offender as shown by:

a) Motivating power itself;

b) Place of the commission;
c) Means and ways employed;
d) Time;
e) Personal circumstances of the offended, or of the offended party.

3) Kinds of aggravating circumstances:

a) Generic or those that can generally apply to all crimes;

b) Specific or those that apply only to particular crimes;
c) Qualifying or those that change the nature of the crime; and
d) Inherent or those that must of necessity accompany the commission of the
crime.545

4) Generic and Qualifying circumstances, distinguished.

a) A generic aggravating circumstance can be offset by an ordinary mitigating

circumstance which is not so in qualifying.
b) A qualifying aggravating cannot be proved unless alleged in the information.
A generic aggravating may be proved even if not alleged.
c) Generic aggravating circumstances not offset have the effect of increasing
the penalty to the maximum but not beyond that provided by law. A
qualifying aggravating changes not only the nature but also the name of the

544 Gregorio, Ibid.

545 People v. Lab-eo, G.R. No. 133438, January 16, 2002.
 crime and the offender becomes liable for the new offense which is more
serious in nature.
d) Qualifying must be alleged in the information and be established by direct
and positive evidence, not by mere prescription or inference.

5) Generic aggravating circumstances and special aggravating circumstances.

a) Generic aggravating circumstances.

i) Concept. Generic aggravating circumstances are those that generally

apply to all crimes. Examples:

(1) Taking advantage of official position;

(2) Crime committed in contempt of or with insult to public authorities;
(3) Act committed with insult or lack of regard due to offended party by
reason of age, sex, rank, or the crime is committed in the dwelling
of the offended party, if the latter has not given provocation;
(4) Abuse of confidence;
(5) Crime committed in the (a) palace of the Chief Executive; (b) in his
presence; (c) where public authorities are engaged in the discharge
of duties; or (d) in a place dedicated to religious worship;
(6) Nighttime, uninhabited place, or band;
(7) Recidivism;
(8) Reiteracion or habituality;
(9) Craft, fraud or disguise is employed;
(10) Unlawful entry;
(11) As a means to the commission of a crime a wall, roof, floor, door, or
window be broken;
(12) With the aid of persons under 15 years or by means of motor
vehicles, airships, motorized water craft or similar means.

ii) Effect. It has the effect of increasing the penalty for the crime to its
maximum period, but it cannot increase the same to the next higher
degree.

iii) Need to specifically allege. It must always be alleged and charged in

the information, and must be proven during the trial in order to be
appreciated.

iv) Offsetting. It can be offset by an ordinary mitigating circumstance.546

546 Palaganas v. People, G.R. No. 165483, September 12, 2006.

 b) Special aggravating circumstances.

i) Concept. Special aggravating circumstances are those which arise

under special conditions to increase the penalty for the offense to its
maximum period, but the same cannot increase the penalty to the next
higher degree.

ii) Examples:

(1) Quasi-recidivism under Article 160;

(2) Complex crimes under Article 48 of the Revised Penal Code.
(3) Use of loose firearm in the commission of the crime (RA 10591).

iii) Effect. It does not change the character of the offense charged.547

iv) Need to allege in the information. It must always be alleged and charged
in the information, and must be proven during the trial in order to be
appreciated.

v) Offsetting. It cannot be offset by an ordinary mitigating circumstance.548

6) The “aggravating circumstances” on the civil liability of the accused. The term
"aggravating circumstances" used by the Civil Code, the law not having
specified otherwise, is to be understood in its broad or generic sense. The
commission of an offense has a two-pronged effect, one on the public as it
breaches the social order and the other upon the private victim as it causes
personal sufferings, each of which is addressed by, respectively, the
prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a
graver felony underscores the exacerbation of the offense by the attendance
of aggravating circumstances, whether ordinary or qualifying, in its
commission. Unlike the criminal liability which is basically a State concern, the
award of damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for an award of
exemplary damages to be due the private offended party when the aggravating
circumstance is ordinary but to be withheld when it is qualifying. Withal, the
ordinary or qualifying nature of an aggravating circumstance is a distinction that
should only be of consequence to the criminal, rather than to the civil, liability
of the offender. In fine, relative to the civil aspect of the case, an aggravating

547 People v. Agguihao, G.R. No. 104725, March 10, 1994.

548 People v. De Leon, G.R. No. 179943, June 26, 2009.
 circumstance, whether ordinary or qualifying, should entitle the offended party
to an award of exemplary damages within the unbridled meaning of Article 2230
of the Civil Code.549

7) Types of aggravating circumstances:

a) Take advantage of public position (generic).

i) Requisites:

(1) The offender is a public officer; and

(2) He used the influence, prestige and ascendancy of his office in the
commission of the crime.

ii) Concepts.

(1) The essence of the matter is presented in the question: Did the
accused abuse his office in order to commit the crime? If the accused
could have killed the victim without having occupied his position of
confidential agent, then there is no abuse of public position.550

(2) If the abuse of the office is an integral element of the felony as in

falsification of public document by a public officer who took
advantage of his official position, bribery or malversation, this
circumstance is not considered. This is inherent in the crime since, it
cannot be committed except by public officer.551

b) Contempt or insult to public authorities (generic).

i) Requisites:

(1) Public authority is engaged in exercise of his functions;

(2) The said person is not the person against whom the crime is
committed; and
(3) The offender knows him to be a public authority.

ii) Concepts.

549 People v. Catubig, G.R. No. 137842, August 23, 2001.

550 People v. Ordiales, G.R. L-30956, November 23, 1971.
551 Gregorio, supra, page 114 citing People v. Teves, 44 Phil. 275.
 (1) This circumstance is present when the offender has not been
prevented from committing the criminal act despite the presence of
the public authority.

(2) If the crime is committed against the public authority, the crime
committed is direct assault. This circumstance is absorbed.552

c) Disregard of rank, age, or sex and dwelling of the offended part (generic).

i) Requisites:

(1) Act of deliberate intention to disregard or insult age, sex, or rank; and
(2) Proof of fact of disregard and deliberate intent.

ii) Concepts.

(1) Rank – refers to a high position social position or standing, for

example, killing judge because he was strict,553 or difference in the
social condition of the offender and the offended party.

(2) Age - tender age or old age of the offended party.

(3) Sex - applies to the female sex only. To be aggravating, it must be

shown that the accused deliberately intended to offend or insult the
sex of the victim, or showed manifest disrespect for her
womanhood.554

(4) Dwelling – includes dependencies, staircase, and enclosures.

(a) Dwelling is aggravating in robbery with violence or intimidation

because the crime can be committed without the necessity of
transgressing the sanctity of the house.555

(b) The offender’s deliberate invasion of the tranquillity of one’s

domicile.556 Dwelling is aggravating because of the sanctity of
privacy which the law accords to human abode. He who goes to
another's house to hurt him or do him wrong is more guilty than

552 People v. Siojo, 81 Phil. 367.

553 People v. Valeriano, G.R. No. L-2159, September 29, 1951.
554 Mari v. Court of Appeals, G. R. No. 127694, May 31, 2000.
555 People v. Dajaresco, G.R. L-32701, June 19, 1984.
556 People v. Roncal, et al., G.R. L-26857-58, October 21, 1977.
 he who offends him elsewhere."557

(c) Dwelling aggravates a felony where the crime is committed in the

dwelling of the offended party provided that the latter has not
given provocation therefor.558

(5) If all four circumstances are present, only one aggravating

circumstance will be considered.

(6) The aggravating circumstances of age, sex and rank are considered
in crimes against persons, security, and honor but not in crimes
against property. Robbery with homicide is a crime against property.

d) Abuse of confidence and obvious ungratefulness.

i) Requisites:

(1) The offended party trusted the offender;

(2) The offender abused such trust; and
(3) The abuse of confidence facilitated the commission of the crime.

ii) Concepts.

(1) For this aggravating circumstance to exist, it is essential to show that

the confidence between the parties must be immediate and personal
such as would give the accused some advantage or make it easier
for him to commit the criminal act. The confidence must be a means
of facilitating the commission of the crime, the culprit taking
advantage of the offended party’s belief that the former would not
abuse said confidence.559

(2) This circumstance is present when the accused was treated like a
member of the family,560 or who was living in the house of the victim
employed by the victim as an overseer and had free access in the
house of the victim who was very kind to him.561

e) Palace of the chief executive or place dedicated to religious worship

557 People v. Agcanas, 74 Phil. 626 (2011).

558 People v. Evangelio, 672 Phil. 229.
559 People v. Gelera, 277 SCRA 450 (1997).
560 People v. Verdad, G.R. No. L-51797, Mau 16, 1983.
561 People v. Lupangco, 109 SCRA 109.
 (generic).

i) Concepts.

(1) The public authority is engaged in the performance of his duty.

(2) The public authority is in his office, or the place dedicated to the
worship of God.

(3) The public authority may be the offended party.

(4) Offender must have the intention to commit a crime when he entered
the place.

(5) It is necessary to show that the offender must have sought any of the
places for the commission of the crime.562

(6) If any of the said places was not sought for as the crime was casually
committed therein, this circumstance is not present.563

f) Nighttime, uninhabited place, or band (qualifying).

i) Nighttime.

(1) Nighttime is that period of darkness beginning at the end of dusk and
ending at dawn.564

(2) It is considered an aggravating circumstance only when it is sought

to prevent the accused from being recognized or to ensure their
escape. There must be proof that this was intentionally sought to
ensure the commission of the crime and that the perpetrators took
advantage of it. Although the crime was committed at nighttime, if
there is no evidence that the accused took advantage of nighttime or
that nighttime facilitated the commission of the crime, then this
circumstance cannot be appreciated.565

(3) By and of itself, nighttime is not an aggravating circumstance. It

562 People v. Jaurigue, 76 Phil. 174.

563 Gregorio, supra, page 125.
564 People v. Garachico, et al., G.R. No. L-30849 March 29, 1982.
565 People v. Tolentino, G.R. No. 176385, February 26, 2008.
 becomes so only when it is especially sought by the offender and
taken advantage of by him to facilitate the commission of the crime
to insure his immunity from capture.566 Stated differently, in default
of any showing or evidence that the peculiar advantages of nighttime
was purposely and deliberately sought by the accused, the fact that
the offense was committed at night will not suffice to
sustain nocturnidad. It must concur with the intent or design of the
offender to capitalize on the intrinsic impunity afforded by the
darkness of night.567

(4) The essence of this aggravating circumstance is

the obscuridad afforded by, and not merely the chronological onset
of, nighttime.568

(5) Nocturnity lures those who crave for blood to yield to their baser
impulses with the false courage borne out of the belief that their
identity would not be brought in the open.569

(6) It cannot be considered if it is incidental or has no influence in the

commission of the crime (like bigamy).570

(7) Nighttime cannot be considered if it is shown that the place was

adequately lighted.571

(8) Nighttime is absorbed by treachery.572

(9) Tests: There is objective test if nighttime facilitates the commission

of the crime; there issubjective test, if it is purposely sought for by the
offender. Both tests are applied.

ii) Uninhabited place. An uninhabited place is one where there are no

houses at all, a considerable distance from town, or where the houses

566
People v. Alcala, 46 Phil. 739; People v. Matbagon, 60 Phil. 887; People v. Pardo, 79 Phil.
658.
567 People v. Boyles, G.R. No. L-15308, May 29, 1964.
568 U.S. v. Paraiso, 17 Phil. 142.
569 People v. Arizobal, G.R. No. 135051-51, December 14, 2000.
570 Gregorio, supra. Page 126.
571 People v. Arizobal, supra.
572 People vs. Enot, L-17530, October 30, 1962.
 are scattered at a great distance from each other.573

(1) A distance of 200 yards to the nearest house is sufficient to make the
scene of the crime uninhabited.574 What the Supreme Court
considered as uninhabited is a place about a kilometer from the
nearest house or other inhabited place.575

(2) The place is not uninhabited when the crime was committed on the
railroad tracks, within 90 yards of inhabited houses. The houses were
sufficiently near for the inmates to have heard calls for help if the
deceased had cried out in a loud voice.576

(3) The aggravating circumstance of uninhabited place cannot likewise

be appreciated in the absence of evidence that the accused actually
sought an isolated place to better execute their purpose.577

iii) Band. An offense shall be deemed to have been committed by a band

whenever more than three (3) armed malefactors shall have acted
together in the commission thereof.578

(1) Band is inherent in brigandage. In simple robbery, it is not.

(2) Band is appreciated in the following: Treason, Crimes against

persons, Robbery with homicide, or rape, or intentional mutilation, or
with physical injuries resulting in insanity, impotency or blindness.579

g) On occasion of calamity or misfortune (qualifying).

i) Requisites:

(1) The offender must take advantage of the calamity or misfortune; and
(2) The crime was committed during the conflagration, shipwreck,
earthquake, epidemic or other calamity or misfortune.

ii) Concepts.

573 People v. Salgado, G.R. No. 4498, August 5, 1908

574 People vs. Pulido, 85 Phil. 695 [1905]).
575 People vs. Aguinaldo, 55 Phil. 610
576 U.S. v. Balagtas, G.R. No. L-6422, March 22, 1911.
577 People v. Fortich, 346 Phil. 596.
578 People v. Dela Cruz, G.R. No. 102063, G.R. No. January 20, 1993.
579 People v. Puesca, 87 SCRA 130.
 (1) In this circumstance, the offender takes advantage of the situation.
He commits the crime on the occasion of the calamity. In par. 12 of
Article 14, the crime is committed using fire, inundation or explosion.

(2) The term “misfortune” does not include the development of engine
trouble at sea. It does not come within the phrase "other calamity or
misfortune" as used in Article 14, paragraph 7 of the Revised Penal
Code, which refer to other conditions of distress similar to those
precedingly enumerated therein, namely, "configuration, shipwreck,
earthquake, epidemic", such as the chaotic conditions resulting from
war or the liberation of the Philippines during the last World War.580

(3) The reason for the provision of this aggravating circumstance "is
found in the debased form of criminality met in one who, in the midst
of a great calamity, instead of lending aid to the afflicted adds to their
suffering by taking advantage of their misfortune to despoil them."581

h) Aid of armed men (qualifying).

i) Requisites:

(1) That armed men or persons 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.

ii) Concepts.

(1) The armed men present must take part, either directly or indirectly,
in the commission of the crime by the offender but it must not appear
that the offender and those armed men acted under the same plan
and for the same purpose as there will be conspiracy.582

(2) Aid of armed men or persons affording immunity requires that the
armed men are accomplices who take part in minor capacity, directly
or indirectly.583

580 People v. Arpa, et al., G.R. No. L-26789, April 25, 1969.
581 U.S. v. Rodriguez, 19 Phil. 150, 157.
582Gregorio, supra. Citing People v. Abaigar, 2 Phil. 417; People v. Piring, 63 Phil. 546; People v.

Candado, G.R. No. L-34089, August 1, 1978.

583 People v. Candado, et al., 84 SCRA 508 (1978).
 (3) There is aid of armed men even if the accused merely relied on their
aid as actual aid is not essential.584

(4) This circumstance is not present when it is shown that the accused
as well as those who cooperated with him in the commission of the
crimes in question acted under the same plan and for the same
purpose.585

i) Recidivism (generic).

i) Requisites:

(1) That the offender is on trial for an offense;

(2) That he was previously convicted by final judgment of another crime;
(3) That both the first and the second offenses are embraced in the
same title of the Code; and
(4) That the offender is convicted of the new offense.

ii) Concepts.

(1) 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.

(2) It is necessary that the first conviction must be by final judgment and
must take place prior to the second conviction. The second
conviction should not be for the offense committed before the
commission of the offense prior conviction.586

(3) The aggravating circumstance of recidivism should be taken into

consideration, notwithstanding the allegation and proof that the
accused were habitual delinquents and should accordingly be
sentenced to the additional penalty provided by law.587

(4) It is not correct to assume that recidivism is twice taken into account
when the accused is declared an habitual delinquent and when it is
deemed to aggravate the crime in fixing the principal penalty to be

584 Gregorio, supra., page. 133.

585 People v. Piring, et al., G.R. No. 45053, October 19, 1936.
586 People v. Baldera, 86 Phil. 189.
587 People vs. Melendrez, 59 Phil., 154.
 imposed, because recidivism as an aggravating circumstance
modifying criminal liability is not an inherent or integral element of
habitual delinquency which the Revised Penal Code considers as an
extraordinary and special aggravating circumstance.588

(5) For recidivism to exist, it is sufficient that the accused, on the date of
his trial, shall have been previously convicted by final judgment of
another crime embraced in the same title. For the existence of
habitual delinquency, it is not enough that the accused shall have
been convicted of any of the crimes specified, and that the last
conviction shall have taken place ten (10) years before the
commission of the last offense. It is necessary that the crimes
previously committed be prior to the commission of the offense with
which the accused is charged a third time or oftener.589

(6) Recidivism distinguished from habitual delinquency.

Recidivism Habitual Delinquency

The crimes are specified:
The crimes are embraced in the
Robbery, Theft, Estafa,
Crimes covered same title of the Revised Penal
Falsification, Serious or Less
Code.
Serious Physical Injuries
Conviction of any specified
crimes must take place within
Period No period required.
ten years from the date of last
conviction or release.
Number of There must be third conviction of
Two convictions only.
conviction the crimes specified.
Being a generic circumstance, it It cannot be offset by any
Offsetting
may be offset. mitigating circumstance.
If not offset, it increases the It provides for the imposition of
Effect
penalty. additional penalty

j. Reiteracion or Habituality (generic).

a. Requisites:

588 People v. Bernal, G.R. No. L-44988, October 31, 1936.

589 Ibid.
 i. The accused is on trial for an offense;
ii. He previously served sentence for another offense with an
equal or greater penalty than the new offense.
iii. He is convicted for the new offense.

b. Concepts.

i. There is habituality when the accused at the time of his trial

for an offense, had previously served a sentence for an
offense to which the law attaches an equal or greater than that
attached by law to the second offense, or for two or more
offenses, in which the law attaches a lighter penalty.590

ii. Recidivism distinguished from habituality.

Recidivism Habituality
Nature There is a previous The offender is previously
conviction. punished.
Crimes The crimes are embraced The crimes are not necessarily
covered in the same title of the embraced in the same title of
code. the code.
Effect Not always aggravating. Its
If present, it is always
appreciation depends upon the
aggravating.
sound discretion of the court.

iii. If the two offenses are embraced in the same title of the Code,
irrespective of whether the law attaches a greater penalty for
the first offense, recidivism and not reiteracion is present.591

k. Price, reward or promise (qualifying).

a. Requisites:

i. There must be two or more offenders, the one who gives or

offers the price, and the other who accepts it; and
ii. The price, reward or promise is given for the purpose of
inducing another to do the crime.

b. Concepts.

590 Ibid
591 Gregorio, supra., page 136.
 i. In this circumstance, there are two persons affected: the one
giving the price or reward and the one receiving it. The new
rule is it affects both the offeror and the receiver. The offeror
is principal by inducement while the receiver is principal by
direct participation.

ii. The inducement must be the primary consideration in the

commission of the crime as against the person induced.592 If
the money was given, without any previous promise, after the
commission of the crime as an expression of sympathy, this
circumstance is absent.593

l. By means of inundation or fire (qualifying).

a. Nature. The circumstance must be facilitated as a means to

accomplish the purpose.

b. Concepts.

i. This is the only aggravating circumstance that may constitute

as a crime itself.
ii. When the killing is perpetrated with treachery and by means
of explosives, the latter shall be considered as a qualifying
circumstance. Not only does jurisprudence support this view
but also, since the use of explosives is the principal mode of
attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will then
be relegated merely as a generic aggravating
circumstance.594

m. Evident premeditation (qualifying).

a. Requisites:

i. The time when the offender determined to commit the crime;

ii. An act manifestly indicating that the culprit has clung to his
determination; and

592 People v. Paredes, 24 SCRA 635.

593 U.S. v. Flores, 28 Phil. 29.
594 Malana v. People, G.R. No. 173612, March 26, 2008 citing People v. Tintero, G.R. No. L-

30435, February 15, 1982.

 iii. A sufficient lapse of time between the determination and
execution, to allow him to reflect on the consequences of his
act.595

b. Concepts.

i. The qualifying aggravating circumstance of evident

premeditation, like any other qualifying circumstance, must be
proved with certainty as the crime itself. A finding of evident
premeditation cannot be based solely on mere lapse of time
from the time the malefactor has decided to commit a felony
up to the time that he actually commits it.596

ii. The prosecution must adduce clear and convincing evidence

as to when and how the felony was planned and prepared
before it was effected.597 The prosecution is burdened to
prove overt acts that after deciding to commit the felony, the
felon clung to his determination to commit the crime. The law
does not prescribe a time frame that must elapse from the
time the felon has decided to commit a felony up to the time
that he commits it. Each case must be resolved on the basis
of the extant factual milieu.598

iii. Evident premeditation must be based on external facts

which are evident, not merely suspected, which indicate
deliberate planning. There must be direct evidence
showing a plan or preparation to kill, or proof that the
accused meditated and reflected upon his decision to kill
the victim. Criminal intent must be evidenced by
notorious outward acts evidencing a determination to
commit the crime. In order to be considered an
aggravation of the offense, the circumstance must not
merely be "premeditation" but must be "evident
premeditation."599

iv. Premeditation presupposes a deliberate planning of the crime

before executing it. The execution of the criminal act, in other

595 People v. Sison, 312 SCRA 792, 804 (1999).

596 People v. Piamonte, 303 SCRA 577 (1999).
597 People v. Patrolla, Jr., 254 SCRA 467 (1996).
598 People v. Baldogo, G.R. No. 128106-07, January 24, 2003.
599 People v. Abadies, 436 Phil. 98 (2002) cited in People v. Ordona, G.R. No. 227863,

September 2017.
 words, must be preceded by cool thought and reflection. As
here, there must be showing of a plan or preparation to kill, or
proof that the accused meditated and reflected upon his
decision to execute the crime.600

v. One hour from the time of determination up to the time of

execution has been held sufficient lapse of time.601

vi. Evident premeditation is inherent in crime against property. It

is not considered as an aggravating circumstance in crimes of
robbery because the same is inherent in the crime specially
where it is committed by various persons; they must have an
agreement, they have to meditate and reflect on the manner
of carrying out the crime and they have to act coordinately in
order to succeed. But in the crime of robbery with homicide, if
there is evident premeditation to kill besides stealing, it is
considered as an aggravating circumstance.602

vii. When it is not shown as to how and when the plan was
hatched or what time had elapsed before it was carried out,
evident premeditation cannot be considered.603

n. Craft, fraud or disguise (qualifying).

a. Requisites:

i. This circumstance is present if it is used to aid in the execution

of the criminal design.

b. Concepts.

i. Craft is a circumstance characterized by trickery or cunning

resorted to by the accused to carry out his design.604 Craft
involves intellectual trickery in order not to arouse suspicion.

ii. Fraud involves insidious words or machinations for direct

inducements.

600 People v. Guzman, G.R. No. 169246, January 26, 2007.

601 People v. Serna, 100 Phil. 1098.
602 People v. Valeriano, 90 Phil. 15.
603 People v. Julandia, Jr., 370 SCRA 448.
604 People v. Barrios, G.R. No. L-34785, July 30, 1979.
 iii. Disguise is used when resorting to any device will conceal
identity.

iv. Craft, fraud or disguise is a species of aggravating

circumstance that denotes intellectual trickery or cunning
resorted to by an accused to aid in the execution of his
criminal design or to lure the victim into a trap and to conceal
the identity of the accused. The fact that one of the appellants
has pretended to be a member of the New People's Army
does not necessarily imply the use of craft, fraud or disguise,
in the commission of the crime.605

v. It is settled that an aggravating circumstance should be

proven as fully as the crime itself in order to aggravate the
penalty.

vi. To be considered as an aggravating circumstance and

thereby resultantly increase the criminal liability of an
offender, the same must accompany and be an integral part
or concomitant of the commission of the crime specified in the
information; and although it is not necessarily an element
thereof, it must not be factually and legally discrete
therefrom.606

o. Superior strength or means to weaken defense (qualifying).

a. Requisites:

i. In superior strength, (1) there is deliberate intent to take

advantage of superior strength, (2) that there is evidence of
relative physical strength and notorious inequality of forces,
(3) the purpose is to overpower.
ii. In means to weaken defense, the purpose to weaken the
victim’s resisting power.
iii. This circumstance is applicable to crimes against persons
only.

b. Concepts.

605 People v. Quinanola, G.R. No. 126148, May 5, 1999.

606 People v. Medina, G.R. No, 127157, July 10, 1998.
 i. Abuse of superior strength is present whenever there is a
notorious inequality of forces between the victim and the
aggressor, assuming a situation of superiority of strength
notoriously advantageous for the aggressor selected or taken
advantage of by him in the commission of the crime.607

ii. The fact that there were two persons who attacked the victim
does not per se establish that the crime was committed with
abuse of superior strength, there being no proof of the relative
strength of the aggressors and the victim. The evidence must
establish that the assailants purposely sought the advantage,
or that they had the deliberate intent to use this advantage.608

iii. To take advantage of superior strength means to purposely

use excessive force out of proportion to the means of defense
available to the person attacked.609

iv. The appreciation of this aggravating circumstance depends

on the age, size, and strength of the parties.610 An attack
made by a man with a deadly weapon upon an unarmed and
defenseless woman constitutes an abuse of the aggressors’
superior strength.611

v. Means employed to weaken the defense can also be

characterized by suddenly casting sand on the eyes of the
victim and then wounding him.612

p. Treachery (qualifying).

a. Requisites:

i. The employment of means, method, or manner of execution

which will ensure the safety of the malefactor from defensive
or retaliating acts on the part of the victim, no opportunity

607 People v. Daquipil, 310 Phil. 327, 348 (1995).

608 People v. Escoto, 313 Phil. 785, 800-801 (1995).
609 People v. Ventura, G.R. Nos. 148145-46, July 5, 2004,
610 People v. Moka, G.R. No. 88838, April 26, 1991,
611 People v. Appegu, 379 SCRA 703 (2002).
612 People v. Siaotong, G.R. No. L-9242, March 29, 1957.
 being given to the latter to defend himself or to retaliate;613
and
ii. Deliberate or conscious adoption of such means, method, or
manner of execution.614

b. Concepts.

i. 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.

ii. This is applicable to crime is against persons only.

iii. The essence of treachery is that the attack comes without a

warning and in a swift, deliberate, and unexpected manner,
affording the hapless, unarmed, and unsuspecting victim no
chance to resist or escape.615

iv. An unexpected and sudden attack which renders the victim

unable and unprepared to put up a defense is the essence of
treachery.616 The essence of treachery lies in the suddenness
of the attack that leaves the victim unable to defend himself,
thereby ensuring the commission of the offense.617 It is the
suddenness of the attack coupled with the inability of the
victim to defend himself or to retaliate that brings about
treachery; consequently, treachery may still be appreciated
even if the victim was facing the assailant.618 Thus, there is
treachery when the assailants gunned down the victim while
the latter was preoccupied in the kitchen of his own abode
while getting dinner ready for the household. He was
absolutely unaware of the imminent deadly assault from
outside the kitchen, and was for that reason in no position to
defend himself or to repel his assailants.619

613 People v. Cleopas, 384 Phil. 286.

614 Ibid.
615 People v. Albarido, G.R. No. 102367, October 25, 2001,
616 People v. Agacer, G.R. No. 177751, December 14, 2011.
617 People v. Sanchez, G.R. No. 188610, June 29, 2010.
618 People v. Aguilar, 88 Phil 693 (1951).
619 People v. Villarico, et al., G.R. No. 158362, April 4, 2011.
 v. The mere suddenness of attack does not, of itself suffice for a
finding of alevosia if the mode adopted by the accused does
not positively tend to prove that they thereby knowingly
intended to insure the accomplishment of their criminal
purpose without any risk to themselves arising from the
defense that might be offered.620 The aggravating
circumstance of treachery is not present when decision to
attack was arrived at on the spur of the moment.621 Such
deliberate or conscious choice was held non-existent where
the attack was the product of an impulse of the moment.622

vi. However, in some cases, it was held that treachery cannot be

appreciated simply because the attack was sudden and
unexpected. Where the meeting between the accused and the
victim was casual and the attack was done impulsively, there
is no treachery even if the attack was sudden and
unexpected. As has been aptly observed the accused could
not have made preparations for the attack, and the means,
method and form thereof could not therefore have been
thought of by the accused, because the attack was
impulsively done.623 It cannot be presumed that treachery was
present merely from the fact that the attack was sudden. The
suddenness of an attack, does not of itself, suffice to support
a finding of alevosia, even if the purpose was to kill, so long
as the decision was made all of a sudden and the victim's
helpless position was accidental.624 Treachery cannot be
appreciated if the accused did not make any preparation to kill
the deceased in such manner as to insure the commission of
the killing or to make it impossible or difficult for the person
attacked to retaliate or defend himself.625

vii. An attack from behind is treachery. The attack on the victim

was characterized by treachery since the attack on the latter
was from behind thereby rendering the victim unable to
defend himself.626 When the accused stabbed the victim, the

620 People v. Torejas, 43 SCRA 158 (1972).

621 Perez v. Court of Appeals, 13 SCRA 444 (1965).
622 People v. Macalisang, 22 SCRA 699 (1968).
623 People v. Magallanes, 275 SCRA 222 (1997).
624 People v. Escoto, et al., G.R. No. 91756, May 11, 1995.
625 People v. Bautista, G.R. No. 254 SCRA 621 (1996).
626 People v. Danes, G.R. No. L-30487, August 24, 1984.
 latter was sitting on a bench watching the singing and dancing
during the Sinulog festival. The victim was engrossed in the
merrymaking when suddenly appellant stealthily stabbed him
from behind.627

viii. A frontal attack does not necessarily rule out treachery. The
qualifying circumstance may still be appreciated if the attack
was so sudden and so unexpected that the deceased had no
time to prepare for his or her defense.628

ix. In treachery, it is necessary that the victim must not have

known the peril he was exposed to at the moment of the
attack. Should it appear, however, that the victim was
forewarned of the danger he was in, and, instead of fleeing
from it he met it and was killed as a result, then the qualifying
circumstance of treachery cannot be appreciated.629
Treachery cannot be appreciated in instances when the victim
had the opportunity to flee or defend himself.630

x. In the absence of proof as to how the victims were killed,

treachery cannot be properly appreciated. The killings must
be considered as homicide only and not murder since the
circumstance qualifying the killings must be proven as
indubitably as the killings themselves.631 However, the killing
of a child is characterized by treachery even if the manner of
the assault is not shown because the weakness of the victim
due to her tender age results in the absence of any danger to
the accused.632

xi. Must treachery be present at the inception of the attack? For

treachery to be appreciated, it must be present at the
inception of the attack, and if absent and the attack is
continuous, even if present at a subsequent stage it is not to
be considered.633

627 People v. Rellon, G.R No. 74051, November 8, 1988.

628 People v. Perez, 404 Phil. 380, 382 (2001).
629 People v. Se, 469 Phil. 763, (2004).
630 People v. Discalsota, 430 Phil. 406 (2002).
631 People vs. Vicente, G.R. No. L-31725, February 18, 1986.
632 People v. Ganohon, 273 Phil. 672 (1991).
633 People v. Badon, et al., G.R. No. 126143, June 10, 1999.
 xii. The aggravating circumstance of abuse of superior strength
is absorbed in treachery and can no longer be appreciated
separately. In this connection, it bears stressing that when
treachery qualifies the crime to murder, the generic
aggravating circumstance of abuse of superior strength is
necessarily included in the former. Stated differently, when
treachery qualifies the crime to murder, it absorbs abuse of
superior strength and the latter can not be appreciated even
as a generic aggravating circumstance.634

q. Ignominy (qualifying).

a. Nature.

i. Ignominy is a circumstance pertaining to the moral order

which adds disgrace and obloquy to the material injury caused
by the crime.635 There is ignominy where the acts tend to
make the effects of the crime more humiliating or shameful.

ii. The clause "Which add ignominy to the natural effects of the
act" contemplates a situation where the means employed or
the circumstances tend to make the effects of the crime more
humiliating or to put the offended party to shame.636

iii. This is applicable to crimes against chastity, less serious

physical injuries, light or grave coercion, and murder.

b. Concepts.

i. There was ignominy because the accused used not only the
missionary position, i.e. male superior female inferior, but also
"The same position as dogs do" i.e., entry from behind. The
accused claims there was no ignominy because "The studies
of many experts in the matter have shown that this 'position'
is not novel and has repeatedly and often been resorted to by
couples in the act of copulation. This may well be if the sexual
act is performed by consenting partners but not
otherwise.There is ignominy in rape committed through “dog

634 People v. Fuertes, et al., G.R. Nos. 95891-92, February 28, 2000.
635 People v. Fuertes, et al., supra.
636 Ibid.
 style” position.637

ii. In a case, the Court held there was ignominy when the
accused forced the man to rape the victim, and laughed as
the latter was being raped by the man, and when they ordered
victim’s siblings to look at their naked sister after the accused
had raped her.638

r. Unlawful entry (qualifying).

a. Nature.

i. There is unlawful entry when the entrance is effected by a way

not intended for that purpose.

ii. One who acts without respect to walls erected by men to

guard their property and provide for personal safety, shows a
greater perversity and audacity. Hence, the law punishes him
with more severity.

b. Concepts.

i. To be aggravating, unlawful entry must be made for the

purpose of entrance and not for the purpose of escape. There
is unlawful entry when the accused destroyed the glass
blades or jalousies of a window in gaining entry into the
house.639

ii. The unlawful entry is made for the purpose of committing

crime. It is inherent in trespass to dwelling and robbery with
force upon things.640

s. Breaking wall, roof, floor, doors or windows (qualifying).

a. Nature and concepts.

i. This circumstance is used as a means to the commission of a

crime, or as a means to effect entrance.

637 People v. Saylan, 130 SCRA 159, 167 [1984].

638 People v. Cortezano, et al., G.R. No.123140, September 23, 2003.
639 People v. Galapia, G.R. No. L-39303, August 1, 1978.
640 Gregorio, supra.
 ii. It is inherent in the crime of robbery with force upon things.

t. Aid of minor or by means of motor vehicles (qualifying).

a. Concepts.

i. The minor is 15 years.

ii. A vehicle is used to furnish a quick means to commit the
crime, flight and concealment.

u. Cruelty (qualifying).

a. Requisites:

i. That the injury caused be deliberately increased by causing

other wrong;
ii. That the wrong be unnecessary for the execution of the
purpose of the offender; and
iii. Deliberate prolonging of the physical suffering.

b. Concepts.

i. For cruelty to be appreciated against the accused, it must be

shown that the accused, for his pleasure and satisfaction,
caused the victim to suffer slowly and painfully as he inflicted
on him unnecessary physical and moral pain. The crime is
aggravated because by deliberately increasing the suffering
of the victim the offender denotes sadism and consequently a
marked degree of malice and perversity.641

ii. Although the accused stabbed the victim several times, the
same could not be considered as cruelty because there was
no showing that it was intended to prolong the suffering of the
victim.642

iii. The mere fact of inflicting various successive wounds upon a

person in order to cause his death, no appreciable time
intervening between the infliction of one (1) wound and that of

641 People v. Cortez, G.R. No. 137050, July 11, 2001.

642 Ibid.
 another to show that he had wanted to prolong the suffering
of his victim, is not sufficient for taking this aggravating
circumstance into consideration.643

iv. It is error to appreciate the generic aggravating circumstance

of cruelty based solely on the fact that the victim was stabbed
thrice - cruelty cannot be appreciated in the absence of any
showing that the accused, for their pleasure and satisfaction,
caused the victim to suffer slowly and painfully and inflicted
on him unnecessary physical and moral pain.644

Aggravating circumstances under special penal laws.

Comprehensive Firearms and Ammunition Regulation Act ((RA 10591).

1) Use of loose firearm in the commission of the crime as an aggravating

circumstance.

a) Aggravating when the use of firearm is inherent in the commission of the

crime punishable under the RPC or other special laws subject to the
following conditions:

i) If the crime committed with the use of a loose firearm carries a maximum
penalty LOWER THAN that prescribed for illegal possession, the penalty
for ILLEGAL POSSESSION shall be imposed.

ii) If the crime committed with the use of a loose firearm is penalized with
a maximum penalty EQUAL to that imposed for illegal possession, the
penalty of PRISION MAYOR, minimum period shall be imposed IN
ADDITION to the penalty for the crime committed with the use of loose
firearm.

643 People v. Magayac, 330 SCRA 767 [2000].

644 People v. Sion, 277 SCRA 127.
The Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165).

1) Use of dangerous drug in the commission of crime is qualifying aggravating

circumstance.645

a) Importation of dangerous drugs (even for floral, decorative and

culinary purposes) and/or controlled precursors and essential chemicals.

i) If the importation was through the use of a diplomatic passport,

diplomatic facilities or any other means involving the offender’s official
status.
2) Sale, administration, delivery, distribution and transportation of dangerous
drugs.

a) Within 100 meters from a school;

b) If minors/mentally incapacitated individuals are used as runners, couriers
and messengers of drug pushers.
c) If the victim of the offense is a minor, or should a prohibited/regulated
drug involved in any offense under this section be the proximate cause of
the death of a victim thereof.

3) Maintenance of a den, dive, or resort where any controlled precursor

and essential chemical is sold or used.

a) Where a prohibited/regulated drug is administered, delivered, or sold to a

minor who is allowed to use the same in such place; or
b) Should a prohibited drug be the proximate cause of the death of the person
using the same in such den, dive or resort.

4) Manufacture of dangerous drugs and/or controlled precursors and essential

chemicals.

a) Any phase conducted in presence or with help of minors;

b) Established/undertaken within 100m of residential, business, church or
school premises;
c) Laboratory is secured/protected by booby traps;
d) Concealed with legitimate business operation;
e) Employment of practitioner, chemical engineer, public official or foreigner.

5) Manufacture or delivery of equipment, instrument, apparatus, and other

paraphernalia for dangerous drugs and/or controlled precursor and essential

645 Sec. 25, RA 9165.

 chemicals.

a) Use of a minor or a mentally incapacitated individual to deliver such

equipment, instrument, apparatus or other paraphernalia.
6) Possession of dangerous drugs, regardless of the degree of purity.

a) Party, social gathering, or in the proximate company of at least 2 persons,

regardless of quantity.

7) Possession apparatus and other paraphernalia fit for introducing dangerous

drugs into the body.

a) Party, social gathering, or in the proximate company of at least 2 persons.

8) Cultivation or culture of plants which are dangerous drugs or are sources

thereof.

a) The land is part of the public domain.

b) Organizes, manages or acts as financier.

Chapter Eight
ALTERNATIVE CIRCUMSTANCES

Alternative Circumstances
 Article 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.

1) Concepts.

a) Those which must be taken into consideration as aggravating or mitigating

circumstances according to the nature and effects of the crime, and other
conditions attending its commission.

b) Based on a strict interpretation, alternative circumstances are thus not

aggravating circumstances per se.646

c) However, in a dissenting opinion, Justice Romeo Callejo observed that

Article 14 of the Revised Penal Code is not the repository of all the
aggravating circumstance covered by Article 63 of the Revised Penal Code.
Absent any provision in Article 63 of the Revised Penal Code, excluding the
alternative aggravating circumstances under Article 15 of the Revised Penal
Code from the application thereof, such alternative aggravating
circumstances must be considered in graduating the penalty for quasi-
heinous crimes. It cannot be argued that simply because Article 14 of the
Revised Penal Code does not contain any provision similar to Article 13,
paragraph 10 of the Revised Penal Code, no other aggravating
circumstances exist in the Revised Penal Code. Article 14 of the Revised
Penal Code must be considered in relation to and not independent of Article
15 of the Revised Penal Code.647

646 People v. Orilla, G.R. Nos. 148939-40, February 13, 2004.

647 Concurring and Dissenting Opinion of Justice Romeo Callejo, Re.: People v. Orilla, Ibid.
2) Types of alternative circumstances:

a) Relationship.

i) Relationship is taken into consideration when the offended party is the:

(1) Spouse;
(2) ascendant;
(3) descendant;
(4) legitimate, natural or adopted brother or sister; or
(5) Relative by affinity in the same degree.
(6) Relationship of stepfather or stepmother and stepson or
stepdaughter is included by analogy as similar to ascendant or
descendant.648 But relationship between uncle and niece is not
included.

ii) Outside of these enumerations and consistent with the doctrine that
criminal laws must be liberally construed in favor of the accused, no
other relationship, kinship or association between the offender and the
victim may aggravate the imposable penalty for the crime committed.
The fact, then, that the offended party is the granddaughter or
descendant of appellants’ live-in partner cannot justify the imposition of
death upon the rapist.649

iii) When mitigating.

(1) Mitigating in crimes against property.

(2) In crimes of less serious physical injuries and if the offended party is
a relative of lower degree than the offender.

iv) When aggravating.

(1) In crimes against persons if the offended party is a relative of higher

degree, or when the offender and the offended party are relatives of
the same level.650

(2) In the crimes against chastity due to the nature of the crime.651

648 People v. Bersabal, 48 Phil. 439.

649 People v. Atop, G.R. Nos. 123303-05, February 10, 1998.
650 People v. Mercado, 51 Phil. 99.
651 People v. Porras, 58 Phil. 578.
 (3) In homicide and murder, when the offended party is a relative of
lower degree.

v) Not mitigating nor aggravating.

(1) In the crimes of parricide, adultery or concubinage, where

relationship is an element of the crime.

vi) When exempting.

(1) In the crimes of theft, estafa and malicious mischief.

(2) Accessories who conceal or destroy the body of the crime or effects
or instruments thereof, or harbour, conceal or assist in the escape of
the principal of the crime.652

(3) Physical injuries committed by one spouse/parent who caught his

wife/daughter in the act of committing sexual intercourse with other
person.653

vii) Concepts.

(1) The "circumstances pertinent" to the relationship must be alleged

in the information and duly proven in the trial. In the present case,
the Amended Information did not allege the "circumstances
pertinent" to the relationship of appellant and Remilyn and the
prosecution did not prove these circumstances during the trial.654

b) Intoxication.

i) Nature.

(1) Intoxication is meant that the offender’s mental faculties is affected

by drunkenness.

(2) Mere drinking of liquor prior to the commission of the crime does not

652 Article 20, RPC.

653 Article 247, Ibid.
654 People v. Orilla, supra.
 necessarily produce a state of intoxication.

ii) Rules.

(1) When mitigating - To be mitigating, it must be shown (1) that at the

time of the commission of the act, the accused has taken such
quantity of alcoholic drinks as to blur his reason and deprive him of
certain degree of control, and (2) that such intoxication is not habitual
or subsequent to the to the plan to commit the felony. 655 It must be
proved to the satisfaction of the court, and in the absence thereof, it
is presumed to be not habitual but accidental.656

(2) When aggravating - To be aggravating, there must be excessive and

habitual use or specific purpose to commit the crime by getting drunk,
otherwise, it will be mitigating.657

iii) Concepts.

(1) Ordinarily, intoxication may be considered either aggravating or

mitigating, depending upon the circumstances attending the
commission of the crime. Intoxication has the effect of decreasing
the penalty, if it is not habitual or subsequent to the plan to commit
the contemplated crime; on the other hand, when it is habitual or
intentional, it is considered an aggravating circumstance.658

(2) A person pleading intoxication to mitigate penalty must present proof

of having taken a quantity of alcoholic beverage prior to the
commission of the crime, sufficient to produce the effect of
obfuscating reason. At the same time, that person must show proof
of not being a habitual drinker and not taking the alcoholic drink with
the intention to reinforce his resolve to commit the crime.659

(3) Drug addiction is not an aggravating circumstance. Neither Article 14

of the same Code on aggravating circumstances nor Article 15 on
alternative circumstances, however, contain a provision similar to
Article 13(10).660

655 People v. Boduso, G.R. No. L-0440-51, September 30, 1974.

656 People v. Dacanay, et al., 105 Phil. 1265.
657 People v. Moral, 132 SCRA 474.
658 People v. Pinca, 318 SCRA 270 [1999]; People v. Tambis, 311 SCRA 430 [1999].
659 Ibid.
660 People v. Itchon, G.R. No. 134362, February 27, 2002.
 c) Degree of Instruction or Education.

i) Concepts.

(1) Lack of instruction is generally mitigating in all crimes except in the

crimes of murder because to kill is forbidden by natural law, robbery,
and rape.661

(2) It is not mitigating, if the offender is exceptionally intelligent and

mentally alert that he easily realizes the significance of his act.

(3) High degree of education is aggravating if the accused availed

himself or took advantage of it in committing the crime. E.g. A lawyer
who commits falsification or doctor who kills his victim by means of
poison.662

(4) Lack of instruction must be proved positively and directly and cannot
be based on mere deduction or inference.663

661 People v. Mutya, G.R. No. L-11255-56, September 30, 1959.

662 Gregorio, supra., page 171.
663 People v. Bernardo, CA 40 O.G. 1707.
 Chapter Nine
PERSONS CRIMINALLY LIABLE

Persons Criminally Liable

Article 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.

1) Who are criminally liable.

a) For grave or less grave felonies, the following are liable:

i) Principals.
ii) Accomplices.
iii) Accessories.

b) For light felonies:

i) Principals.
ii) Accomplices.

c) Rules relative to light felonies.

i) Light felonies are punishable only when consummated.

ii) Except when light felonies are committed against persons or property,
they are punishable even they are frustrated or attempted.
iii) But only principals and accomplices are liable. Accessories are not liable
even if for the crimes against persons or property.

2) Active and passive subjects of the crime.

a) The active subject is the criminal (offender);

b) The passive subject is the victim (or the injured party).
3) Natural and juridical persons.

a) As a rule, only natural persons are criminally liable.

b) Reasons:

i) The RPC requires that the offender should have acted with personal
malice or negligence.
ii) A juridical person cannot commit a crime in which a wilful purpose or a
malicious intent is required. It cannot be arrested and imprisoned.664
iii) Penalties like imprisonment and deprivation of liberty can only be
executed by natural persons.

c) When a juridical person is criminally liable.

i) General rule: If the crime is committed by a corporation or other juridical

entity, the directors, officers, employees or other officers thereof
responsible for the offense shall be charged and penalized for the crime,
precisely because of the nature of the crime and the penalty therefor. A
corporation cannot be arrested and imprisoned; hence, cannot be
penalized for a crime punishable by imprisonment.

ii) Exception: A corporation may be charged and prosecuted for a crime if

the imposable penalty is fine. Even if the statute prescribes both fine and
imprisonment as penalty, a corporation may be prosecuted and, if found
guilty, may be fined.665

d) Special penal laws which specifically provide for the criminal liability of
corporate officers.

i) Illegal recruitment (RA 8042, as amended by RA 10022).

(1) The crime of illegal recruitment can be committed by the officers

having ownership, control, management or direction of their business
who are responsible for the commission of the offense and the
responsible employees/agents thereof. 666

(2) An employee of a company or corporation engaged in illegal

recruitment may be held liable as principal, together with his

664 Ong v. Court of Appeals, 499 Phil. 691 (2003).

665 Ching v. Secretary of Justice, et al., G.R. No. 164317, February 6, 2006.
666 Sec. 6 ((Migrant Workers and Overseas Filipinos Act of 1995).
 employer, if it is shown that he actively and consciously participated
in illegal recruitment. Settled is the rule that the existence of the
corporate entity does not shield from prosecution the corporate agent
who knowingly and intentionally causes the corporation to commit a
crime. The corporation obviously acts, and can act, only by and
through its human agents, and it is their conduct which the law must
deter. The employee or agent of a corporation engaged in unlawful
business naturally aids and abets in the carrying on of such business
and will be prosecuted as principal if, with knowledge of the business,
its purpose and effect, he consciously contributes his efforts to its
conduct and promotion, however slight his contribution may be.667

(3) A mere secretary whose task is limited to hold and document

employment contracts from the foreign employers and who did not
entertain applicants and she had no discretion over how the business
was managed is not criminally liable under RA 8042.668

ii) Fencing (PD 1612) - If the fence is a partnership, firm, corporation or

association, the president or the manager or any officer thereof who
knows or should have known the commission of the offense shall be
liable.669

iii) Corporation Code of the Philippines (B.P. Blg. 68) – Corporations may
be fined for certain violations of the Code.

iv) Insurance Code (PD 612, as amended by RA 10607).

(1) Any person, company or corporation subject to the supervision and

control of the Commissioner who violates any provision of this Code,
for which no penalty is provided, shall be deemed guilty of a penal
offense.

(2) If the offense is committed by a company or corporation, the officers,

directors, or other persons responsible for its operation,
management, or administration, unless it can be proved that they
have taken no part in the commission of the offense.670

667 People v. Chowdury, G.R. Nos. 129577-80. February 15, 2000.

668 People v. Corpuz, G.R. No. 148198, October 1, 2003.
669 Sec. 4.
670 Sec. 442.
Principals

Article 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.

1) The following are considered principals:

a) Those who take a direct part in the execution of the act;

b) Those who directly force or induce others to commit it;
c) Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished.

2) Principals by direct participation.

a) Nature.

i) The principal by direct participation personally takes part in the

execution of the act constituting a crime.

ii) When two or more persons are principals by direct participation, the
following are the requisites:

(1) They participated in the criminal resolution;

(2) They carried out their plan and personally took part in its execution
by acts which directly tended to the same end.

b) Concepts671

i) Whenever there are two or more involved in a crime, it becomes

necessary to find out those who actually executed the act so that all may

671 More discussion on conspiracy under Article 8 of this book.

 be held equally liable. They are those who, participating in the criminal
design, proceed to carry out their plan and personally take part in its
execution by acts which directly tend to the same end.672

ii) In order to hold an accused guilty as co-principal by reason of

conspiracy, it must be established that he performed an overt act in
furtherance of the conspiracy, either by actively participating in the
actual commission of the crime, or by lending moral assistance to his
co-conspirators by being present at the scene of the crime, or by
exerting moral ascendancy over the rest of the conspirators as to move
them to executing the conspiracy.673

iii) Where there are several accused and conspiracy has been established,
the prosecution need not pinpoint who among the accused inflicted the
fatal wound.674

iv) Where conspiracy has been established, evidence as to who among the
accused rendered the fatal blow is not necessary. All the conspirators
are liable as co-principals regardless of the intent and character of their
participation because the act of one is the act of all.675

v) Conspiracy need not be proven by direct evidence. It may be inferred

from the conduct of the accused before, during and after the commission
of the crime, showing that they had acted with a common purpose and
design. Conspiracy may be implied if it is proved that two or more
persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their combined acts, though
apparently independent of each other were, in fact, connected and
cooperative, indicting a closeness of personal association and a
concurrence of sentiment. Conspiracy once found, continues until the
object of it has been accomplished and unless abandoned or broken up.
To hold an accused guilty as a co-principal by reason of conspiracy, he
must be shown to have performed an overt act in pursuance or
furtherance of the complicity. There must be intentional participation in
the transaction with a view to the furtherance of the common design and
purpose.676

672 People v. Ong Chiat Lay, 60 Phil. 788.

673 People v. Vasquez, et al., G.R. No. 123939, May 28, 2004.
674 People vs. Bernardo, 222 SCRA 502.
675 People vs. Magalang, 217 SCRA 571.
676 People v. Bisda, G.R. No. 140895, July 17, 2003.
 vi) Each conspirator is responsible for everything done by his confederates
which follows incidentally in the execution of a common design as one
of its probable and natural consequences even though it was not
intended as part of the original design. Responsibility of a conspirator is
not confined to the accomplishment of a particular purpose of conspiracy
but extends to collateral acts and offenses incident to and growing out
of the purpose intended. Conspirators are held to have intended the
consequences of their acts and by purposely engaging in conspiracy
which necessarily and directly produces a prohibited result, they are, in
contemplation of law, chargeable with intending that result. Conspirators
are necessarily liable for the acts of another conspirator unless such act
differs radically and substantively from that which they intended to
commit. 677

3) Principals by inducement.

a) Nature. Principals by inducement are those who directly force or induce

another to commit a crime.

b) Ways of inducement:

i) By directly forcing another to commit a crime:

(1) By using irresistible force; and

(2) By causing uncontrollable fear.
(3) In these cases, there is no conspiracy.
(4) The person using force or causing fear is the one liable.
(5) The actual perpetrator is criminally exempt under Article 12.

ii) By directly inducing another to commit a crime:

(1) By giving price, or offering reward or promise; and

(2) By using words of command.

c) By directly inducing another to commit a crime.

i) Requisites:

(1) Inducement be made directly with the intention of procuring the

677 Ibid.
 commission of the crime; and

(2) That such inducement be the determining cause of the said

commission by one induced.678

ii) Concepts.

(1) In this kind of principal, there are two (2) actors involved: the one
inducing is called principal by inducement and the one executing or
committing the crime is principal by direct participation.

(2) To constitute inducement, there must exist on the part of the induced
the most positive resolution and the most persistent effort to secure
the commission of the crime, together with the presentation to the
person induced of the very strongest kind of temptation to commit
the crime.679

(3) Inducement comprises reward, promise, command and pacto. With

respect to command, it must be the moving cause of the offense. 680
Inducement may be by acts of command, advice or through influence
or agreement for consideration.681

(4) The giving of price or reward is an aggravating circumstance under

Article 14 of the Revised Penal Code. It affects not only the person
who gave the price or reward but also the person who received it.
The offender who induced another to commit a crime for a price,
promise or reward is a principal by inducement.682 There is a
collective criminal responsibility. The aggravating circumstance can
only be appreciated against the principal by direct participation and
not against the principal by inducement.683

(5) With respect to words of command, both the inducer and the person
who committed the crime are collectively liable.684 The requisites are:

678 U.S. v. Indanan, 24 Phil. 203 (1913).

679 People v. Yanson-Dumancas, et al., G.R. Nos. 133527-58, December 13, 1999.
680 Gregorio, supra, page 181 citing People v. Gensola, et al., G.R. No. L-24491, September 30,

1969.
681 People v. Batin, G.R. No. 177223, November 28, 1997.
682 Gregorio, supra, page 137 citing People v. Alincastre, 40 SCRA 391, and People v. Otero, et

al., 51 Phil. 201.

683 Paňa v. Judge Buyser, et al., G.R. No. 130144, May 24, 2001.
684 U.S. v. Gamao, 23 Phil. 81.
 (a) That the one uttering the words of command must have the
intention of procuring the commission of the crime;
(b) That the one who made the command must have an ascendancy
or influence over the person who acted;
(c) That the words used must be so direct, so efficacious, so powerful
as to amount to physical or moral coercion;
(d) The words of command must be uttered prior to the commission
of the crime;
(e) The material executor of the crime as no personal reason to
commit the crime.685

(6) Before such act can be considered direct inducement, it is necessary

that such advice or such words have a great dominance and great
influence over the person who acts; it is necessary that they be as
direct, as efficacious, and as powerful as physical or moral coercion
or as violence itself. The phrases must be considered the principal
and moving cause of the effect produced, and the inducement must
precede the act induced and must be so influential in producing the
criminal act that without it the act would not have been performed.686

(7) Where the inducement offered by the accused is of such a nature

and made in such a way that it becomes the determining cause of
the crime, and such inducement was offered with the intention of
producing that result, then the accused is guilty by inducement of the
crime committed by the person so induced. The inducement to the
crime must be intentional on the part of the inducer and must be
made directly for the purpose in view. It is necessary to remember
only that the inducement must be made directly with the intention of
procuring the commission of the crime and that such inducement
must be the determining cause of the crime. 687

(8) The words of advice or the influence must have actually moved the
hands of the principal by direct participation.688 Words of command
of a father “Sige, banatan mo na” may induce his son to commit a
crime.689 The moral influence of the words of the father may
determine the course of conduct of a son in cases in which the same
words coming from a stranger would make no impression.690

685 Reyes, supra.

686 U.S. v. Indanan, supra.
687 Ibid.
688 People v. Batin, supra., at note 479.
689 Ibid.
690 People v. Tamayo, 44 Phil. 38, 57 (1922).
 However, when the father had uttered “patayin, patayin iran amen”
(kill them all) after his son had already hacked the victim, the
utterances could not have been the determining cause of the
commission of the crimes. The act clearly demonstrated his
concurrence in his sons’ aggressive design and lent support to their
nefarious intent and afforded moral and material support to their
attack against the victims. Thus, he is a mere accomplice.691

(9) Not all inducement falls within the purview of the law. A chance word
spoken without reflection, a wrong appreciation of a situation, an
ironical phrase, a thoughtless act, may give birth to a thought of, or
even a resolution to, crime in the mind of one for some independent
reason predisposed thereto without the one who spoke the word or
performed the act having any expectation that his suggestion would
be followed or any real intention that it produce a result.692

(10) The remark of the accused to "take care of the two" does not
constitute the command required by law to justify a finding that she
is guilty as a principal by inducement.693

(11) The utterance "Kill him and we will bury him" amounts but to
imprudent utterances said in the excitement of the hour or in the heat
of anger, and not, rather, in the nature of a command that had to be
obeyed.694

(12) If the act is not indispensable to the consummation of the crime,

or when there is doubt as to whether a guilty participant in the killing
has committed the role of a principal or that of an accomplice, the
court should favor the milder form of responsibility. 695

4) Principals by indispensable cooperation.

a) Nature. Those who cooperate in the commission of the offense by another

act without which it would not have been accomplished.

b) Requisites:

691 People v. Rafael, G.R. No. 123176, October 13, 2000.

692 Ibid.
693 People v. Yanson-Dimancas, supra.
694 People v. Agapinay, et al., supra.
695 People v. De Vera, G.R. No. 128966, August 18, 1999.
 i) Participation of the subject accused in the criminal resolution; and
ii) Performance by him of another act indispensable to the accomplishment
of the crime.696

c) Concepts.

i) To cooperate means to desire or wish in common a thing. The common

purpose does not necessarily mean previous understanding for it can be
inferred from the circumstances of each case.

ii) The participation of the accused was not indispensable to the

commission of the crime since the assailants could have located the
victims. There were others who could point to the whereabouts of the
victim. If the cooperation is not indispensable, the offender is only liable
as accomplice.697

iii) Examples.

(1) Providing the weapon or tools, or the key to open the building.
(2) Providing the mode of transportation to enable the accused to reach
the place of the scene of the crime.
(3) Dragging he victim to the place of execution.
(4) Leaving open the doors, giving the key to open the building.
(5) Holding on to a victim to preventing him victim from resisting or
drawing a weapon.

iv) There can be cooperation by negligence. One who, by acts of

negligence, cooperates in the commission of estafa through falsification
or malversation through falsification without which negligent acts the
commission of the crime would not have been accomplished.698

696 People v. Fronda, G.R. Nos. 102361-62, May 14, 1993.

697 Ibid.
698 Samson v. Court of Appeals, 103 Phil. 277.
Accomplices

Article 18. Accomplices. - Accomplices are those persons who, not

being included in Article 17, cooperate in the execution of the offense by
previous or simultaneous acts.

1) Nature. Accomplices are those, not being principals, who cooperate in the
execution of the offense by previous or simultaneous acts.

2) Requisites:

a) That there be a community of design, i.e., knowing that criminal design of

the principal by direct participation, he concurs with the latter in his purpose;

b) That he cooperates in the execution of the offense by previous or

simultaneous acts; and

c) That there must be a relation between the acts done by the principal and
those attributed to the person charged as accomplice.699

3) Concepts.

a) First, an accomplice is not part of the conspiracy.

b) Accomplices are known also as “accessories before the fact.

c) The participation of an accomplice is not indispensable. The previous acts

of cooperation by the accomplice should not be indispensable to the
commission of the crime; otherwise, she would be liable as a principal by
indispensable cooperation. The act of the accused in forcing the victim to
drink beer before the latter was raped by the co-accused was not
indispensable to the crime of rape. Hence, she should be held liable as an
accomplice.700

699 People v. Elijorde, G.R. No. 126531, April 21, 1999.

700 People v. Tampus, G.R. No. 181084, June 16, 2009.
 d) Participation is of minor character. To be convicted as such, it is necessary
that he be aware to the criminal intent of the principal and thereby
cooperates knowingly or intentionally by supplying material or moral aid for
the efficacious execution of the crime. A person is considered as an
accomplice if his role in the perpetration of the crime is of a minor character.

e) The acts performed by appellant are not, by themselves, indispensable to

the killing of the victims since the whereabouts of the latter could still be
ascertained not only by the accused but by the others.701

f) The accused is an accomplice when he merely looked for a jeep to be used

as getaway vehicle of the robbers and, to that end, he intentionally sought
out and convinced another to act as driver.702

g) The liability of one whose participation was limited to looking for a banca
and providing one to a gang of bank robbers,703 or one who went with the
actual perpetrators of a crime without conspiring with them, is only that of
an accomplice,704 or where the quantum of proof required to establish
conspiracy is lacking, the doubt created as to whether accused acted as
principal or accomplice will always be resolved in favor of the milder form of
liability, that of a mere accomplice.705

h) Moral encouragement. The utterance of the father “Patayin, patayin iran

amen! “ after his sons had already hacked the victim clearly demonstrated
his concurrence in their aggressive design and lent support to their
nefarious intent merely afforded moral and material support to their attack
against the victim. Thus, he is only an accomplice.706

i) Complicity. In the case of People v. Tamayo, et al.,707 the Court enunciated

this doctrine which means that criminal complicity in the character of an
accomplice necessarily reposes on knowledge of the criminal design on the
part of the principal and participation therein, and that a man cannot be an
accomplice in a crime without participating in the criminal design of the
principal. In this case, the trial court convicted five persons including Hilario,
Ramon, and Jose (all surnamed Tamayo) and two others for the death of

701 People v. Fronda, supra.

702 People v. Corbes, et al., G.R. No. 113470, March 26, 1997.
703 People v. Doble, G.R. No. L- 30028, 31 May 1982.
704 People v. Balili, G.R. No. L-14044, 5 August 1966.
705 People v. Bongo, G.R. No. L-26909, 22 February 1974.
706 People v. Rafael, surpa.
707 G.R. No. L-18289, November 17, 1922.
 Catalino. When a quarrel erupted between Catalino and Hilario, the latter
choked the former. Seeing this, Catalino’s brother, Francisco, ran to aid his
brother and succeeded in breaking Hilario and his brother. Ramon
approached Catalino and also held his neck. While in that situation, Jose
rushed and, while armed with bamboo stick, struck Catalino on the head.
Federico and Teodoro were standing nearby and shouting “sige, sige.” The
High Court modified the ruling sentencing Jose guilty of homicide and
acquitting Hilario, Teodoro, and Federico. Was Ramon a principal or
accomplice? To consider as accomplice, the test to be applied is: Whether
Ramon, in holding and choking the deceased when the latter was struck by
Jose, was acting in furtherance of the criminal design entertained against
the deceased by Jose. If yes, Ramon is collectively liable as principal with
Jose. If not, he is a mere accomplice. On the other hand, the utterance of
“sige, sige” does not make the utterer an accomplice. The mere
circumstance that a person, present at a quarrel, says aloud, so as to be
heard by one of the contending parties, "there you have them," "now they
are yours," "strike them," "this is the time," is not sufficient to fix complicity
upon such person as an accomplice in the crime of homicide, where other
facts show that the spokesman did not speak said words with the intention
that the person slain should be wounded. In this case, when Federico is
supposed to have used the expression "go ahead!" (¡sigue!), a mere assault
was being made, and it does not appear that he intended anything more
than that the deceased should receive a beating. It results that Federico
Tibunsay must also be absolved from complicity in the homicide.

j) It was held that as an essential condition to the existence of complicity that

there be not only a relation between the acts done by the principal and these
attributed to the person charged as an accomplice, but that the latter, with
knowledge of the criminal intent, cooperated with the intention of supplying
material or moral aid in the execution of the crime in an efficacious way. So
that there are two elements required, in accordance with the definition of
the term accomplice given in the Penal Code, in order that a person may be
considered an accomplice to a criminal act, namely, that he take part in the
execution of the crime by previous and simultaneous acts and that he intend
by said acts to commit or take part in the execution of the crime.708

k) Acting as a look out. Is look out an accomplice or conspirator? The following

doctrinal pronouncements will help in determining whether the offender,
who acted as look out, is an accomplice or conspirator:

i) Accused presence was not innocuous. Knowing that his co-accused

708 People vs. Tamayo, 44 Phil. 38.

 intended to kill the victim and that the three co-accused were carrying
weapons, he had acted as a lookout to watch for passersby. He was not
an innocent spectator; he was at the locus criminis in order to aid and
abet the commission of the crime. These facts, however, did not make
him a conspirator; at most, he was only an accomplice. Lack of complete
evidence of conspiracy, that creates the doubt whether they had acted
as principals or accomplices in the perpetration of the offense, impels
this Court to resolve in their favor the question, by holding that they were
guilty of the milder form of responsibility, i.e., guilty as mere
accomplices. Appellant De Vera knew that Kenneth Florendo had
intended to kill Capulong at the time, and he cooperated with the latter.
But he himself did not participate in the decision to kill Capulong; that
decision was made by Florendo and the others. He joined them that
afternoon after the decision to kill had already been agreed upon; he
was there because nagkahiyaan na.709

ii) The accused participated in the commission of the crime even before
complainant was raped. He was present when co-accused abducted
complainant and when he brought her to the barn. He positioned himself
outside the barn together with the other accused as a lookout. When he
heard the shouts of people looking for complainant, he entered the barn
and took complainant away from the rapist. Having known of the criminal
design and thereafter acting as a lookout, petitioner is liable as an
accomplice.710

iii) In People v. Corbes,711 the Court noted that Manuel Vergel knew of the
criminal design to commit a robbery, and that he cooperated with the
robbers by driving the vehicle to and from the crime scene. In convicting
him as an accomplice and not as a conspirator, the Court observed that
he was merely approached by one of the robbers who was tasked to
look for a getaway vehicle. He was not with the robbers when they
resolved to commit a robbery. When his services were requested, the
decision to commit the crime had already been made.

iv) In People v. Tatlonghari,712 the Court was asked to resolve the

responsibility of some appellants who knowingly aid[ed] the actual killers
by casting stones at the victim, and distracting his attention. The Court
ruled that they were accomplices and not co-conspirators, [i]n the

709 People v. De Vera, G.R. No. 128966, August 18, 1999.

710 Garces v. People, G.R. No. 173858, June 17, 2007.
711 270 SCRA 465.
712 27 SCRA 726.
 absence of clear proof that the killing was in fact envisaged by them.

v) In People v. Suarez et al.,713 Wilfredo Lara merely introduced the gang

of Reyes to Suarez who intended to perpetrate the crime with the help
of the said group. In ruling that he was merely an accomplice, the Court
noted that there was no evidence showing that he took part in the
planning or execution of the crime, or any proof indicating that he
profited from the fruits of the crime, or of acts indicative of confederacy
on his part.

vi) In People v. Balili,714 the Court convicted appellant as an accomplice,

holding that in going with them, knowing their criminal intention, and in
staying outside of the house with them while the others went inside the
store to rob and kill, [he] effectively supplied the criminals with material
and moral aid, making him guilty as an accomplice. The Court noted that
there was no evidence that he had conspired with the malefactors, nor
that he actually participated in the commission of the crime.

vii) In People v. Doble,715 the Court held that Cresencio Doble did not
become a conspirator when he looked for a banca that was eventually
used by the robbers. Ruled the Court: Neither would it appear that Joe
Intsik wanted to draft Crescencio into his band of malefactors that would
commit the robbery more than just asking his help to look for a banca.
Joe Intsik had enough men, all with arms and weapons to perpetrate the
crime, the commission of which needed planning and men to execute
the plan with full mutual confidence of each other, which [was] not shown
with respect to appellants by the way they were asked to look and
provide for a banca just a few hours before the actual robbery.

viii) In the following cases, a look out was considered to be a conspirator:

1) In People v. Castro,716 the Court convicted Rufino Cinco, together

with two others, as a principal, although he had acted merely as a
lookout. The Court held that their concerted action in going armed
and together to their victim’s house, and there, while one stayed as
a lookout, the other two entered and shot the mayor and his wife,
leaving again together afterwards, admits no other rational
explanation but conspiracy. It may be noted further that Cinco

713 267 SCRA 119.

714 17 SCRA 892
715 114 SCRA 131.
716 11 SCRA 699.
 executed a Sworn Statement that the three of them, together with
some others, had planned to kill the victim on the promise of a
P5,000 reward.

2) In People v. Tawat et al.,717 the lookout, Nestor Rojo, was convicted

as a principal for conspiring with two others. The Court ruled that the
conspiracy was shown by their conduct before, during and after the
commission of the crime. The Court also noted that, upon their arrest,
they disclosed that they had intended to rob the victims store and
that they did so in accordance with their plan. In that case, it was
clear that all three of them, including the lookout, were the authors of
the crime.

3) In People v. Loreno,718 the Supreme Court convicted all the accused

as principals because they had acted in band. In acting as a lookout,
Jimmy Marantal was armed at the time like the other conspirators,
and he gave his companions effective means and encouragement to
commit the crime of robbery and rape.

l) Distinctions between conspirators and accomplices.719

Conspirators Accomplices
Accomplices come to know
Conspirators know the
about it after the principals
criminal intention because
Knowledge of have reached the decision,
they themselves have
criminal intent and only then do they
decided upon such course
agree to cooperate in its
of action.
execution.
Accomplices do not decide
whether the crime should
Who decides the Conspirators decide that a
be committed; they merely
commission of crime should be
assent to the plan and
the crime. committed.
cooperate in its
accomplishment.
Accomplices are merely
Conspirators are the their instruments who
Participation
authors of a crime. perform acts not essential
to the perpetration of the

717 126 SCRA 362.

718 130 SCRA 311.
719 People v. De Vera, supra.
 offense.

m) To be convicted as such, it is necessary that he be aware of the criminal

intent of the principal and thereby cooperates knowingly or intentionally by
supplying material or moral aid for the efficacious execution of the crime.720
t is well settled that if there is ample of criminal participation but a doubt
exist as to the nature of liability, courts should resolve to favor the milder
form of responsibility, that of an accomplice. 721

n) Quasi-collective Criminal Responsibility. Some of the offenders in the crime

are principals and others are accomplices. But the criminal liability are not
the same. The criminal liability of principal is higher than that of accomplice.

o) May the liability of an accomplice be determined in the absence of trial of

the supposed principals? In Vino v. People of the Philippines and Court of
Appeals,722 it was held that the corresponding responsibilities of the
principal, accomplice, and accessory are distinct from each other. As long
as the commission of the offense can be duly established in evidence the
determination of the liability of the accomplice or accessory can proceed
independently of that of the principal.

720 People v. Fronda, G.R. No. 102361-62, May 14, 1993.

721 People v. Doctolero, 193 SCRA 632.
722 178 SCRA 626.
Accomplices under special penal laws (SPLs).

Human Security Act of 2007 (RA 9372).

1) Any person who, not being a principal under Article 17 of the Revised Penal
Code or a conspirator as defined in Section 4 hereof, cooperates in the
execution of either the crime of terrorism or conspiracy to commit terrorism
by previous or simultaneous acts shall be liable as an accomplice.

Anti-Trafficking in Person Act (RA 9208 as amended by RA 10364).

1) Whoever knowingly aids, abets, and cooperates in the execution of the

offense by previous or simultaneous acts defined in this Act shall be
punished in accordance with the provisions of Section 10(c) of this Act.

The Terrorism Financing Prevention and Suppression Act of 2012 (RA

10168).

1) Any person who, not being a principal under Article 17 of the Revised Penal
Code or a conspirator as defined in Section 5 hereof, cooperates in the
execution of either the crime of financing of terrorism or conspiracy to
commit the crime of financing of terrorism by previous or simultaneous acts
is liable as an accomplice.

Code of Conduct and Ethical Standards for Public Officials and Employees.
(RA 6713).

1) Private individuals who participate in conspiracy as co-principals,

accomplices or accessories, with public officials or employees, in violation
of this Act, shall be subject to the same penal liabilities as the public officials
or employees and shall be tried jointly with them.

Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042, as amended
by RA 10022

1) Illegal recruitment shall mean any act of canvassing, enlisting, contracting,

 transporting, utilizing, hiring, or procuring workers and includes referring,
contract services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the Philippines

2) The persons criminally liable for the above offenses are the principals,
accomplices and accessories.

Accessories

Article 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.

1) Nature. An accessory does not participate in the criminal design, nor cooperate
in the commission of the felony, but, with knowledge of the commission of the
crime, he subsequently takes part in three ways:

a) By profiting or assisting the offender to profit from the effects of the crime;
b) By concealing or destroying the body of the crime, the effects or instruments
of the crime in order to prevent discovery; and
c) By harbouring, concealing, or assisting in the escape or concealment of the
principal of the crime, provided he acts with abuse of his public functions,
OR the principal is guilty of treason, parricide, murder, or attempt to take
the life of the Chief Executive, or is known to be habitually delinquent. 723

2) Important principles to consider:

a) “Having knowledge” - An accessory must have knowledge of the

commission of the crime, and having that knowledge, he took part
subsequent to its commission. An accessory should not be in conspiracy
with the principal. He is not part of the conspiracy since his participation
comes only after the commission of the crime. Mere knowledge of the crime
is required. Knowledge of the commission of the crime may be established
by circumstantial evidence.724

b) “Commission of the crime” – the crime must be proved beyond reasonable

doubt.

c) “Without having participated therein either as principals or accomplices” –

accessory should not participate in the commission of the crime.

d) “Takes part subsequent to its commission” – the accessory takes part after
the crime has been committed.

3) Specific acts of accessory:

a) By profiting or assisting the offender to profit from the effects of crime.

723 People v. Verzola, et al., G.R. No. L-35022, December 21, 1977.
724 Mendoza v. People, G.R. No. L-46484, January 29, 1988.
 i) Two acts are punished:

i. By profiting themselves by the effects of the crime; or

ii. By assisting the offender to profit by the effects of the crime.

ii) To be considered as accessory, he must receive from the principal. If he

takes it without the consent of the principal, he is not an accessory but
a principal in the crime of theft or robbery, as the case may be.

iii) The accessory should materially benefit from the act. Riding in a stolen
vehicle is not considered “profiting” since it does not improve his
economic condition. Profiting is not synonymous with intent to gain as
element of theft.725

iv) The accessory should not take the property without the consent of the
principal. He must receive the property from the principal. He should not
take it without the consent of the principal. If he took it without the
consent of the principal, he is not accessory but principal in the crime of
theft.726

v) Fencing. In accessories for the crimes of robbery and theft, there is a

special law (PD 1612) and the penalty is heavier. Fencing is the act of
any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy
and sell, or in any manner deal in any article, item, object or anything of
value which he knows, or should be known to him, to have been derived
from the proceeds of the crime of robbery or theft.

vi) The accessory in the crimes of robbery and theft could be prosecuted
as such under the Revised Penal Code or under P.D. No. 1612.
However, in the latter case, the accused ceases to be a mere accessory
but becomes a principal in the crime of fencing. Otherwise stated, the
crimes of robbery and theft, on the one hand, and fencing, on the other,
are separate and distinct offenses.727

vii) The State may thus choose to prosecute him either under the Revised
Penal Code or P. D. No. 1612, although the preference for the latter
would seem inevitable considering that fencing is malum prohibitum and

725 Gregorio, supra. citing People v. Morales, (CA) 71 O.G. 529 (1974).
726 Reyes, supra.
727 People v. de Guzman, 227 SCRA 64 (1993).
 the law prescribes a higher penalty based on the value of the property
728

viii) Mere possession of any goods, article, item, object, or anything of value
which has been the subject of robbery or thievery is prima facie
evidence of fencing.729

ix) The law on fencing does not require the accused to have participated in
the criminal design to commit, or to have been in any wise involved in
the commission of, the crime of robbery or theft.730

x) In PD 532, there is aiding or abetting of pirates or brigands when a

person who knowingly acquires or receives property taken by such
pirates or brigands or in any manner derives any benefit therefrom. The
offender however is not accessory but as an accomplice.

b) By concealing or destroying the body of crime or the effects or instrument

thereof to prevent its discovery.

i) To conceal or destroy the body of the crime includes all manner of

interfering with, or altering the original conditions of the crime scene, or
of anything therein which may be considered as evidence, prior to a
completion of the evidence gathering by the law enforcers.

i. Examples:

(a) Changing the position of the body of the victim;

(b) Placing a weapon or removing one or replacing a weapon;
(c) Throwing pieces of evidence as cigarettes butts;
(d) Washing off the blood stains or cleaning the crime scene;
(e) Placing a suicide note;
(f) Making unnecessary foot prints.

ii) The subject may be the body of the crime, the effects, or instrument
thereof.

i. Body of the crime refers to the corpus delicti. Corpus delicti refers to
the fact of the commission of the crime charged or to the body or

728 Tan v. People, G.R. No. 134298, August 26, 1999.

729 Ibid.
730 People vs. de Guzman, supra.
 substance of the crime.731 It does not refer to the ransom money in
the crime of kidnapping for ransom or to the body of the person
murdered.732 To prove the corpus delicti, it is sufficient for the
prosecution to be able show that (1) a certain fact has been proven
-- say, a person has died or a building has been burned; and (2) a
particular person is criminally responsible for the act.733

ii. Examples of effects or instruments of crime.

(a) Effects. A person who received personal property knowing that it

had been stolen for the purpose of concealing the same.

(b) Instruments. A person who received a knife knowing it was used

in the crime of homicide and concealed it.

iii) To be punishable as accessory, the act must be done to prevent the

discovery of the crime. The body was left at the foot of the stairs at a
place where it was easily visible to the public. Under such circumstances
there could not have been any attempt on the part of the accused to
conceal or destroy the body of the crime.734

iv) There is no accessory when the offender took away the truck used in
illegal possession of lumber (under PD 705). In order to be considered
as accessory, the act of concealing or destroying the body of the crime,
the effects or instruments thereof must be for the purpose of preventing
its discovery. When the crime has already been discovered and the truck
was taken, the offender can no longer be charged as accessory but he
is liable for obstruction of justice under PD 1829.735

c) By harboring, concealing or assisting in the escape of the principal of the

crime.

i) Two classes of accessories:

i. Public officers who harbor, conceal, or assist in the escape of the

principal of the any crime (not a light felony) who abuse their public
functions; or

731 Rimorin v. People, G.R. No. 146481, April 30, 2003.

732 Ibid.
733 People v. Boco, 38 Phil. 341.
734 People v. Versola, et al., supra at note 525.
735 Padiernos v. People, G.R. No. 181111, August 17, 2015.
 ii. Private persons who harbor, conceal, or assist in the escape of the
author of the specific crime (treason, parricide, murder, or attempt to
take the life of the Chief Executive, or known to be habitually
delinquent.)

ii) First class of accessory. The accessory here is a public officer who
abuses his public functions.

i. Requisites:

(a) a public officer;

(b) he harbours, conceals, or assists in the escape of principal;
(c) he acts with abuse of public functions;
(d) the crime committed by the principal is any crime which is not light
felony.

iii) Second class of accessory. The accessory here is a private person.

i. Requisites:

(a) the accessory is a private person;

(b) he harbours, conceals, or assists in the escape of the author of
the crime; and
(c) the crime committed is either treason, murder, parricide, an
attempt to take the life of the Chief Executive, or the principal is
known to be habitually guilty of some other crime.

iv) The Revised Penal Code does not penalize a person who harbors,
conceals or assists in the escape of an author of a crime other than
those specifically enumerated therein – treason, parricide, murder, or an
attempt on the life of the President. The Code does not penalize private
persons who harbor, conceal or assist in the escape of the author of
crimes other than those mentioned thereunder. However, he is still
criminally liable under PD 1829 (Obstruction of Justice), the act of
harboring or concealing, or facilitating the escape of any person he
knows or has reasonable ground to believe or suspect, has committed
any offense under existing penal laws in order to prevent his arrest,
prosecution and conviction.

v) Distinctions between accessory under the RPC and offender under PD

1829.
 Revised Penal Code Obstruction of
Accessory Justice
The offender is not
The offender is merely
an accessory. He is
accessory who is either:
a principal in the
Offender (a) Public officer (who
offense for violation
abuses public functions) or
of PD 1829.
a private individual
If the accessory is public
officer, any crime committed
by the principal.
If by person person, only the Any crime under the
crimes of treason, parricide, RPC or offense
Crimes committed
murder, murder, attempt to under special penal
take the life of the Chief laws.
Executive, or is known to be
habitually guilty of some
other crime.
It is not necessary
that the principal be
It is required that the
convicted first. The
principal be declared guilty
Conviction person can be
of any of the specified
charged without the
crimes.
principal having
been convicted.

Nature Malum in se Malum prohibitum

vi) Evasion of arrest is not a violation of PD 1829. The failure on the part
of the arresting officer/s to arrest the person of the accused makes the
latter a fugitive from justice and is not equivalent to a commission of
another offense of obstruction of justice.736

d) Concepts applicable to three situations.

i) Apprehension and conviction of the principal is not necessary for the

accessory to be held criminally liable. Thus, even if the principal is
unknown or at large, the accessory may be held criminally liable
provided the requisites prescribed by law for the existence of a crime
are present and someone committed it. The same rule applies if the trial

736 Angeles v. Gaite, et al., G.R. No. 165276, November 25, 2009.
 of the principal has not yet terminated. The accessory may be held for
trial since the corresponding responsibilities for principal, accomplice, or
accessory are distinct from each other.

ii) When the principal is acquitted, may the accessory be convicted?

i. In the U.S. v. Villaluz et al.,737a case involving the crime of theft, the
Court ruled that notwithstanding the acquittal of the principal due to
the exempting circumstance of minority or insanity (Article 12,
Revised Penal Code), the accessory may nevertheless be convicted
if the crime was in fact established.

ii. In U.S. v. Mendoza,738 where this Court held in an arson case that
the acquittal of the principal must likewise result in the acquittal of
the accessory where it was shown that no crime was committed
inasmuch as the fire was the result of an accident. Hence, there was
no basis for the conviction of the accessory.

iii. Where the crime and the responsibility of the accused as accessory
are established, the accessory can be convicted notwithstanding the
acquittal of the principal.739

iii) Does death of the principal who is charged with murder before trial
extinguish the liability of the accessory? Yes, because had he been
alive, he would have been found guilty of homicide.

Accessories Exempt from Criminal Liability

Article 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.

1) General rule. As a rule, an accessory is exempt from criminal prosecution when

the principal is his:

737 32 Phil. 377 (1915).

738 23 Phil. 194 (1912).
739 Vino v. People, G.R. No. 84163 October 19, 1989.
 a) Spouse;
b) Ascendant;
c) Descendant;
d) Legitimate, natural, and adopted brother and sister;
e) Relative by affinity within the same degree.

2) Exception. Even if the principal is his spouse, ascendant, descendant, brother

or sister, or relative by affinity within the same degree, accessory is criminally
liable if he has performed any acts under Paragraph 1, Article 19:

a) By profiting themselves; or
b) By assisting the offender to profit by the effects of the crime.

3) Basis. It is based on 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 the above-quoted article.740

4) Illustration. Since Ruby’s act of driving the car where the corpse of Michelle
was hidden, her resistance to stop the car when chased by the police and to
immediately open the luggage compartment as requested by the police, her act
of lying to the police by claiming that the box in the compartment contained only
dirty clothes, and her refusal to open said box sufficiently indicate knowledge
of the crime and assistance to Ruth in concealing the corpus delicti to prevent
its discovery. Ruby is an accessory to the murder committed by her sister, Ruth.
However, under Article 20 of the Code, she is exempt from criminal liability
since they are sisters.741

Accessories under special penal laws (SPLs).

Human Security Act of 2007 (RA 9372).

1) Any person who, having knowledge of the commission of the crime of

terrorism or conspiracy to commit terrorism, and without having participated
therein, either as principal or accomplice under Articles 17 and 18 of the
Revised Penal Code, takes part subsequent to its commission in any of the
following manner:

a) by profiting himself or assisting the offender to profit by the effects of

the crime;
b) by concealing or destroying the body of the crime, or the effects, or

740 People v. Mariano, et al., G.R. No. 134847, December 6, 2000 (per curiam).
741 Ibid.
 instruments thereof, in order to prevent its discovery;
c) by harboring, concealing, or assisting in the escape of the principal
or conspirator of the crime.

2) 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 subparagraph (a).

Anti-Torture Act of 2009 (RA 9745).

1) Any public officer or employee shall be liable as an accessory if he/she has

knowledge that torture or other cruel, inhuman and degrading treatment or
punishment is being committed and without having participated therein, either
as principal or accomplice, takes part subsequent to its commission in any of
the following manner:

a) By themselves profiting from or assisting the offender to profit from

the effects of the act of torture or other cruel, inhuman and degrading
treatment or punishment;

b) By concealing the act of torture or other cruel, inhuman and

degrading treatment or punishment and/or destroying the effects or
instruments thereof in order to prevent its discovery; or

c) By harboring, concealing or assisting m the escape of the principal/s

in the act of torture or other cruel, inhuman and degrading treatment
or punishment: Provided, That the accessory acts are done with the
abuse of the official's public functions.

Anti-Enforced or Involuntary Disappearance Act of 2012 (RA 10353)

1) Enforced or involuntary disappearance refers to the arrest, detention,

abduction or any other form of deprivation of liberty committed by agents of
the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which places such person outside the protection of the
law.

2) The penalty of reclusion temporal and its accessory penalties shall also be
imposed upon persons who, having knowledge of the act of enforced or
 involuntary disappearance and without having participated therein, either as
principals or accomplices, took part subsequent to its commission in any of
the following manner:

a) By themselves profiting from or assisting the offender to profit from

the effects of the act of enforced or involuntary disappearance;

b) By concealing the act of enforced or involuntary disappearance

and/or destroying the effects or instruments thereof in order to
prevent its discovery; or

c) By harboring, concealing or assisting in the escape of the principal/s

in the act of enforced or involuntary disappearance, provided such
accessory acts are done with the abuse of official functions.

Anti-Trafficking in Person Act (RA 9208, as amended by RA 10364).

1) Trafficking in Persons – (a) refers to the recruitment, obtaining, hiring,

providing, offering, transportation, transfer, maintaining, harboring, or receipt
of persons with or without the victim’s consent or knowledge, within or across
national borders by means of threat, or use of force, or other forms of
coercion, abduction, fraud, deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person for the purpose of exploitation which includes at a minimum,
the exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the removal or sale
of organs.

2) The recruitment, transportation, transfer, harboring, adoption or receipt of a

child for the purpose of exploitation or when the adoption is induced by any
form of consideration for exploitative purposes shall also be considered as
‘trafficking in persons’ even if it does not involve any of the means set forth
in the preceding paragraph.

3) Accessories. Whoever has the knowledge of the commission of the crime,

and without having participated therein, either as principal or as accomplices,
take part in its commission in any of the following manners:

a) By profiting themselves or assisting the offender to profit by the

effects of the crime;

b) By concealing or destroying the body of the crime or effects or

 instruments thereof, in order to prevent its discovery;

c) By harboring, concealing or assisting in the escape of the principal

of the crime, provided the accessory acts with abuse of his or her
public functions or is known to be habitually guilty of some other
crime.

The Terrorism Financing Prevention and Suppression Act of 2012 (RA

10168).

1) Any person who, having knowledge of the commission of the crime of

financing of terrorism but without having participated therein as a principal,
takes part subsequent to its commission:

a) by profiting from it or by assisting the principal or principals to profit

by the effects of the crime, or

b) by concealing or destroying the effects of the crime in order to

prevent its discovery, or

c) by harboring, concealing or assisting in the escape of a principal of

the crime shall be guilty as an accessory to the crime of financing of
terrorism.

Code of Conduct and Ethical Standards for Public Officials and Employees.
(RA 6713).

1) Private individuals who participate in conspiracy as co-principals,

accomplices or accessories, with public officials or employees, in violation of
this Act, shall be subject to the same penal liabilities as the public officials or
employees and shall be tried jointly with them.

Migrant Workers and Overseas Filipinos Act of 1995 (RA 8042, as amended
by RA 10022).

1) Illegal recruitment shall mean any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring, or procuring workers and includes referring,
contract services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the Philippines.
 2) The persons criminally liable for the above offenses are the principals,
accomplices and accessories.

Chapter Ten
MULTIPLE OFFENDERS/HABITUAL OFFENDERS

Multiple Offenders/Habitual Offenders

1) Nature and concept.

a) A habitual offender, repeat offender or career criminal is a person convicted

of a new crime who was previously convicted of a crime(s).742 A repeat
offender is a person who has already been convicted for a crime, and who
has been caught again for committing the crime and breaking the law for
which he had been prosecuted earlier.743 A habitual offender is person who
has been convicted of a crime several times. The term “habitual offender”
may imply that the person has been convicted of the same crime many
times, but it may also refer to a person who has many convictions for
different crimes on their record.744

b) In the Philippine setting, it has been held that in order that an accused may
be legally deemed an habitual criminal, it is necessary that he should have
been convicted three times of any of the crimes enumerated in the law, or
of three such crimes, and that the second crime was committed after the
first conviction, and the third after the second conviction, then, in order to
apply the additional penalty for the fourth commission of crime, he must also
have been convicted or have served the sentence for the third crime, and

742 https://en.wikipedia.org/ 13 June 2018.

743 https://definitions.uslegal.com/ 13 June 2018.
744 https://www.legalmatch.com/law-library/13 June 2018.
 so on.745

c) When an habitual criminal, after serving as additional penalty again commits

several crimes, whether at the same time or one after another, he thereby
shows that the additional penalty attached to the principal penalty to which
he has been sentenced, and which he has served was not enough to reform
him. In committing new crimes, his mental and moral perversity was not
greater when he committed the second that when he committed the first
crime, nor when he committed the third than when he committed the
second, whether he did so simultaneously or successively. 746

d) Kinds of multiple offenders:

Recidivism;
Habituality (Reiteracion);
Quasi-recidivism;
Habitual Delinquency.

i) Recidivism.

(1) Nature. In recidivism or reincidencia, the offender shall have

been previously convicted by final judgment of another crime
embraced in the same title of the Revised Penal Code. In recidivism,
it is required that the subsequent conviction must be for an offense
committed before the offense involved in the prior conviction.747

(2) Basis: This is based on the greater perversity of the offender as

shown by his inclination to crimes.748

(3) Provision: Article 14, par. (9), Revised Penal Code. “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.”

(4) Requisites:

(a) That the offender is on trial for an offense;

745 People v. Santiago, G.R. Nos. L-32456-57, November 14, 1930.

746 Ibid.
747 Reyes, supra. page 393.
748 Ibid.
 (b) That he was previously convicted by final judgment of another
crime;

(c) That both the first and second offenses are embraced in the same
title of the Code;

(d) That the offender is convicted of the second offense.

(5) Concepts.

(a) It is enough that there must be at least 2 convictions. The first

conviction must be by final judgment and must take place prior to
the second conviction.

(b) Both convictions must be embraced in the same title of the Code.

(c) It is a generic aggravating circumstance which can be offset by

ordinary mitigating circumstance.749

(d) It must always be alleged and charged in the information, and

must be proven during the trial in order to be appreciated.750

(6) Effect

(a) As a generic aggravating circumstance, it has the effect of

increasing the penalty for the crime to its maximum period, but it
cannot increase the same to the next higher degree.751

ii) Habituality (Reiteracion).

(1) Nature. In reiteracion, the offender shall have been punished

previously 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. Unlike in reincidencia, the offender in reiteracion commits a
crime different in kind from that for which he was previously tried and
convicted.752

(2) Basis: This is based on the greater perversity of the offender as

shown by his inclination to crimes.

749 Palaganas v. People, G.R. No. 165483, September 12, 2006.

750 Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure.
751 Ibid.
752 People v. Real, G.R. No. 93436, March 24, 1995.
 (3) Provision: Article 14, par. 10, Revised Penal Code. “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.”

(4) Requisites:

(a) That the accused is on trial for an offense;

(b) That he previously served sentence for an offense to which the

law attaches an equal or greater penalty, or for two or more
crimes to which it attaches lighter penalty than that for the new
offense; and

(c) That he is convicted for the new offense.

(5) Concepts.

(a) It is essentially that the offender be previously punished or has

served the sentence for an offense in which the law provides for
an EQUAL OR GREATER penalty than that attached by law to
the second offense, or for two or more offenses, in which the law
attaches a lighter penalty.

(b) It requires the offender to have served the sentence.

(c) It is a generic aggravating circumstance which can be offset by

an ordinary mitigating circumstance. However, it is not always
aggravating as the court has discretion to consider it depending
on the circumstances.

(d) It must always be alleged and charged in the information, and

must be proven during the trial in order to be appreciated.

(6) Effect

(a) If considered, it has the effect of increasing the penalty for the
crime to its maximum period, but it cannot increase the same to
the next higher degree.

iii) Quasi-Recidivism.
 (1) Nature. Quasi-recidivism is a special aggravating circumstance
where a person, after having been convicted by final judgment, shall
commit a new felony before beginning to serve such sentence, or
while serving the same.

(2) Basis: The severe penalty imposed on a quasi-recidivist is justified

because of the offender’s perversity and incorrigibility. 753

(3) Provision: Article 160, Revised Penal Code. “Besides the

provisions of Rule 5 of Article 62, any person who shall commit
a felony after having been convicted by final judgment, before
beginning to serve such sentence, or while serving the same,
shall be punished by the maximum period of the penalty
prescribed by law for the new felony.

Any convict of the class referred to in this article, who is

not a habitual criminal, shall be pardoned at the age of seventy
years if he shall have already served out his original sentence,
or when he shall complete it after reaching the said age, unless
by reason of his conduct or other circumstances he shall not be
worthy of such clemency.”

(4) Requisites:

(a) The offender is convicted by final judgment of a felony or an

offense; and

(b) He commits another felony before beginning to serve such

sentence or while serving the same.

(5) Concepts.

(a) The first conviction must pertain to either a felony or an offense.

The second crime must be a felony (not an offense).

(b) The essence of this circumstance is that the second felony is

committed while the offender is about to serve or while serving
the first sentence.

(c) This is a special aggravating circumstance. It must always be

alleged and charged in the information, and must be proven

753 People v. Peralta, et al., G.R. No. L-19069, October 29, 1968.
 during the trial in order to be appreciated. Moreover, it cannot be
offset by an ordinary mitigating circumstance.754

(6) Effect.

(a) This has the effect to increasing the penalty for the new felony to
its maximum period, but the same cannot increase the penalty to
the next higher degree.

iv) Habitual Delinquency

(1) Nature.

(a) A person shall be deemed to be habitually delinquent, if within a

period of ten years from the date of his release or last conviction
of the crime of serious physical injuries or less serious physical
injuries, robbery, theft, estafa, or falsification, he is found guilty of
any of said crimes a third time or oftener.755

(b) The purpose is to prevent those who for the second time or more
commit the crimes from relapsing thereafter at least during the
period fixed thereby.756

(c) Habitual delinquency is not a crime. It is simply a fact or

circumstance which, if present in a given case with the other
circumstances enumerated in rule 5 of said article, gives rise to
the imposition of the additional penalties therein prescribed.757

(d) Provision: Article 62, par. (5), Revised Penal Code. “Habitual
delinquency shall have the following effects:

(i) 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;

(ii) 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

754 Palaganas v. People, supra.

755 People v. Bernal, G.R. No. L-44988, October 31, 1936.
756 People v. De Jesus, G.R. No. L-45198, October 31, 1936.
757 Ibid.
 mayor in its minimum and medium periods; and

(iii) 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 serious physical injuries,
robo, hurto, estafa or falsification, he is found guilty of
any of said crimes a third time or oftener.

(2) Requisites:

(a) There must be at least three convictions, the third conviction to

take place within 10 years from his last release or last conviction;

(b) The crimes are specified: robbery, theft, estafa, falsification,

serious or less serious physical injuries;

(c) Each conviction must take place within ten years from the last
conviction or release.

(3) Concepts.

(a) May recidivism be appreciated at the same with habitual

delinquency? Yes, because recidivism as an aggravating
circumstance modifying criminal liability is not an inherent or
integral element of habitual delinquency. Recidivism is not a
factor or element which necessarily forms an integral part of
habitual delinquency.758 The elements as well as the basis of
each of these circumstances are different. For recidivism to exist,
it is sufficient that the accused, on the date of his trial, shall have
been previously convicted by final judgment of another crime

758 People v. Bernal, supra.

 embraced in the same title. For the existence of habitual
delinquency, it is not enough that the accused shall have been
convicted of any of the crimes specified, and that the last
conviction shall have taken place ten (10) years before the
commission of the last offense. It is necessary that the crimes
previously committed be prior to the commission of the offense
with which the accused is charged a third time or oftener.759

(b) A habitual delinquent is necessarily a recidivist 760 because

recidivism requires only two convictions of crimes embraced in
the same title. The crimes involved in habitual delinquency are
classified under three titles, to wit: crimes against property
(robbery, theft, and estafa), crimes against persons (serious or
less serious physical injuries) and crime against public interest
(falsification).

(c) However, a recidivist does not necessarily follow a habitual

delinquent because the latter requires at least three convictions.

(d) In averring habitual delinquency in the information, it is required

that (a) the dates of the commission of his previous crimes, (b)
the dates of his convictions, and (c) those of his release for
service of sentence must be stated so as to avoid the
inconveniences.761

(e) Special (or extraordinary) aggravating circumstance.762 It must be

alleged in the information and proven during trial.

(4) Effect.

(a) It provides for the imposition of additional penalty such as:

(i) On the third conviction – prision correcional in its medium and

maximum periods;
(ii) On the fourth conviction – prision mayor in its minimum and
medium periods;
(iii) On the fifth or additional convictions – prision mayor in its
maximum period to reclusion temporal in its minimum period;
(iv) In no case, the total penalties to be imposed shall not exceed

759 Ibid.
760 People v. Tolentino, et al., G.R. No. L-48740, August 5, 1942.
761 People v. Tapel, G.R. No. 45220, September 18, 1936.
762 People v. Bernal, supra.
 30 years.

(5) Distinctions.

Quasi Habitual
Recidivism Reiteracion
Recidivism Delinquency
Previous
punishment or Crimes are
service of sentence Offender specified:
of an offense with previously robbery, theft,
Involves two
equal or greater convicted by estafa,
Situation convictions
penalty than the final falsification,
of crimes.
second offense, or judgement serious or less
for two or more light with offense. serious physical
offenses which have injuries.
lighter penalty.
There must be at
least 3
The crimes convictions, the
He commits a
must be last conviction to
Requires the felony before
embraced in take place within
offender to have he has served
Requisite the same 10 years from last
served the penalty the penalty, or
title of the conviction or
of the first offense. while serving
Revised release (each
the same.
Penal Code. conviction to take
place within 10
years.)
Cannot be
Mere
offset by
generic Not always
ordinary Cannot be offset;
aggravating aggravating; court
mitigating imposition of
circumstanc has discretion to
Effect circumstance; additional
e; increases apply; increases the
punished by penalty.
the penalty penalty to maximum
maximum
to maximum period.
period of the
period.
penalty new
 felony.

Chapter Eleven
PLURALITY OF CRIMES

Plurality of Crimes

1) Concepts.

a) Plurality of crimes consists in the successive execution by the same

individual of different criminal acts upon any of which no conviction has yet
been declared.
b) There is plurality of crimes or (concurso de delitos) when the actor commits
various delictual acts of the same or different kind.763
c) Compared with recidivism. In plurality of crimes, there are no convictions
yet of the crimes involved. In recidivism, the offender has already been
convicted of the first crime.

2) Classification of plurality of crimes:

a) Formal/Ideal plurality. Ideal plurality occurs when a single act gives rise to
various infractions of law. This is illustrated by Article 48 of the Revised
Penal Code which states: (a) when a single act constitutes two or more
grave or less grave felonies (compound crime); and (b) when an offense is
a necessary means for committing another offense (complex proper).764

b) Real/Material plurality. Real plurality arises when the accused performs an

act or different acts with distinct purposes and resulting in different crimes
which are juridically independent.765

i) Kinds of formal/ideal plurality of crimes:

(1) Complex crime;

(2) Special complex crimes; and
(3) Continued crimes.

763 Gamboa, et al., v. CA, G.R. No. L-41053, November 28, 1975.
764 Ibid.
765 Ibid.
3) Complex crimes

Article 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.

(1) Concept and basis.

(a) Under Article 48 of the Revised Penal Code, 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. Although two or more crimes
are actually committed, they constitute only one crime in the eyes
of the law as well as in the conscience of the offender. Hence,
there is only one penalty imposed for the commission of a
complex crime.766

(b) The underlying philosophy of complex crimes in the Revised

Penal Code, which follows the pro reo principle, is intended to
favor the accused by imposing a single penalty irrespective of the
crimes committed. The rationale being, that the accused who
commits two crimes with single criminal impulse demonstrates
lesser perversity than when the crimes are committed by different
acts and several criminal resolutions.767

(c) Article 48 is a procedural device allowing single prosecution of

multiple felonies falling under either of two categories: (1) when a
single act constitutes two or more grave or less grave felonies
(thus excluding from its operation light felonies); and (2) when an
offense is a necessary means for committing the other. The
legislature crafted this procedural tool to benefit the accused who,
in lieu of serving multiple penalties, will only serve the maximum
of the penalty for the most serious crime.768

(d) In a complex crime, although two or more crimes are actually

committed, they constitute only one crime in the eyes of the law
as well as in the conscience of the offender. Hence, there is only

766 People v. Gaffud, G.R. No. 168050, September 19, 2008.

767 Ibid.
768 Ivler v. Hon. Modesto-San Pedro, G.R. No. 172176, November 17, 2010.
 one penalty imposed for the commission of a complex crime.769

(2) Kinds of complex crimes:

(a) Compound crime - when a single act constitutes two or more

grave or less grave felonies.

(b) Complex crime proper - when an offense is a necessary means

for committing the other.

(3) Compound crime.

(a) The classic example of the first of kind is when a single bullet
results in the death of two or more persons, or the single act of
throwing a grenade resulting in the death of another person and
injuring four others produced the complex crime of murder and
multiple attempted murders.770 In another case, it was held
there was complex crime when the offender hurled a grenade
into the bedroom of the victims causing the death of three
persons and injuries to one person which constituted the
complex crime of multiple murder and attempted murder.771

(b) The single act of burning the house of the victim, with the main
objective of killing the latter and his daughter, resulting in their
deaths resulted the single act of accused-appellant in the
complex crime of double murder.772

(c) The single act by appellant of detonating a hand grenade may

quantitatively constitute a cluster of several separate and distinct
offenses, yet these component criminal offenses should be
considered only as a single crime in law on which a single penalty
is imposed because the offender was impelled by a single
criminal impulse which shows his lesser degree of perversity.773

(d) There is complex crime if the killing was the result of a single
impulse, which was induced by the order of the leader to fire, and
continued with the intention to comply therewith, as the firing

769 People v. Gaffud, supra.

770 People v. Guillen, 85 Phil. 307.
771 People v. Carpo, et al., G.R. No. 132676, April 4, 2001.
772 People v. Gaffud, supra.
773 People v. Comadre, G.R. No. 153559, June 8, 2004.
 stopped as soon as the leader gave the order to that effect. There
was no intent on the part of the offenders either to fire at each
and every one of the victims as separately and distinctly from
each other. It has been held that if the act or acts complained of
resulted from a single criminal impulse, it constitutes a single
offense.774

(e) The single act of accused in burning the house of his aunt
which resulted in her death and her partner produced the
complex crime of double murder.775

(f) However, a single act of pressing the trigger of an automatic rifle

is not a complex crime. The offender knew that, in view of the
special characteristic of automatic machine gun, there are as
many offenses as the numbers of victims of the bullets fired.
Although the burst of shots was caused by one single act of
pressing the trigger of the Thompson sub-machine gun, in view
of its special mechanism, the person firing it has only to keep
pressing the trigger with his finger and it would fire continually.
Hence, it is not the act of pressing the trigger which should
produce the several felonies, but the number of bullets which
actually produced them.776

(g) When various victims expire from separate shots, such acts
constitute separate and distinct crimes. For Article 48 to apply,
there must be singularity of criminal act; not singularity of
criminal impulse because it is not written into the law. Thus,
where the six defendants, with others (armed with pistols,
carbines and also a submachine gun and Garand rifles), fired
volleys into a house killing eleven and wounding several others,
each of the said accused is "guilty of as many crimes of murder
as there were deaths.777

(h) If there is no conspiracy, and it is impossible to ascertain the

individual deaths caused by each and everyone of the accused,
then there is complex crime.778

774 People v. Lawas, G.R. No. L-7618-20, June 30, 1955.

775 People v. Mercado, G.R. No. 218702, October 17, 2017.
776 People v. Desierto, (C.A.) 45 O.G. 4542 (1942).
777 Ibid.
778 People v. Lawas, supra.
 (i) Article 48 of the Revised Penal Code is not applicable because
the death of each of the five persons who were killed by appellant
and the physical injuries inflicted upon each of the two other
persons injured were not caused by the performance by the
accused of one simple act as provided for by said article.
Although it is true that several successive shots were fired by the
accused in a short space of time, yet the factor which must be
taken into consideration is that, to each death caused or physical
injuries inflicted upon the victims, corresponds a distinct and
separate shot fired by the accused, who thus made himself
criminally liable for as many offenses as those resulting from
every single act that produced the same. Although apparently he
perpetrated a series of offenses successively in a matter of
seconds, yet each person killed and each person injured by him
became the victim, respectively, of a separate crime of homicide
or frustrated homicide.779

(j) Article 48 is not applicable to acts punished under Article 365 of

the Revised Penal Code. Meaning, acts punished under the said
article could not be complexed and should be prosecuted under
one information only regardless of their number and severity. 780

(4) Complex crime proper.

(a) Nature. The second part of Article 48 deals with complex crime
proper. This refers to a situation that the offender commits a crime
to insure and facilitate the commission of another crime. The first
crime is resorted to give way to another crime.

(b) Requisites:

(i) That at least two offenses are committed:

(ii) That one or some of the offenses must be necessary to
commit the other; and
(iii) That both or all the offenses must be punished under the
same statute.

(c) Concepts.

779 People v. Tabaco, G.R. No. 100382-385, March 9, 1997, citing People v. Desierto, C.A. 45 O.G.
4542 [1948].
780 Ivler v. San Pedro, supra.
 (i) The two crimes must be punished by the same statute
otherwise, there is no complex crime.781 A felony cannot be
complexed with a special penal law.

(ii) The phrase “necessary means” has been interpreted not to

mean “indispensable means” because if it did, then the
offense as a necessary means to commit another would be
an element of the crime.782 This means that the offense is
committed to facilitate the commission of the other.

(iii) There is no complex crime if the means (crime) is already

defined by law as crime. e.g. where the killing was committed
by means of fire or explosion, there is no complex crime of
arson with homicide. The crime is plainly murder.

(iv) There is no complex crime of arson with homicide. When fire

is used with the intent to kill a particular person who may be
in a house and that objective is attained by burning the house,
the crime is murder only. When the Penal Code declares that
killing committed by means of fire is murder, it intends that fire
should be purposely adopted as a means to that end. There
can be no murder without a design to take life. In other words,
if the main object of the offender is to kill by means of fire, the
offense is murder. But if the main objective is the burning of
the building, the resulting homicide may be absorbed by the
crime of arson. If the objective is to kill and arson is resorted
to as a means to cover up the killing, the offender may be
convicted of two separate crimes of either homicide or murder,
and arson.783

(v) In the complex crime of forcible abduction with rape, any

subsequent intercourse is a separate crime. In the first act of
rape, the crime of forcible abduction is already consummated,
so that each of the succeeding rape is a separate crime.

(vi) There is no complex crime when trespass to dwelling is a

direct means to commit a grave felony. Trespass shall be
treated as aggravating circumstance of unlawful entry.

(vii) There is no complex crime if one offense is committed in

781 People v. Araneta, 49 Phil. 650.

782 People v. Hernandez, 99 Phil. 515.
783 People v. Cedenio, G.R. No. 93485, June 27, 1994.
 order to conceal the other.

(viii) There is no complex crime if one of the offenses is penalized

by special law. The exception is when the special law so
provides, e.g. carnapping with homicide.

(ix) When two or more crimes are committed but not by a single
act or one is not necessary means for committing the other,
there is no complex crime. e.g. the accused compelled the
pilot to change the course of flight, and when the pilot refused,
shot the latter. 2 crimes: frustrated coercion and murder.

(x) There is no complex crime of rebellion with murder. Murder is

inherent or thus absorbed in rebellion if the killing was for
political purpose.

(xi) There is no complex crime of estafa through falsification of

private document because damage is an element common to
both crimes.784

4) Special Complex Crimes (Composite Crimes)

(1) Concept and basis.

(a) Where the law provides a single penalty for two or more
component offenses, the resulting crime is called
a special complex crime.785 It is composed of two or more crimes
but is treated by law as a single indivisible and unique offense for
being the product of one criminal impulse.786 It is not of the same
legal basis as nor subject to the rules on complex crime in Article 48
of the Revised Penal Code, since it does not consist of a single act
giving rise to two or more grave or less grave felonies (compound
crimes) nor do they involve an offense being a necessary means
to commit another (complex crime proper). Just like the regular
complex crimes, only a single penalty is imposed for each of such
composite crimes although composed of two or more offenses.787

(b) Distinguished from complex crimes. Composite crime is a specific

crime with a specific penalty provided by law, and is to be

784 People v. Dizon, (CA) 48 O.G. 168.

785 People v. Larraňaga, 466 Phil. 324.
786 People v. Esugon, G.R. No. 195244, June 22, 2015.
787 People v. Barros, G.R. Nos. 101107-08, June 27, 1995.
 distinguished from a compound or complex crime under Article
48 of the Revised Penal Code. It is truly distinct and different from
a complex or compound crime. In a composite crime, the
composition of the offenses is fixed by law, but in a complex or
compound crime, the combination of the offenses is not specified
but generalized, that is, grave and/or less grave, or one offense
being the necessary means to commit the other. In a composite
crime, the penalty for the specified combination of crimes is
specific, but in a complex or compound crime the penalty is that
corresponding to the most serious offense, to be imposed in the
maximum period. A light felony that accompanies the commission
of a complex or compound crime may be made the subject of a
separate information, but a light felony that accompanies a
composite crime is absorbed.788

(c) In a special complex crime, the prosecution must necessarily

prove each of the component offenses with the same precision
that would be necessary if they were made the subject of
separate complaints.789

(d) Some of the special complex crimes under the Revised Penal
Code are (a) robbery with homicide, (b) robbery with rape,
(c) kidnapping with serious physical injuries, (d) kidnapping with
murder or homicide, and (e) rape with homicide.

(2) Examples of special complex crimes:

(a) Robbery with homicide.

(i) Elements: (1) The taking of personal property belonging to

another; (2) with intent to gain; (3) with the use of violence or
intimidation against a person; and (4) on the occasion or by
reason of the robbery, the crime of homicide, as used in its
generic sense, was committed.790

(ii) In robbery with homicide, the original criminal design of the

malefactor is to commit robbery, with homicide perpetrated on
the occasion or by reason of the robbery. The intent to commit
robbery must precede the taking of human life. The
homicide may take place before, during or after the robbery.

788 People v. Esugon, supra.

789 People v. Larraňaga, supra.
790 People v. Sugan, G.R. No. 192789, March 23, 2011.
 It is only the result obtained, without reference or distinction
as to the circumstances, causes or modes or persons
intervening in the commission of the crime that has to be taken
into consideration. There is no such felony of robbery with
homicide through reckless imprudence or simple negligence.
The constitutive elements of the crime, namely, robbery with
homicide, must be consummated.791

(iii) It is immaterial that the death would supervene by mere

accident; or that the victim of homicide is other than the victim
of robbery, or that two or more persons are killed, or that aside
from the homicide, rape, intentional mutilation, or usurpation
of authority, is committed by reason or on the occasion of the
crime. Likewise, immaterial is the fact that the victim of
homicide is one of the robbers; the felony would still be
robbery with homicide. Once a homicide is committed by or
on the occasion of the robbery, the felony committed is
robbery with homicide. All the felonies committed by reason
of or on the occasion of the robbery are integrated into one
and indivisible felony of robbery with homicide. The word
homicide is used in its generic sense. Homicide, thus,
includes murder, parricide, and infanticide.792

(iv) Robbery with homicide is a composite crime with its own

definition and special penalty in the Revised Penal Code.
There is no special complex crime of robbery with murder
under the Revised Penal Code. Here, treachery forms part of
the circumstances proven concerning the actual commission
of the complex crime. Logically it could not qualify the
homicide to murder but, as generic aggravating circumstance,
it helps determine the penalty to be imposed.793

(b) Rape with homicide.

(i) Elements. In a special complex crime of rape with homicide,

the following elements must concur: (1) the accused had
carnal knowledge of a woman; (2) carnal knowledge of a
woman was achieved by means of force, threat or
intimidation; and (3) by reason or on occasion of such carnal

791 People v. De Leon, G.R. No. 179943, June 26, 2009.

792 Ibid.
793 People v. Macabales, G.R. No. 111102, December 8, 2000.
 knowledge by means of force, threat or intimidation, the
accused killed a woman794

(ii) Both rape and homicide must be established beyond

reasonable doubt.795 The term homicide is to be understood
in its generic sense, and includes murder and slight physical
injuries committed by reason or on occasion of the
rape.796 Hence, even if any or all of the circumstances
(treachery, abuse of superior strength and evident
premeditation) alleged in the information have been duly
established by the prosecution, the same would not qualify the
killing to murder and the crime committed by appellant is still
rape with homicide.797

(c) Robbery with rape.

(i) Elements: To be convicted of robbery with rape, the following

elements must concur: (1) the taking of personal property is
committed with violence or intimidation against persons; (2)
the property taken belongs to another; (3) the taking is
characterized by intent to gain or animus lucrandi; and (4)
the robbery is accompanied by rape.798

(ii) For a conviction of the crime of robbery with rape to stand, it

must be shown that the rape was committed by reason or on
the occasion of a robbery and not the other way around. This
special complex crime under Article 294 of the Revised Penal
Code contemplates a situation where the original intent of the
accused was to take, with intent to gain, personal property
belonging to another and rape is committed on the occasion
thereof or as an accompanying crime.799

(iii) This felony contemplates a situation where the original

intent of the accused was to take, with intent to gain,
personal property belonging to another, and rape is
committed on the occasion thereof or as an
accompanying crime. In other words, the offenders had

794 People v. Nanas, 415 Phil. 683.

795 Diega v. Court of Appeals, G.R. Nos. 173510 and 174099, March 15, 2010.
796 People v. Nanas, G.R. No. 137299, August 21, 2001.
797 People v. Laog, G.R. No. 178321, October 5, 2011.
798 People v. Suyu, G.R. No. 170191, August 16, 2006.
799 People v. Tamayo, 434 Phil. 642.
 an intent to rob personal property belonging to another,
and such intent preceded the rape. If the original plan was
to rape but the accused after committing the rape also
committed the robbery when the opportunity presented
itself, the offense should be viewed as separate and
distinct; if the intention of the accused was to rob, but
rape was committed even before the asportation, the
crime is robbery with rape. The rape must be
contemporaneous with the commission of the robbery.
Article 294 of the RPC does not distinguish whether the
rape was committed before, during or after the robbery;
it suffices that the robbery was accompanied by rape.800

(iv) There is no crime of Robbery with attempted rape (under Art.

48) because a robbery cannot be a necessary means to
commit attempted rape. Or Article 294 (as a special complex
crime) only punishes a consummated rape. If both homicide
and rape were committed in the course of robbery, the crime
is Robbery with homicide, rape is a mere aggravating
circumstance.801

(d) Kidnapping with murder or homicide/serious physical injuries.

(i) Elements: (a) the offender is a private individual; (b) he

kidnaps or detains another, or in any manner deprives the
latter of his liberty; (c) the act of detention or kidnapping must
be illegal; and (d) in the commission of the offense, any of the
following circumstances is present: (1) the kidnapping or
detention shall have lasted for more than three days; (2) it is
committed by simulating public authority; (3) any serious
physical injuries shall have been inflicted upon the person
kidnapped or detained or threats to kill him are made; or (4)
the person kidnapped or detained is a minor, female or public
officer 802 and on the occasion thereof the victim dies or is
killed or is subjected to torture or dehumanizing acts.

(ii) This amendment introduced in our criminal statutes the

concept of 'special complex crime' of kidnapping with murder
or homicide. It effectively eliminated the distinction drawn by

800 People v. Remobio, G.R. No. 227705, October 11, 2017.

801 People v. Ganal, 85 Phil 743.
802 People v. Jacalne, G.R. No.168552, October 3, 2011.
 the courts between those cases where the killing of the
kidnapped victim was purposely sought by the accused, and
those where the killing of the victim was not deliberately
resorted to but was merely an afterthought. Consequently, the
rule now is: Where the person kidnapped is killed in the
course of the detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be
complexed under Article 48, nor be treated as separate
crimes, but shall be punished as a special complex crime
under the last paragraph of Art. 267, as amended by RA No.
7659.803

(e) Kidnapping with rape.

(i) Elements: (a) the offender is a private individual; (b) he

kidnaps or detains another, or in any manner deprives the
latter of his liberty; (c) the act of detention or kidnapping must
be illegal; and (d) in the commission of the offense, any of the
following circumstances is present: (1) the kidnapping or
detention shall have lasted for more than three days; (2) it is
committed by simulating public authority; (3) any serious
physical injuries shall have been inflicted upon the person
kidnapped or detained or threats to kill him are made; or (4)
the person kidnapped or detained is a minor, female or public
officer 804 and on the occasion thereof the victim is raped.

(ii) When the victim is killed or dies as a consequence of the

detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be
imposed. This provision gives rise to a special complex
crime. This arises where the law provides a single penalty for
two or more component offenses. Notably, however, no
matter how many rapes had been committed in the special
complex crime of kidnapping with rape, the resultant crime is
only one kidnapping with rape. This is because these
composite acts are regarded as a single indivisible offense as
in fact R.A. No. 7659 punishes these acts with only one single
penalty. In a way, R.A. 7659 depreciated the seriousness of
rape because no matter how many times the victim was

803 People v. Ramos, G.R. No. 118570, October 12, 1998.

804 People v. Jacalne, supra.
 raped, like in the present case, there is only one crime
committed the special complex crime of kidnapping with rape.
However, for the crime of kidnapping with rape, as in this
case, the offender should not have taken the victim with lewd
designs, otherwise, it would be complex crime of forcible
abduction with rape. In People v. Garcia, it was held that if the
taking was by forcible abduction and the woman was raped
several times, the crimes committed is one complex crime of
forcible abduction with rape, in as much as the forcible
abduction was only necessary for the first rape; and each of
the other counts of rape constitutes distinct and separate
count of rape.805

(f) Carnapping with homicide. The elements of carnapping: 1. That

there is an actual taking of the vehicle; 2. That the vehicle belongs
to a person other than the offender himself; 3. That the taking is
without the consent of the owner thereof; or that the taking was
committed by means of violence against or intimidation of
persons, or by using force upon things; and 4. That the offender
intends to gain from the taking of the vehicle.806 The prosecution
has to prove the essential requisites of carnapping and of the
homicide or murder of the victim, and more importantly, it must
show that the original criminal design of the culprit was
camapping and that the killing was perpetrated "in the course of
the commission of the carnapping or on the occasion thereof " In
other words, to prove the special complex crime of camapping
with homicide, there must be proof not only of the essential
elements of carnapping, but also that it was the original criminal
design of the culprit and the killing was perpetrated in the course
of the commission of the camapping or on the occasion
thereof.807

5) Continued Crimes/Continuing Crimes.

(1) Concepts.

(a) A continued or continuing crime is a single crime consisting of

series of acts arising from one criminal resolution and is therefore
not a complex crime.808

805 People v. Mirandilla, G.R. No. 186417, July 27, 2011.

806 People v. Bernabe, et al,, 448 Phil. 269 (2003).
807 People v. Donio, G.R. No. 212815, March 1, 2017.
808 Gregorio, supra.
 (b) This is a single crime consisting of a series of acts arising from a
single criminal resolution or intent not susceptible of division.
When the actor, there being unity of purpose and of right violated,
commits diverse acts, each of which, although of a delictual
character, merely constitutes a partial execution of a single
particular delict, such concurrence or delictual acts is called a
"delito continuado". In order that it may exist, there should be
"plurality of acts performed separately during a period of time;
unity of penal provision infringed upon or violated and unity of
criminal intent and purpose, which means that two or more
violations of the same penal provision are united in one and the
same intent leading to the perpetration of the same criminal
purpose or aim.809

(c) According to Cuello Calon, for delito continuado to exist there

should be a plurality of acts performed during a period of time;
unity of penal provision violated; and unity of criminal intent or
purpose, which means that two or more violations of the same
penal provisions are united in one and same instant or resolution
leading to the perpetration of the same criminal purpose or aim.810

(d) According to Guevarra, in appearance, a delito

continuado consists of several crimes but in reality there is only
one crime in the mind of the perpetrator.811 Padilla views such
offense as consisting of a series of acts arising from one criminal
intent or resolution.812

(e) Delito continuado is applicable to special penal laws.813

(2) Examples of continuing crimes.

(a) The theft of 13 cows belonging to two different owners committed

by the accused at the same time and at the same period of time.
814

809 Gamboa, et al. v. CA, supra.

810 II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.
811 Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippine

Criminal Law, p. 152).

812 Criminal Law, 1988 ed. pp. 53-54.
813 People v. Sabbun, 10 SCRA 156 (1964).
814 People v. Tumlos, 67 Phil. 320 (1939).
 (b) The theft of six roosters belonging to two different owners from
the same coop and at the same period of time.815

(c) The theft of two roosters in the same place and on the same
occasion.816

(d) The illegal charging of fees for services rendered by a lawyer

every time he collects veteran's benefits on behalf of a client, who
agreed that the attorney's fees shall be paid out of said
benefits.817 The collection of the legal fees were impelled by the
same motive, that of collecting fees for services rendered, and all
acts of collection were made under the same criminal impulse.818

(e) The act of approving thirty two (32) applications filed by

unqualified aliens under the Alien Legalization Program
constituted one crime only. The approval of the application or the
legalization of the stay of the 32 aliens was done by a single
stroke of the pen, as when the approval was embodied in the
same document. Technically, there was only one crime that was
committed. The 32 amended information charged what is known
as delito continuado.819

(3) There is no continuing crime in the following:

(a) Two estafa cases, one of which was committed during the period
from January 19 to December 1955 and the other from January
1956 to July 1956.820 The said acts were committed on two
different occasions.

(b) Several malversations committed in May, June and July, 1936,

and falsifications to conceal said offenses committed in August
and October 1936. The malversations and falsifications "were not
the result of only one purpose or of only one resolution to
embezzle and falsify."821

(c) Two estafa cases, one committed in December 1963 involving

815 People v. Jaranillo, 55 SCRA 563 (1974).

816 People v. De Leon, 49 Phil. 437 (1926).
817 People v. Sabbun, 10 SCRA 156 (1964).
818 People v. Lawas, 97 Phil. 975 (1955 ).
819 Santiago v. Court of Appeals, G.R. No. 109266, December 2, 1993.
820 People v. Dichupa, 113 Phil. 306 (1961).
821 People v. Cid, 66 Phil. 354 (1938 ).
 the failure of the collector to turn over the installments for a radio
and the other in June 1964 involving the pocketing of the
installments for a sewing machine.822

(d) 75 estafa cases committed by the conversion by the agent of

collections from customers of the employer made on different
dates.823

Chapter Twelve
PENALTIES

1) Penalties in general

a) Concept

i) Penalty means the suffering in person, rights, or property that is

annexed by law or judicial decision to the commission of a crime or
public offense.824

ii) In legal parlance, it means the suffering undergone because of the

action of society, by one who commits a crime. It is imposed only after a
conviction in a criminal action.825

b) Purpose in punishing crimes

i) To secure justice. The State has an existence of its own to maintain, a

conscience of its own to assert, and moral principles to be vindicated.
Penal justice must therefore be exercised by the State in the service and

822 People v. Ledesma, 73 SCRA 77 (1976).

823 Gamboa v. Court of Appeals, 68 SCRA 308 (1975).
824 Merriam-Webster; https://www.merriam-webster.com/ 13 June 2018.
825 Gregorio, supra., page 199.
 satisfaction of a duty, and rests primarily on the moral rightfulness of the
punishment inflicted.826

c) Theories justifying penalty.827

i) Deterrence - the State is concerned in the imperative necessity of

protecting the social organization against the criminal acts of destructive
individuals.828

ii) Retributive justice - crimes must be punished by the State as an act of

retributive justice, a vindication of absolute right and moral law violated
by the criminal.

iii) Reformation - the State is also concerned in redeeming the individual

for economic usefulness and other social ends.829

iv) Reintegration – the State must consider the criminal as a member of

society, his relationship, first, toward his dependents, family and
associates and their relationship with him, and second, his relationship
towards society at large and the State.830

d) Purpose of penalties under the Revised Penal Code

i) Retribution or expiation – the penalty commensurate with the gravity of

the offense.

ii) Correction or reformation – this is shown by the rules which regulate the
execution of the penalties consisting in deprivation of liberty.

iii) Social defense – this is shown by its inflexible severity to recidivist and
habitual delinquents.831

e) Nature of system of penalties provided in the Revised Penal Code

i) Rigid – the rigidity lies in the classification of penalties.

ii) Elastic – the elasticity lies in the range of each class, period or degree

826 Ibid., citing Albert, Revised Penal Code.

827 People v. Temporada, G.R. No. 173473, December 17, 2008.
828 People v. Ducosin, G.R. No. L-38332, December 14, 1933.
829 Ibid.
830 Ibid.
831 Reyes, supra.
 of penalty.832

2) Classification of penalties and their range.

a) Classification

i) Principal

(1) Capital Punishment –Death

(a) Afflictive penalties

(i) Reclusion perpetua

(ii) Reclusion temporal
(iii) Perpetual or temporary absolute disqualification
(iv) Perpetual or temporary special disqualification
(v) Prision mayor

(b) Correctional penalties

(i) Prision correcional

(ii) Suspension
(iii) Destierro
(iv) Arresto mayor

(c) Light penalties

(i) Arresto menor

(ii) Public censure

(d) Penalties common to the three preceding classes

(i) Fine
(ii) Bond to keep the peace

(e) Accessory Penalties

(i) Perpetual or temporary absolute disqualification;

(ii) Perpetual or temporary special disqualification;
(iii) Suspension from public office, the right to vote and be voted
for, the profession of calling;

832 Gregorio, supra. page 199.

 (iv) Civil interdiction;
(v) Indemnification;
(vi) Forfeiture or confiscation of instrument and proceeds of the
offense;
(vii) Payment of costs.

ii) Concepts.

(1) Reclusion perpetua and life imprisonment, distinguished. Reclusion

perpetua is not synonymous with life imprisonment. They are
different and distinct from each other.833 The Code does not
prescribe the penalty of life imprisonment for any of the felonies
therein defined, that penalty being invariably imposed for serious
offenses penalized not by the Revised Penal Code but by special
laws. Reclusion perpetua entails imprisonment for at least thirty (30)
years after which the convict becomes eligible for pardon, it also
carries with it accessory penalties, namely: perpetual special
disqualification, etc. It is not the same as life imprisonment which, for
one thing, does not carry with it any accessory penalty, and for
another, does not appear to have any definite extent or duration. 834
Every judge should take note of the distinction and this Court expects
that, henceforth, no trial judge should mistake one for the other.835

Reclusion Perpetua Life Imprisonment

Source Revised Penal Code Special Penal Laws

Duration 20 to 40 years Indefinite duration
The penalty comes with
Accessory penalty No accessory penalty
accessory penalty.
Eligible for parole after 30
Eligibility for parole No details on parole
years

(2) Destierro. Destierro means banishment or only a prohibition from

residing or entering the place or places designated in the sentence,
or within the radius therein designated, which shall include a distance
of 25 kilometers at least, and 250 kilometers at most, from the place

833 People v. Ruelan, 231 SCRA 650 [1994].

834 People v. Baguio, 196 SCRA 459; People v. Gregorio, et al., G.R. No. 109614-15, March 29,
1996.
835 SC Administrative Circular No. 6-A-92, June 21, 1993.
 designated.836 It involves deprivation of liberty.837

(a) It is imposed in the following cases:

(i) Death or serious physical injuries under exceptional

circumstances (Art. 247);
(ii) In case of failure to give bond for good behavior (Art. 284);
(iii) As a penalty for the concubine in concubinage (Art. 334);
(iv) In cases where after reducing the penalty by one or more
degrees destierro is the proper penalty.

(2) Fine under Article 26 merely classifies fine and has nothing to do with
the definition of light felony.838

(a) Afflictive – exceeds Php1,200,000.00;

(b) Correctional – Php40,000.00 to Php1,200,000.00
(c) Light – less than Php40,000.00.

Duration of penalties

Penalty Duration

20 years, 1 day to 40 years (after

Reclusion perpetua
30 years, he is eligible for parole)
Reclusion temporal 12 years, 1 day to 20 years
Prision mayor and temporary
6 years, 1 day to 12 years
disqualification
Prision correcional, suspension, and
6 months, 1 day to 6 years
destierro
Arresto mayor 1 month, 1 day to 6 months
Arresto menor 1 day to 30 days
Bond to keep peace as the court may require

Preventive imprisonment

Article 29. Period of preventive imprisonment deducted from term of

imprisonment. – Offenders or accused who have undergone preventive

836 Legarda v. Valdez, G.R. No. 513, February 25, 1902.

837 People v. Bastasa, G.R. No. L-32792, February 2, 1979.
838 Reyes, supra.
imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in
writing after being informed of the effects thereof and with the assistance of
counsel to abide by the same disciplinary rules imposed upon convicted
prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice

or more times of any crime; and

2. When upon being summoned for the execution of their sentence

they have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall do so in writing with
the assistance of a counsel and shall be credited in the service of his
sentence with four-fifths of the time during which he has undergone
preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion

perpetua shall be deducted from thirty (30) years.

Whenever an accused has undergone preventive imprisonment for a

period equal to the possible maximum imprisonment of the offense charged
to which he may be sentenced and his case is not yet terminated, he shall
be released immediately without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is under review.
Computation of preventive imprisonment for purposes of immediate release
under this paragraph shall be the actual period of detention with good
conduct time allowance: Provided, however, That if the accused is absent
without justifiable cause at any stage of the trial, the court may motu
proprio order the rearrest of the accused: Provided, finally, That recidivists,
habitual delinquents, escapees and persons charged with heinous crimes
are excluded from the coverage of this Act. In case the maximum penalty to
which the accused may be sentenced is destierro, he shall be released after
thirty (30) days of preventive imprisonment."

1) Nature.

a) Offenders or accused who have undergone preventive imprisonment shall

be credited in the service of their sentence consisting of deprivation of
liberty, with the full time during which they have undergone preventive
imprisonment.

2) Requisites:
a) if the detention prisoner agrees voluntarily in writing after being informed of
the effects thereof and with the assistance of counsel;

b) to abide by the same disciplinary rules imposed upon convicted prisoners.

c) Except in the following cases:

i) When they are recidivists, or have been convicted previously twice or

more times of any crime; and

ii) When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.

iii) If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall do so in writing with
the assistance of a counsel and shall be credited in the service of his
sentence with four-fifths of the time during which he has undergone
preventive imprisonment.

iv) Credit for preventive imprisonment for the penalty of reclusion

perpetua shall be deducted from thirty (30) years.

v) Whenever an accused has undergone preventive imprisonment for a

period equal to the possible maximum imprisonment of the offense
charged to which he may be sentenced and his case is not yet
terminated, he shall be released immediately without prejudice to the
continuation of the trial thereof or the proceeding on appeal, if the same
is under review.

c) Computation of preventive imprisonment for purposes of immediate release

under this paragraph shall be the actual period of detention with good
conduct time allowance:

i) If the accused is absent without justifiable cause at any stage of the trial,
the court may motu proprio order the re-arrest of the accused:

(1) That recidivists, habitual delinquents, escapees and persons

charged with heinous crimes are excluded from the coverage of this
Act.

(2) 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.
3) Concepts.

b) Although destierro does not constitute imprisonment, it is nonetheless a

deprivation of liberty. It follows that Art, 29 is applicable when the penalty is
destierro. The accused should be credited with the time during which he
has undergone preventive imprisonment.839

c) A habitual delinquent is not entitled to the full time or 4/5 of the time of
preventive imprisonment because a habitual delinquent is necessarily a
recidivist or that at least he has been convicted previously twice or more
times of any crime.840

Effects of penalties

1) Perpetual or temporary absolute disqualification for public office

a) Deprivation of public offices and employments even by election;

b) Deprivation of right to vote or to be elected;
c) Disqualification for the offices of public employments and for the exercise
of any of the rights mentioned;
d) Loss of right to retirement pay or pension for any office formerly held.

2) Perpetual or temporary special disqualification for public office, profession or

calling

a) Deprivation of the office, employment, profession or calling affected;

b) Disqualification for holding similar offices or employments perpetually or
during the term of the sentence.

3) Perpetual or temporary special disqualification for the exercise of right of

suffrage

a) Deprivation of the right to vote or to be elected to any public office;

b) Cannot hold any public office during the period of disqualification.

4) Suspension from public office, profession or calling or the right of suffrage

a) Disqualification from holding such office or exercising such profession or

calling or right of suffrage during the term of the sentence;

839 People v. Bastasa, 88 SCRA 184.

840 People v. Gona, G.R. No. 47177, Nov. 4, 1940.
 b) If suspended from public office, the offender cannot hold another office
having similar functions during the period of suspension.

5) Civil interdiction

a) Deprivation of the rights of parental authority or guardianship of any ward;

b) Deprivation of marital authority;
c) Deprivation of the right to manage his property and of the right to disposed
of such property by any act of any conveyance inter vivos.

6) Bond to keep the peace

a) The offender must present two sufficient sureties which shall undertake that
the offender 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; or
b) The offender must deposit such amount with the clerk of court to guarantee
said undertaking; or
c) The offender may be detained, if he cannot five the bond, for a period not
to exceed 6 months of prosecuted for grave or less grave felony, or for a
period not to exceed 30 days, if for a light felony.

7) Pardon by the Chief Executive

a) Absolute pardon extinguishes the criminal liability of the offender;

b) It does not exempt the offender from the payment of civil indemnity;
c) It does not restore the right to hold public office or the right of suffrage unless
such rights are expressly restored by the terms of pardon.

Subsidiary imprisonment

Article 39. Subsidiary Penalty. – If the convict has no property with

which to meet the fine mentioned in paragraph 3 of the next preceding article,
he shall be subject to a subsidiary personal liability at the rate of one day for
each amount equivalent to the highest minimum wage rate prevailing in the
Philippines at the time of the rendition of judgment of conviction by the trial
court, subject to the following rules:

1. If the principal penalty imposed be prision correctional or arresto and

fine, he shall remain under confinement until his fine referred 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 fight felony.

3. When the principal penalty imposed is higher than prision correctional,

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 Republic Act
No. 5465, which lapsed into law on April 21, 1969.)

1) Nature.

a) If the convict has no property with which to meet the fine, he shall be subject
to a subsidiary personal liability at the rate of one day for each amount
equivalent to the highest minimum wage rate prevailing in the Philippines at
the time of the rendition of judgment of conviction by the trial court, subject
to the following rules:

i) If the principal penalty imposed be prision correcional or arresto and

fine, he shall remain under confinement until his fine 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.

ii) 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 fight felony.

iii) When the principal penalty imposed is higher than prision correccional,
no subsidiary imprisonment shall be imposed upon the culprit.

iv) 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.

v) 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.

b) When not proper:

i) The principal penalty imposed is more than prision correccional (more

than 6 years);

ii) The principal penalty is not to be served by confinement and is not of

fixed duration (ex. fine not exceeding P200 and censure);

iii) Subsidiary penalty is not expressly stated in the sentence to take the
place of fine in case of insolvency;

iv) The sentence imposed does not include fine; and

v) If convict has the means to pay the fine.

1) Concepts.

a) The additional penalty for habitual delinquency is included in determining

whether the subsidiary penalty is to be imposed. So, if even if the principal
penalty is less than prision correccional and fine but there is an additional
penalty of 12 years and 1 day because the offender is a habitual delinquent,
there is no subsidiary imprisonment.841

b) If the offender has been sentenced to several penalties, the aggregate

penalties should be considered in bulk, not separately. So if the aggregate
penalty exceeds 6 years, there is no subsidiary imprisonment.842

c) On February 14, 2001, SC issued Administrative Circular No. 13-2001

clarifying the imposition of imprisonment for violations of Batas Pambansa
Blg. 22 and subsidiary imprisonment upon the accused found guilty but is
unable to pay the fine he is sentenced to pay. In clarifying the imposition of
subsidiary imprisonment, the Circular states that if the accused is unable to

841 People v. Concepcion, G.R. No. 46652, September 23, 1939.

842 Toledo v. Supt. of the Correctional Institution for Women, G.R. No. L-16311, Jan. 25, 1962.
 pay the fine imposed by the trial court, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary
imprisonment.843

d) The Supreme Court has, on several occasions, imposed subsidiary

imprisonment in case of insolvency to pay the fine for violation of special
laws, notwithstanding the absence of such provision in said laws. The Court
imposed subsidiary imprisonment on petitioner who was convicted of
violating B.P. Blg. 22.844

e) Issues in the application of the law

i) May the offender be made to undergo the subsidiary imprisonment if it

is not expressly provided in the judgment? No. The court must expressly
state that subsidiary penalty shall be served in case of insolvency
because this is not an accessory penalty that follows the principal
penalty as a matter of course.

ii) May the convict choose to serve the subsidiary imprisonment in lieu of
paying the fine? No. If the convict has properties, he has no option to
serve the subsidiary imprisonment because subsidiary imprisonment is
applied only in case of insolvency.

iii) Does subsidiary penalty apply to criminal negligence? Yes.

iv) May an accused found guilty of violations of Batas Pambansa Blg. 22

be made to suffer subsidiary imprisonment in case he fails to pay the
fines imposed by the trial court for such violations (notwithstanding that
it is a special law and does not contain a provision for subsidiary
imprisonment)? Yes. The provisions on subsidiary imprisonment can be
applied suppletorily to Batas Pambansa Blg. 22 pursuant to Article 10 of
the RPC.

v) When after the culprit had served subsidiary penalty, he became

solvent, is he still liable to pay the fine? Yes. Subsidiary imprisonment
does not extinguish the non-payment of fine. Article 39 of the RPC
provides that 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.

843 Jao Yu v. People, G.R. No. 134172. September 20, 2004.

844 Diongson v. CA, G.R. No. 114823, December 23, 1999.
 vi) Does subsidiary imprisonment violate the constitutional prohibition
imprisonment for non-payment of debt? No. The debt intended to be
covered by the constitutional provisions must be a debt arising
exclusively from actions ex contractu, and was never meant to include
damages arising in actions ex delicto, or fines, penalties, and other
impositions imposed by the courts in criminal proceedings as
punishments for crimes committed against the common or statute law. 845

Application of penalties

1) Rules on application of penalties on specific cases

a) Complex crime – the penalty to be imposed is for the most serious crime;

b) Crime committed is different from that intended

i) If penalty for felony committed is higher than the crime intended – the
penalty of the crime intended to be imposed in maximum period;

ii) If penalty for felony committed is lower than the crime intended – the
penalty for the crime committed to be imposed in maximum period;

iii) If the act committed constitutes an attempt or frustration of another

felony and the law prescribes a higher penalty for either of the latter –
the penalty for attempted or frustrated felony in maximum period.

c) Table of application of Articles 50 to 57

i) Principal of frustrated felony;

ii) Principal of attempted felony;
iii) Accomplice in consummated felony;
iv) Accessories in consummated felony;
v) Accomplice in frustrated felony;
vi) Accessory in frustrated felony;
vii) Accomplice in attempted felony;
viii) Accessories in attempted felony.

Consummated Frustrated Attempted

Principal 0 1 2
Accomplice 1 2 3
Accessory 2 3 4

845 U.S. v. Cara, 41, Phil 828.

(0 represents the penalty to be imposed on the principal in consummated felony.
Other figures represent the degrees to which the penalty must be lowered.)

d) Penalty for impossible crime – arresto mayor or a fine ranging from 200 to
500 pesos.

Graduation of penalties

Article 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.
1) Scale of penalties in Article 71.

a) Death;
b) Reclusion perpetua;
c) Reclusion temporal;
d) Prision mayor;
e) Prision correccional;
f) Arresto mayor;
g) Destierro;
h) Arresto menor;
i) Public censure; and
j) Fine.

2) Concepts.

a) Has death penalty been abolished?

i) In a case, the Court held that the 1987 constitution does not abolish
death penalty. It merely suspends the imposition of death penalty. A
reading of Section 19(l) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death
penalty. The provision merely says that the death penalty shall not be
imposed unless for compelling reasons involving heinous crimes the
Congress hereafter provides for it and, if already imposed, shall be
reduced to reclusion perpetua..846

ii) In 2006, RA 9346 was passed prohibiting the imposition of death

penalty.

iii) In a subsequent case, "death," as utilized in Article 71 of the Revised

Penal Code, shall no longer form part of the equation in the graduation
of penalties. Thus, in the determination of penalty, the lowering of the
same shall be reckoned not from two degrees lower than death, but two
degrees lower than reclusion perpetua.847

Rules for graduating penalties

Article 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

846 People v. Munoz, G.R No. 38969-70, February 9, 1989.

847 People v. Bon, G.R. No. 166401, October 30, 2006 (En Banc).
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 corresponding penalties upon
those guilty as principals of the frustrated felony, or of attempt to
commit the same, and upon accomplices and accessories.

1) First Rule. When the penalty is single and indivisible (reclusion

perpetua) - the penalty next lower is reclusion temporal.

2) Second Rule.
 a) When the penalty is composed of two indivisible penalties (reclusion
perpetua to death) – the next penalty lower is reclusion termporal;

b) When the penalty is composed of one or more divisible penalties to be

imposed to their full extent – the penalty immediately following the
divisible penalty of reclusion temporal is prision mayor; and the penalty
immediately following the lesser penalties of prision correccional to
prision mayor is arresto mayor.

3) Third Rule. When the penalty is composed of one or two indivisible

penalties and the maximum period of a divisible penalty – the penalty
next lower in degree is composed of the medium and minimum periods
of the proper divisible penalty and the maximum of that immediately
following in graduated scale. (Example is the penalty for murder –
reclusion temporal in its maximum period to death);

2) Fourth Rule. When the penalty is composed of several periods – the

penalty next lower shall be composed of the period immediately
following the minimum prescribed and of the two next following. The
several periods must correspond to different divisible penalties.

a) When the penalty has two periods – the penalty next lower is formed
by two periods to be taken from either the penalty prescribed, if
possible, or from the period of next lower divisible penalty;

b) When the penalty has one period, the penalty next lower in degree
shall be that period next following the given penalty. For example, the
penalty immediately lower to prision mayor in its maximum period is
prision mayor in its medium period.

3) Fifth Rule. When the law prescribes a penalty for a crime in some
manner not specially provided for in the foregoing rules – the court by
analogy shall impose the corresponding penalties upon those guilty as
principals of the frustrated felony, or of attempt to commit the same,
and upon accomplices and accessories.

4) Simplified rules for Paragraphs 4 and 5 of Article 61:

a) If he penalty prescribed consists in three periods, the penalty next

lower in degree is the penalty consisting in the three periods down the
scale;
b) If the penalty prescribed consists of two periods, the penalty next lower
 in degree is the penalty consisting in two periods down in the scale;
c) If the penalty prescribed consists in only one period, the penalty next
lower in degree is the next period down in the scale.

Rules for application of penalties containing three periods

Article 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.

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.
 1) The rules apply only when the prescribed penalty is reclusion temporal,
prision mayor, prision coreccional, arresto mayor, arresto menor, or
prision correccional to reclusion temporal because they contain three
periods.

2) Rules to be observed:
a) No aggravating and no mitigating – medium period;
b) Only a mitigating – minimum period;
c) Only an aggravating – maximum period;
d) When there are aggravating and mitigating – offsetting of
circumstances will be made;
e) Two or more mitigating and no aggravating – penalty next lower
depending on the number and nature of circumstances;
f) No penalty greater than the maximum period of the penalty prescribed
by law shall be imposed, no matter how may aggravating
circumstances present;
g) The court can determine the extent of the penalty within the limits of
each period, according to the number and nature of the aggravating
and mitigating circumstances and the greater or lesser extent of the
evil produced by the crime.

Rules on the imposition of fines (Article 66)

Article 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.

1) The court may fix any amount within the limits set by law.
2) The court also must consider the mitigating and aggravating circumstances
and the wealth or means of the offender.
Successive Service of Sentences or the Three-Fold Rule (Article 70)

Article 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.

1) Under Article 70, when the offender has to serve two or three penalties, he
shall serve them simultaneously if the nature of the penalties so permit.
Otherwise, he has to serve them successively in the order of their
respective severity. The maximum duration of the sentence should not be
more than three times the most severe penalty. However, the maximum
period cannot exceed 40 years.

2) This article is to be taken into account not in the imposition of the penalty
but in connection with the service of the sentence imposed 848. Article 70
speaks of "service" of sentence, "duration" of penalty and penalty "to be
inflicted". Nowhere in the article is anything mentioned about the
"imposition of penalty". It merely provides that the prisoner cannot be made
to serve more than three times the most severe of these penalties the
maximum of which is forty years.849

3) The correct rule is to multiply the highest principal penalty by 3 and the
result will be the aggregate principal penalty which the prisoner has to
serve plus the payment of all the indemnities (fine) which he has been
sentenced to pay. This does not include subsidiary penalty. So, if the
offender after serving the three-fold maximum penalty cannot pay the fine,
he has still serve the subsidiary imprisonment.850

4) The three-fold rule applies although the penalties were imposed for
different crimes at different times and under separate information.851’

5) Court must impose all the penalties for all the crimes of which the accused
is found guilty, but in the service of the same,
they shall not exceed three times the most severe and shall not
exceed 40 years.852

848 People v. Escares, 102 Phil. 677 (1957).

849 Mejorada v. Sandiganbayan, G.R. No. L51065-72, June 30, 1987.
850 Bagtas v. Director of Prisons, G.R. No. L-3215, October 6, 1949.
851 Gregorio, supra at page 277 citing Torres v. Superintendent, 58 Phil. 847.
852 People v. Odencio, et al., G.R. No. L-31961, January 9, 1979.
 6) The rule does not apply when the convict two or three sentences. There
must be at least four sentences.853

7) Material accumulation system provides that all the penalties for all the
violations were imposed even if they reached beyond the natural span of
human life. Juridical accumulation system provides that the convict must
serve sentence to not more than three-fold the length of time
corresponding to the most severe and in no case to exceed 40 years. The
latter is adopted in the Philippines.

8) The rule is inapplicable when the accused absconds to become a fugitive

from justice and makes a mockery of the judicial process, designed to
protect society in general and particular members thereof directly
offended.854

Indeterminate Sentence Law (Act 4103)

1) Nature.

a) Indeterminate sentence is a sentence with a minimum term and a

maximum benefit of a guilty person, who is not disqualified therefore,
when the maximum penalty of imprisonment exceeds one year. It applies
to both violations of the Revised Penal Code and special penal laws.

2) Purposes.

a) To uplift and redeem valuable human material and prevent unnecessary

and excessive deprivation of personal liberty and economic usefulness.
(People v. Onate, 78 SCRA 43)
b) As a rule, it is intended to favor the accused particularly to shorten his
term of imprisonment, depending upon his behavior and his physical,
mental, and moral record as a prisoner to be determined by the Board of
Indeterminate Sentence.

3) Coverage.

853
Reyes, supra. at page 768.
854
Communications Insurance Company, Inc. v. Villaluz, et al., G.R. No. L-36721-27, August 29,
1980.
 a) Revised Penal Code

a) The court shall sentence the accused to an indeterminate

sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the
Code, and the minimum term which shall be within the range of the
penalty next lower in degree to that prescribed by the Code for the
offense. The maximum is the penalty imposed as provided by law,
depending upon the attending circumstances. The minimum is one
degree next lower to the penalty prescribed for the offense. The latter
is determined without considering the attending circumstances to the
penalty prescribed, and is left to the discretion of the court.855

b) Example: Homicide with one mitigating circumstance. The maximum

penalty prescribed by law is Reclusion temporal. Since there is
one mitigating and no aggravating it will be in the minimum or reclusion
temporal minimum period. On the other hand, the minimum is one
degree next lower to reclusion temporal without considering the
mitigating circumstance and that will be prision mayor. The range of
prision mayor will depend upon the discretion of the court. Therefore,
the indeterminate penalty is a minimum of prision mayor (within the
range fixed by the court) to a maximum of reclusion temporal minimum
period.

b) Special Penal Law.

a) The court shall sentence the accused to an indeterminate sentence,

the MAXIMUM TERM of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the MINIMUM TERM
prescribed by the same.

b) Example: Penalty is one year to 5 years. Indeterminate sentence may

be one year to 3 years or 3 years to 5 years.

2) Exceptions.

a) Those convicted of offenses punished with death or life imprisonment.

b) Those convicted of treason, conspiracy or proposal to commit treason,
misprision of treason, rebellion, sedition or espionage, or piracy.
c) Those who are habitual delinquents. (Recidivists are entitled to an
indeterminate sentence.)856

855 People v. Yco, G.R. No. 6545, July 27, 1954.

856 People v. Jaranilla, G.R. No. 28547, February 22, 1974.
 d) Those who shall have escaped from confinement or evaded sentence. (A
minor who escaped from confinement in the reformatory is entitled to the
benefits of the law because confinement is not considered
imprisonment.)857
e) Those who having been granted conditional pardon by the President shall
have violated the terms thereof.
f) Those whose maximum period of imprisonment does not exceed one
year. (The application of which is based upon the penalty actually
imposed in accordance with law.)858
g) Those already serving final judgment upon the approval of this Act
(December 5, 1933).
h) Those sentenced to the penalty of destierro or suspension.

3) Concepts.

a) Whenever any prisoner who shall have served the minimum penalty
imposed on him, said Board of Indeterminate Sentence may, in its
discretion, and in accordance with the rules and regulations adopted
thereunder, authorize the release of such prisoner on parole. If during the
period of surveillance, such parolee shall show himself to be a law-
abiding citizen and shall not violate any of the laws of the Philippines, the
Board may issue a final certificate of release in his favor. Whenever
any prisoner released on parole shall, during the period of surveillance,
violate any of the conditions of his parole, the Board may issue an order
for his re-arrest and shall serve the remaining unexpired portion of the
maximum sentence.

b) The application of the Indeterminate Sentence Law is mandatory if the

imprisonment would exceed one year. It would be favorable to the
accused.859

c) The application of the Indeterminate Sentence Law is based upon the

penalty actually imposed in accordance with law and not upon that which
may be imposed in the discretion of the court.860

d) How to compute:

a) The RPC provides for an initial penalty as a general prescription for

the felonies defined therein which consists of a range of period of

857 People v. Perez, 44 OG 3884.

858 People v. Hernandez, G.R. No. L-7616, May 10, 1955.
859 People v. Judge German Lee, Jr., G.R. No. 86859, September 12, 1984.
860People v. Dimalanta, 92 Phil., 239.
 time. This is what is referred to as the "prescribed penalty." For
instance, under Article 249 of the RPC, the prescribed penalty for
homicide is reclusión temporal which ranges from 12 years and 1 day
to 20 years of imprisonment. Further, the Code provides for attending
or modifying circumstances which when present in the commission of
a felony affects the computation of the penalty to be imposed on a
convict. This penalty, as thus modified, is referred to as the
"imposable penalty." In the case of homicide which is committed with
one ordinary aggravating circumstance and no mitigating
circumstances, the imposable penalty under the RPC shall be the
prescribed penalty in its maximum period. From this imposable
penalty, the court chooses a single fixed penalty (also called a straight
penalty) which is the "penalty actually imposed" on a convict, i.e., the
prison term he has to serve.

b) Concretely, in U.S. v. Saadlucap, a pre-ISL case, the accused was

found guilty of homicide with a prescribed penalty of reclusión
temporal. Since there was one ordinary aggravating circumstance
and no mitigating circumstances in this case, the imposable penalty
is reclusión temporal in its maximum period, i.e., from 17 years, 4
months and 1 day to 20 years. The court then had the discretion to
impose any prison term provided it is within said period, so that the
penalty actually imposed on the accused was set at 17 years, 4
months and 1 day of reclusión temporal, which is a single fixed
penalty, with no minimum or maximum term.

c) With the passage of the ISL, the law created a prison term which
consists of a minimum and maximum term called the indeterminate
sentence. Thus, the maximum term is that which, in view of the
attending circumstances, could be properly imposed under the RPC.
In other words, the penalty actually imposed under the pre-ISL regime
became the maximum term under the ISL regime. Upon the other
hand, the minimum term shall be within the range of the penalty next
lower to the prescribed penalty. To illustrate, if the case
of Saadlucap was decided under the ISL regime, then the maximum
term would be 17 years, 4 months and 1 day of reclusión
temporal and the minimum term could be anywhere within the range
of prisión mayor (6 years and 1 day to 12 years) which is the penalty
next lower to reclusión temporal. Consequently, an indeterminate
sentence of 10 years of prisión mayor as minimum to 17 years, 4
months and 1 day of reclusión temporal as maximum could have
possibly been imposed. If we use the formula as proposed by the
dissent, i.e., to compute the minimum term based on the maximum
term after the attending or modifying circumstances are considered,
 the basis for computing the minimum term, under this interpretation,
is the imposable penalty as hereinabove defined. This interpretation
is at odds with Section 1 of the ISL which clearly states that the
minimum of the indeterminate sentence shall be "within the range of
the penalty next lower to that prescribed by the Code for the offense."
Consequently, the basis for fixing the minimum term is the prescribed
penalty, and not the imposable penalty. In People v. Gonzales, the
Court held that the minimum term must be based on the penalty
prescribed by the Code for the offense "without regard to
circumstances modifying criminal liability." The Gonzales’ ruling that
the minimum term must be based on the prescribed penalty "without
regard to circumstances modifying criminal liability" is only
a restatement of Section 1 of the ISL that the minimum term shall be
taken from within the range of the penalty next lower to the prescribed
penalty (and from nowhere else).861

Execution and service of sentence

Article 78. When and how a penalty is to be executed. - No penalty

shall be executed except by virtue of a final judgment.

861 People v. Temporada, G.R. No. 173473, December 17, 2008 (en banc).
 A penalty shall not be executed in any other form than that prescribed
by law, nor with any other circumstances or incidents than those expressly
authorized thereby.

In addition to the provisions of the law, the special regulations

prescribed for the government of the institutions in which the penalties are
to be suffered shall be observed with regard to the character of the work to
be performed, the time of its performance, and other incidents connected
therewith, the relations of the convicts among themselves and other
persons, the relief which they may receive, and their diet.

The regulations shall make provision for the separation of the sexes
in different institutions, or at least into different departments and also for the
correction and reform of the convicts.

1) When a penalty to be executed.

a) The judgment must be final before it can be executed. The penalty can be
executed in the form prescribed by law or with circumstances or incidents
expressly authorized by law.
b) Thus, if the judgement is silent as regards subsidiary imprisonment in case
of insolvency, the convict cannot be required to suffer the same in case of
inability to pay the fine imposed on him.862

2) Suspension of Sentence, when allowed.

a) Insanity/Imbecility
i) When the convict becomes insane or imbecile after the final
sentence has been pronounced, the execution of the sentence is
suspended as regards personal penalty.
ii) Upon his recovery, his sentence shall be executed unless the penalty
has already prescribed.
iii) The same rule applies if the convict becomes insane while serving
the sentence.
iv) Only the execution of personal penalty is suspended. The payment
of civil liability is not suspended.

b) Minor (Juvenile) delinquency (RA 9344).

i) The minor delinquent described in Article 80 of the Revised Penal

Code has been renamed “child in conflict of with the law” under RA

862 People v. Jarumayan, 52 O.G. 249.

 9344, otherwise known as the Juvenile Justice and Delinquent Act
of 2006. Under the law, a child in conflict with the law refers to a child
who is alleged as, accused of, or adjudged as, having committed an
offense under Philippine laws.

ii) A child in conflict with the law is a person who at the time of the
commission of the offense is below eighteen (18) years old but not
less than fifteen (15) years and one (1) day old.863 Under RA 9344,
a minor who is above fifteen (15) years but below eighteen (18) years
of age shall likewise be exempt from criminal liability unless he/she
has acted with discernment.864 Discernment has been defined as the
mental capacity of a minor to fully grasp the consequences of his act,
known and determined by taking into account all the facts and
circumstances presented by the records in each case.865 The
surrounding circumstances must demonstrate that the minor knew
what he was doing and that it was wrong.866 Such circumstance
includes the gruesome nature of the crime and the minor’s cunning
and shrewdness.867

iii) Section 38 of RA No. 9344 provides that when the child below 18
years of age who committed a crime and was found guilty, the court
shall place the child in conflict with the law under suspended
sentence even if such child has reached 18 years or more at the time
of judgment. The suspension of sentence is made without the need
of application. The court, however, is mandated to determine and
ascertain any civil liability which may have resulted from the offense
committed.

iv) Suspended sentence is the holding in abeyance of the service of the

sentence imposed by the court upon a finding of guilt of the child in
conflict with the law, whereby the child undergoes rehabilitation
within a fixed period under such terms and conditions as may be
ordered by the court.868

v) The automatic suspension of sentence under Section 38 applies

even if the minor therein was convicted of reclusion perpetua. The
provision makes no distinction as to the nature of the offense

863 A.M. No. 02-1-18-SC, November 24, 2009.

864 Section 6.
865 People v. Jacinto, G.R. No. 182236, March 16, 2011.
866 Remiendo v. People, G.R. No. 184874, October 9, 2009.
867 Llave v. People, G.R. No. 166040, April 26, 2006.
868 Sec. 4, A.M. No. 02-1-18-SC, November 24, 2009.
 committed by the child in conflict with the law (unlike PD 603). In
construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic
principle of statutory construction that when the law does not
distinguish, we should not distinguish. Since R.A. No. 9344 does not
distinguish between a minor who has been convicted of a capital
offense and another who has been convicted of a lesser offense, the
Court should also not distinguish and should apply the automatic
suspension of sentence to a child in conflict with the law who has
been found guilty of a heinous crime.869

vi) Further, although suspension of sentence still applies even if the

child in conflict with the law is already 18 years of age or more at the
time the judgment of conviction was rendered, however, such
suspension is only until the minor reaches the maximum age of 21
as provided under Section 40. However, in order to give meaning to
the legislative intent of the law, the promotion of the welfare of a child
in conflict with the law should extend even to one who has exceeded
the age limit of twenty-one (21) years, so long as he/she committed
the crime when he/she was still a child. The offender shall be entitled
to the right to restoration, rehabilitation and reintegration in
accordance with the Act in order that he/she is given the chance to
live a normal life and become a productive member of the
community. The age of the child in conflict with the law at the time of
the promulgation of the judgment of conviction is not material. What
matters is that the offender committed the offense when he/she was
still of tender age.870

vii) Upon conviction and upon order of the court, the minor offender may
be made to serve his/her sentence in an agricultural camp and other
training facilities that may be established, maintained, supervised
and controlled by the BUCOR, in coordination with the DSWD, in lieu
of confinement in a regular penal institution.871

Probation Law (PD 968, as amended by RA 10707).

1) Nature.

a) Probation is a disposition, under which a defendant after conviction and

sentence, is released subject to the conditions imposed by the court and to
the supervision of a probation officer.

869 People v. Sarcia, G.R. No. 169641, September 10, 2009.

870 People v. Jacinto, supra.; People v. Ancajas, et al., G.R. No. 199270, October 21, 2015.
871 Sec. 51; People v. Deliola, G.R. No. 200157, October 31, 2016.
 b) Probation is not a right of an accused but a mere privilege, an act of grace
and clemency or immunity conferred by the state, which is granted to a
deserving defendant who thereby escapes the extreme rigors of the penalty
imposed by law for the offense of which he was convicted.872 As a special
privilege granted by to a penitent qualified offender, it should be availed of
at the first opportunity by convicts who are willing to be reformed and
rehabilitated, who manifest spontaneity, contrition and remorse.873

c) The primary consideration in granting probation is the reformation of the

probationer. That is why, under the law, a post sentence investigation,
which is mandatory, has to be conducted before a person can be granted
probation to help the court in determining whether the ends of justice and
the best interest of the public as well as the defendant will be served by the
granting of the probation.874

2) Purposes.

a) To promote the correction and rehabilitation by providing the correction and

rehabilitation by providing the offender with individualized treatment;

b) To provide an opportunity for the reformation of an offender which might be

less probable if he were to serve a prison sentence; and
c) To prevent the commission of offenses.

3) Exceptions.

a) Sentenced to serve a maximum term of imprisonment of more than six (6)

years;

b) Convicted of any crime against the national security;875

c) Who have previously been convicted by final judgment of an offense

punished by imprisonment of more than six (6) months and one (1) day
and/or a fine of more than one thousand pesos (P1,000.00);

872 Santos v. Court of Appeals, 377 Phil. 642, (1999).

873 Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995.
874 Salgado v. Court of Appeals, G.R. No. 89606, August 30, 1990.
875 Title One: (1) Treason; (2) Conspiracy and proposal to commit treason; (3) Misprision of treason;

(4) Espionage; (5) Inciting to war or giving motives for reprisals; (6) Violation of neutrality; (7)
Correspondence with hostile country; (8) Flight to enemy’s country; (9) Piracy and mutiny; and (10)
Qualified piracy.
 d) Who have been once on probation under the provisions of this Decree; and

e) Who are already serving sentence at the time the substantive provisions of
this Decree became applicable pursuant to Section 33 hereof.

2) When to file.

a) As a rule, the application for probation within a period to appeal, i.e. within
15 days after the promulgation of sentence.

3) Application barred if appeal is made, exception.

a) No application for probation shall be entertained or granted if the defendant

has perfected the appeal from conviction.

b) However, when the judgement of conviction imposing a non-probationable

penalty is appealed or reviewed, and such judgment is modified through
imposition of probationable penalty, the defendant shall be allowed to apply
for probation based on the modified decision before it becomes final.
However, should he seek a review of the modified decision which already
imposes a probationable penalty, he loses the benefit of probation.

4) Where to file.

a) The application for probation shall be filed in the trial court where the
judgement of conviction imposing a non-probationable penalty was
rendered, or in the trial court where such case has been re-raffled.

5) Where there are several defendants.

a) In a case several defendants where some have taken further appeal, the
other defendants may apply for probation by submitting a written application
attaching thereto a certified copy of the judgment of conviction.

6) Effect of filing of application on the right to avail of probation.

a) The filing of application shall be deemed a waiver of the right to appeal.

7) What may be the subject of application for probation.

a) Probation may be granted whether the sentence imposes a term of

imprisonment or a fine only.

8) Status of order granting or denying probation.

 a) The order of probation is not appealable.

9) Effect of filing of application based on modified decision.

a) The trial court shall suspend the execution of sentence imposed in the
judgment.

10) Procedure to be followed by the accused after the application is granted.

a) Present himself to the probation officer within 72 hours from receipt of

probation order;

b) Report himself to the probation officer at least once a month during the
period of probation;

c) The court, after considering the nature and seriousness of the violations of
probation (if any), may issue a warrant for the arrest of the probationer. He
is then brought to the court immediately for hearing, which is summary;

d) If violation is established, the court may revoke or continue the probation

and modify the conditions thereof;

e) If revoked, the probationer shall be ordered to serve the sentence originally

imposed and shall commit the probationer. The order of the court is not
appealable.

11) Period of probation.

a) The period of probation of a defendant sentenced to a term of imprisonment

of not more than one year shall not exceed two years, and in all other cases,
said period shall not exceed six years.

b) When the sentence imposes a fine only and the offender is made to serve
subsidiary imprisonment in case of insolvency, the period of probation shall
not be less than nor to be more than twice the total number of days of
subsidiary imprisonment as computed at the rate established, in Article
thirty-nine of the Revised Penal Code, as amended.

12) Effects after accused served the probation.

a) After the period of probation and upon consideration of the report and
recommendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the terms and
 conditions of his probation and thereupon the case is deemed terminated.

b) The final discharge of probationer shall operate to restore to him all civil
rights lost or suspended as a result of his conviction and to totally extinguish
his criminal liability as to the offense for which probation was granted.

13) Concepts.

a) Except for the reasons specified by the law, a trial court should not deny a
petition for probation, especially when the probation officer has favorably
recommended the grant of probation. The denial must be based on the fact
that the accused falls within any one of the disqualification.876 Although an
order granting or denying probation is not appealable, an outright denial by
the court is a nullity which is correctible by certiorari.877

b) A penalty of six years and one day is not entitled to the benefits of the law.
In case of multiple prison terms, the totality of the prison terms should not
be taken into account for the purposes of determining the eligibility of the
accused for the probation. The law uses the word “maximum term”, and not
total term. It is enough that each of the prison term does not exceed 6
years. The number of offenses is immaterial for as long as the penalties
imposed, when taken individually and separately, are within the
probationable period.878

c) Even if at the time of conviction the accused was qualified for probation but
at the time of his application for probation, he is no longer qualified, he is
not entitled to probation. The qualification for probation must be determined
as of the time the application is filed in court.879

d) No application for probation shall be entertained or granted if the defendant

has perfected an appeal from the judgment of conviction. In other words,
the filing of the application for probation is considered as a waiver of the
right of the accused to appeal. The perfection of an appeal is a
relinquishment of the alternative remedy of availing of the Probation Law,
the purpose of which is to prevent speculation or opportunism on the part
of an accused who, although already eligible, did not at once apply for
probation, but did so only after failing in his appeal.880

876 Balleta v. Leviste, 92 SCRA 719.

877 De Luna v. Hon. Medina, CA 78 OG 599.
878 Ibid.
879 Bernardo v. Judge Balagot, G.R. No. 86561, November 10, 1992
880 Lagrosa v. People, G.R. No. 152044, July 3, 2003.
 e) The provisions of the Probation Law should be liberally construed in order
that the objective should be realized and achieved.881

f) In probation, the imposition of the sentence is suspended and likewise its

accessory penalties are likewise suspended. An order placing the
defendant on probation is not a sentence but is rather in effect a suspension
of the imposition of the sentence. It is not a final judgment but is rather an
interlocutory judgment in the nature of a conditional order placing the
convicted defendant under the supervision of the court for his
reformation.882

g) The accessory penalties 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, attendant to the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period imposed
upon the accused were similarly suspended upon the grant of probation.
Thus, during the period of probation, the probationer is not disqualified from
running for a public office because the accessory penalty of suspension
from public office is put on hold for the duration of the probation.883

h) Clearly, the period within which a person is under probation cannot be

equated with service of the sentence adjudged. Sec. 4 of the Probation Law
specifically provides that the grant of probation suspends the execution of
the sentence. During the period of probation, the probationer does not
serve the penalty imposed upon him by the court but is merely required to
comply with all the conditions prescribed in the probation order.884

i) The accused was charged with frustrated homicide. He was convicted by

the trial court. On appeal invoking self-defense and praying for a lesser
crime that is attempted homicide, the CA affirmed the conviction but deleted
the award for lost income. A petition was filed with the SC. One of the issues
is whether of not the accused is entitled to probation on remand of the case
to trial court assuming he was convicted by a lower crime. Ordinarily, the
accused would no longer be entitled to apply for probation, he having
appealed from the judgment of the RTC convicting him for frustrated
homicide. But, the Court finds him guilty only of the lesser crime of
attempted homicide and holds that the maximum of the penalty imposed on
him should be lowered to imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as

881 Santos v. Hon. Paňo, G.R. No. L-55130, January 17, 1983.
882 Baclayon v. Hon. Mutia, 129 SCRA 148.
883 Moreno v. COMELEC, G.R. No. 168550, August 10, 2006 (En Banc).
884 Ibid.
 maximum. With this new penalty, it would be but fair to allow him the right
to apply for probation upon remand of the case to the RTC. Some in the
Court disagrees. They contend that probation is a mere privilege granted by
the state only to qualified convicted offenders. Section 4 of the probation
law (PD 968) provides: That no application for probation shall be entertained
or granted if the defendant has perfected the appeal from the judgment of
conviction. Since the accused appealed his conviction for frustrated
homicide, he should be deemed permanently disqualified from applying for
probation. But, firstly, while it is true that probation is a mere privilege, the
point is not that he has the right to such privilege; he certainly does not
have. What he has is the right to apply for that privilege. The Court finds
that his maximum jail term should only be 2 years and 4 months. If the Court
allows him to apply for probation because of the lowered penalty, it is still
up to the trial judge to decide whether or not to grant him the privilege of
probation, taking into account the full circumstances of his case. Secondly,
it is true that under the probation law the accused who appeals from the
judgment of conviction is disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of conviction have been meted
out to him: one, a conviction for frustrated homicide by the regional trial
court, now set aside; and, two, a conviction for attempted homicide by the
Supreme Court. If the Court chooses to go by the dissenting opinions hard
position, it will apply the probation law on the accused based on the trial
courts annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him. More,
the Supreme Courts judgment of conviction for a lesser offense and a lighter
penalty will also have to bend over to the trial courts judgment even if this
has been found in error. And, worse, he will now also be made to pay for
the trial courts erroneous judgment with the forfeiture of his right to apply
for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the
horse errs, the carabao gets the whip). Where is justice there?885

j) The conditions listed under Section 10 of the Probation Law are not
exclusive. Courts are allowed to impose practically any term it chooses, the
only limitation being that it does not jeopardize the constitutional rights of
the accused. Courts may impose conditions with the end that these
conditions would help the probationer develop into a law-abiding
individual.886

14) Distinction between suspension of sentence and suspension of

promulgation of sentence.

885 Colinares v. People, G.R. No. 182748, December 13, 2011 (En Banc). This decision paved
the amendment of the Probation Law in 2015.
886 Baclayon v. Mutia, G.R. No. 59298, April 30, 1984.
 a) Under the Probation Law what is suspended is the execution of the
sentence, while RA 9344, what is suspended is the pronouncement of the
sentence upon request of the youthful offender. The suspension of the
sentence, however, has no bearing on the civil liability, which is separate
and distinct from the criminal action.887 Although the execution of sentence
is suspended by the grant of probation, it does not follow that the civil liability
of the offender, if any, is extinguished.888

b) If the accused appeals the civil liability, he can still apply for probation.
Suspension of sentence is only true with criminal liability. Probation does
not extinguish civil liability.889

Chapter Thirteen
EXTINCTION OF CRIMINAL LIABILITY

Ways of extinction of criminal liability

Article 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;

887 Budlong v. Apalisok, G.R. No. 60151, June 24, 1983.

888 Salgado v, Court of Appeals, G.R. No. 89606, August 30, 1990.
889 Budlong v. Apalisok, supra.; Salvan vs. People, G.R. No. 153845, September 11, 2003.
 7. By the marriage of the offended woman, as provided in Article 344
of this Code.

Article 90. Prescription of crime. - Crimes punishable by death,

reclusion perpetua or reclusion temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in

fifteen years.

Those punishable by a correctional penalty shall prescribe in ten

years; with the exception of those punishable by arresto mayor, which shall
prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The crime of oral defamation and slander by deed shall prescribe in

six months.

Light offenses prescribe in two months.

When the penalty fixed by law is a compound one, the highest penalty
shall be made the basis of the application of the rules contained in the first,
second and third paragraphs of this article. (As amended by RA 4661,
approved June 19, 1966).

Article 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.

Article 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.

Article 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.

1) Total extinction

a) Death;
b) Service of sentence;
c) Amnesty;
d) Absolute pardon;
e) Prescription of crime;
f) Prescription of penalty; and
g) Marriage.

2) Partial extinction.

a) Conditional pardon;890
b) Commutation of sentence;
c) For good conduct allowances.
d) Other causes of partial extinction (not listed in Article 94) are parole and
probation.

Total extinction of criminal liability

a) Death

i) Concept.

(1) Criminal liability is totally extinguished, inter alia, by death of the

convict, as to the personal penalties; and as to pecuniary penalties,

890 The discussion on conditional pardon is found under the preceding sub-title on Pardon.
 liability therefor is extinguished only when the death of the offender
occurs before final judgment.891

ii) Guidelines to be observed.

(1) Death of the accused pending appeal of his conviction extinguishes

his criminal liability as well as the civil liability based solely
thereon. As opined by Justice Regalado, in this regard, the death of
the accused prior to final judgment terminates his criminal liability
and only the civil liability directly arising from and based solely on the
offense committed, i.e., civil liability ex delicto in senso strictiore.

(2) The claim for civil liability survives notwithstanding the death of the
accused, if the same may also be predicated on a source of
obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil
liability may arise as a result of the same act or omission:

i) Law
ii) Contracts
iii) Quasi-contracts
iv) x x x x x x
v) Quasi-delicts

(3) Where the civil liability survives, as explained in Number (2) above,
an action for recovery therefor may be pursued but only by way of
filing a separate civil action and subject to Section 1, Rule 111 of the
1985 Rules on Criminal Procedure as amended. This separate civil
action may be enforced either against the executor/administrator or
the estate of the accused, depending on the source of obligation
upon which the same is based as explained above.

(4) Finally, the private offended party need not fear a forfeiture of his
right to file this separate civil action by prescription, in cases where
during the prosecution of the criminal action and prior to its extinction,
the private-offended party instituted together therewith the civil
action. In such case, the statute of limitations on the civil liability is
deemed interrupted during the pendency of the criminal case,
conformably with [the] provisions of Article 1155 of the Civil Code,
that should thereby avoid any apprehension on a possible privation

891 Article 89, RPC.

 of right by prescription.892

(a) It is clear that the death of the accused pending appeal of his
conviction extinguishes his criminal liability, as well as the civil
liability ex delicto. The rationale, therefore, is that the criminal
action is extinguished inasmuch as there is no longer a defendant
to stand as the accused, the civil action instituted therein for
recovery of civil liability ex delicto is ipso facto extinguished,
grounded as it is on the criminal case.893

(b) Whether or not appellant was guilty of the crime charged had
become irrelevant because even assuming that appellant did
incur criminal liability and civil liability ex delicto, these were
totally extinguished by his death, following the provisions of
Article 89(1) of the Revised Penal Code.894

(c) Except when the claim for civil liability survives the death of the
accused, if the same may also be predicated on a source of
obligation other than delict, such as law, contract, quasi-contracts
and quasi-delicts. Examples of cases where civil liability survives
the death of the accused:

(i) In case of physical injuries. Under Art. 33 of the Civil Code, it

provides that a civil action for damages may be filed
separately and distinctly from the criminal action.

(ii) In the crime of estafa, when the civil liability arises from a civil
contract as in the contract of sale.

(iii) Death of the offended party does not extinguish the criminal
liability of the offender.

Service of sentence

1) Crime is a debt incurred by the offender as a consequence of this wrongful act

and the penalty is but the amount of his debt. When the payment is made, the
debt is extinguished.895

892 People v. Bayotas, G.R. No. 102007, September 2, 1994; People v. Culas, G.R. No. 211166,
June 5, 2017.
893 People v. Romero, 365 Phil. 531 (1999).
894 People v. Bayotas, supra.
895 Reyes, supra.
 a) Concepts

i) The “conviction and sentence” clause of the statutory definition clearly

signifies that probation affects only the criminal aspect of the case.896
Novation is not a mode of extinguishing criminal liability under the penal
laws of the country. Only the. State may validly waive the criminal action
against an accused. Novation is relevant only to determine if the parties
have meanwhile altered the nature of the obligation prior to the
commencement of the criminal prosecution in order to prevent the
incipient criminal liability of the accused.897

ii) Novation is not a ground under the law to extinguish criminal liability.
Article 89 (on total extinguishment) and Article 94 (on partial
extinguishment) of the Revised Penal Code list down the various
grounds for the extinguishment of criminal liability. Not being included in
the list, novation is limited in its effect only to the civil aspect of the
liability, and, for that reason, is not an efficient defense in estafa. This is
because only the State may validly waive the criminal action against an
accused.898 The role of novation may only be either to prevent the rise
of criminal liability, or to cast doubt on the true nature of the original basic
transaction, whether or not it was such that the breach of the obligation
would not give rise to penal responsibility, as when money loaned is
made to appear as a deposit, or other similar disguise is resorted to.899

(1) The novation theory may perhaps apply prior to the filing of the
criminal information in court by the state prosecutors because up to
that time the original trust relation may be converted by the parties
into an ordinary creditor-debtor situation, thereby placing the
complainant in estoppel to insist on the original trust. But after the
justice authorities have taken cognizance of the crime and instituted
action in court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability, as
distinguished from the civil. The crime being an offense against the
state, only the latter can renounce it.900

Amnesty and pardon

1) Amnesty

896 Budlong v. Apalisok, supra.

897 Degaňos v. People. G.R. No. 162826, October 14, 2013.
898 Article 2034, New Civil Code of the Philippines.
899 People v. Nery, No. L-19567, February 5, 1964.
900 Ibid.
 a) Nature of amnesty.

i) It is an act of sovereign power granting oblivion or a general pardon for

a past offense, and is usually exerted in behalf of certain classes or
persons, who are subject to trial but have not yet been convicted. 901

b) Concepts.

i) Amnesty commonly denotes a general pardon to rebels for their treason

or other high political offenses, or the forgiveness which one sovereign
grants to the subjects of another, who have offended, by some breach,
the law of nations. Amnesty looks backward, and abolishes and puts into
oblivion, the offense itself; it so overlooks and obliterates the offense
with which he is charged, that the person released by amnesty stands
before the law precisely as though he had committed no offense.902

ii) Amnesty presupposes the commission of a crime, and when an accused

maintains that he has not committed a crime, he cannot have any use
for amnesty. Where an amnesty proclamation imposes certain
conditions, as in this case, it is incumbent upon the accused to prove the
existence of such conditions. The invocation of amnesty is in the nature
of a plea of confession and avoidance, which means that the pleader
admits the allegations against him but disclaims liability therefor on
account of intervening facts which, if proved, would being the crime
charged within the scope of the amnesty proclamation.903

(1) Amnesty cannot be invoked, where the accused actually denies the
commission of the offense charged. He must admit that he
committed the crime.904

(2) In the grant of amnesty, the Constitution itself provides that it can be
granted by the President only with the concurrence of the Congress.
The concurrence must be given by a majority of all the members of
the Congress.905
(3) Paragraph 3 of Article 89 of the Revised Penal Code provides that
criminal liability is totally extinguished by amnesty, which completely

901 Brown v. Walker, 161 U.S. 602.

902 People v. Patriarca, et al., G.R. No. 135457, September 29, 2000.
903 People v. Llanita, et al., G.R. No. L-2082, April 26, 1950; People v. Guillermo, et al. G.R. No.

L-2188, May 18, 1950.

904 Vera, et al., v. People, G.R. No. L-18184, January 31, 1963 (En Banc).
905 Cruz, Isagani; Philippine Political Law, page 453, 2014 ed.
 extinguishes the penalty and all its effects.906

(4) Civil liability is not extinguished by amnesty.907

2) Pardon.

a) Nature of pardon.

i) Pardon is an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has
committed. It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it is intended
and not communicated officially to the court.908

ii) A pardon is a deed, to the validity of which delivery is essential, and

delivery is not complete without acceptance.909

b) Kinds of pardon.

i) Absolute pardon;
ii) Conditional pardon.

c) Concepts.

i) Absolute pardon is one extended without any strings attached, so to

speak. The pardonee has no option at all and must accept it whether he
likes it or not.910

ii) Conditional pardon is one under which the convict is required to comply
with certain requirements. The pardonee has the right to reject it since
he may feel that the condition imposed is more onerous than the penalty
sought to be remitted.911

iii) Conditional pardon is in the nature of a contract between the the Chief
Executive and the convicted criminal. By his consent, he has placed
himself under the supervision of the Chief Executive or his delegate who

906 People v. Patriarca, supra.

907 U.S. v. Madlangbayan, 2 Phil. 426.
908 Monsanto v. Factoran, Jr., G.R. No. 78239, February 9, 1989.
909 Monsanto v. Factoran, Ibid.
910 Cruz, supra.
911 Torres v. Gonzales, et al., G.R. No. 76872, July 23, 1987.
 is duty bound to see to it that the pardonee complies with the conditions
of the pardon.912

iv) The conviction by final judgment limitation under the Constitution

prohibits the grant of pardon, whether full or conditional, to an accused
during the pendency of his appeal from his conviction by the trial
court. Any application therefor, if one is made, should not be acted upon
or the process toward its grant should not be begun unless the appeal
is withdrawn. The acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal, and the release of an accused by
virtue of a pardon, commutation of sentence, or parole before the
withdrawal of an appeal shall render those responsible therefor
administratively liable.913

v) In case of violation of conditional parson, the Executive Department has

two options: (i) to proceed against him under Section 64 (i) of the
Revised Administrative Code; or (ii) to proceed against him under Article
159 of the Revised Penal Code.914

vi) However, if the release was effected through amnesty, instead of

pardon, the release of the convict is valid even if the appeal is still
pending. Amnesty may be granted generally before or after the
institution of the criminal prosecution and sometimes after conviction.915

d) Effects of absolute pardon.

i) Pardon granted after conviction frees the individual from all the penalties
and legal disabilities and restores him to all his civil rights. But unless
expressly grounded on the person's innocence (which is rare), it cannot
bring back lost reputation for honesty, integrity and fair dealing.916

ii) Pardon does not ipso facto restore a convicted felon to public office
necessarily relinquished or forfeited by reason of the conviction although
such pardon undoubtedly restores his eligibility for appointment to that
office.917

912 In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong, G.R. No. 122338, December 29,
1995.
913 People v. Salle, G.R. No. 103567, December 4, 1995.
914 Torres v. Gonzales, supra.
915 People v. Casido, et al., G.R. No. 116512, March 7, 1997.
916 Monsanto v. Factoran, supra.
917 Ibid.
 iii) A pardon looks to the future. It is not retrospective. It makes no amends
for the past. It affords no relief for what has been suffered by the
offender. It does not impose upon the government any obligation to
make reparation for what has been suffered. "Since the offense has
been established by judicial proceedings, that which has been done or
suffered while they were in force is presumed to have been rightfully
done and justly suffered, and no satisfaction for it can be required."918

iv) Amnesty and pardon, distinguished. Pardon is granted by the Chief

Executive and as such it is a private act which must be pleaded and
proved by the person pardoned, because the courts take no notice
thereof; while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the courts should
take judicial notice.

v) Pardon is granted to one after conviction; while amnesty is granted to

classes of persons or communities who may be guilty of political
offenses, generally before or after the institution of the criminal
prosecution and sometimes after conviction.

vi) Pardon looks forward and relieves the offender from the consequences
of an offense of which he has been convicted, that is, it abolishes or
forgives the punishment, and for that reason it does not work the
restoration of the rights to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon, and
it in no case exempts the culprit from the payment of the civil indemnity
imposed upon him by the sentence (article 36, Revised Penal
Code). While amnesty looks backward and abolishes and puts into
oblivion the offense itself, it so overlooks and obliterates the offense with
which he is charged that the person released by amnesty stands before
the law precisely as though he had committed no offense.919

vii) Pardon and amnesty do not extinguish the civil liability. Petitioner's civil
liability may only be extinguished by the same causes recognized in the
Civil Code, namely: payment, loss of the thing due, remission of the
debt, merger of the rights of creditor and debtor, compensation and
novation.920

918 Ibid.
919 Barrioquinto v. Fernandez, 82 Phil. 642 [1949]; People v. Casido, et al., G.R. No. 116512,
March 7, 1997.
920 Ibid.
Prescription of crime

1) Prescription of crime is the forfeiture or loss of the right of the State to prosecute
the offender after the lapse of a certain time fixed by law. 921

2) Prescription of crimes (Art. 90) under the Revised Penal Code:

Penalty of the crime Prescriptive Period

20 years
Reclusion perpetua and reclusion temporal

Afflictive penalties 15 years

10 years
Correctional (including destierro)
5 years
Arresto mayor
Libel
1 year
Oral defamation (Grave) 6 months
Oral defamation (Simple) 2 months
Light offenses 2 months

3) If the crimes are punishable by fines, the periods are:

Fine Prescriptive Period

Afflictive 15 years
Correctional 10 years
Light 2 months

4) Prescription of offenses under special laws (Act 3326, as amended by Act

3763)

Period of imprisonment Prescriptive Period

921 People vs. Moran, 44 Phil., 387.

 Fine or imprisonment of not more than one 1 year
month or both
Imprisonment of more than one month but 4 years
less than 2 years
Imprisonment for 2 years but less than 6 years 8 years
Imprisonment for 6 years or more 12 years
Internal Revenue Offenses 5 years
Municipal ordinances 2 months

5) Rules to be observed:

a) Article 91 of the Code provides:

i) The period of prescription commences to run from the day on which

the crime is discovered by the offended party, the authorities or their
agents;
ii) It is interrupted by the filing of the complaint or information;
iii) It commences 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;
iv) The term of prescription shall not run when the offender is absent in
the Philippines.

b) For violations of special laws, prescription shall begin to run from the day of
the commission of the violation of the law, and if the same be not known at
the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.922

c) In resolving the issue of prescription of the offense charged, the following

should be considered:

i) The period of prescription for the offense charged;

ii) The time the period of prescription starts to run; and
iii) The time the prescriptive period was interrupted.923

b) In computing, the first day is to be excluded and the last day included. When
the last day falls on legal holiday or a Sunday, the information can no longer
be filed on the next day as the crime has already prescribed. The waiver or
loss of the right to prosecute such offenders is automatic and by operation
of law. Where the sixtieth and last day to file an information falls on a

922 Section 2, Act 3326.

923 Domingo v. Sandiganbayan, 379 Phil. 708 (2000).
 Sunday or legal holiday, the sixty-day period cannot be extended up to the
next working day. Prescription has automatically set in.924

c) The month in Article 90 of the Revised Penal Code should be understood

to mean the regular 30 — day month in accordance with the provisions of
the Civil Code.925

d) Interruption of the period prescription. Under Article 91 of the Code, the filing
of the complaint or information interrupts the running of the period of
prescription. For purposes of interrupting the period, the said article, in
declaring that the prescriptive period shall be interrupted by the filing of the
complaint or information, does not distinguish whether the complaint is filed
for preliminary examination or investigation only or for an action on the
merits.926 The filing of the complaint even with the fiscal’s office suspends
the running of the statute of limitations.927
e) The rule applies to both crimes under the Revised Penal Code and special
penal laws. There is no more distinction between cases under the RPC and
those covered by special laws with respect to the interruption of the period
of prescription.928 The institution of proceedings for preliminary investigation
against the accused interrupts the period of prescription.929 Even
investigations conducted by the Securities and Exchange Commission for
violations of the Revised Securities Act and the Securities Regulations
Code effectively interrupts the prescription period because it is equivalent
to the preliminary investigation conducted by the DOJ in criminal cases. 930
Commencement of the proceedings for the prosecution of the accused
before the Office of the City Prosecutor effectively interrupted the
prescriptive period for the offenses they had been charged.931

f) For violation of municipal ordinances, the running of the prescriptive period

is not tolled when a complaint with the prosecutor’s office. As it is clearly
provided in the Rule on Summary Procedure that among the offenses it
covers are violations of municipal or city ordinances, it should follow that a

924 Yapdiangco v. Buencamino, G.R. No. L-28841, June 24, 1983.

925 People v. Del Rosario, G.R. No. L-7234, May 21, 1955.
926 People v. Olarte, 19 SCRA 494 (1967) and Reodica v. Court of Appeals, G.R. No. G.R. No.

125066. July 8, 1998.

927 Francisco v. Court of Appeals, 122 SCRA 538 [1983]; People v. Cuaresma, 172 SCRA 415,

[1989]; Reodica v. Court of Appeals, G.R. No. 125066. July 8, 1998.

928 People v. Pangilinan, G.R. No. 152662, June 13, 2012.
929 Llenes v. Dicdican, 328 Phil. 1272 (1996); Brillantes v. Court of Appeals, 483 Phil. 568 (2004);

Ingco, et al. v. Sandiganbayan, G.R. No. 112584, May 23, 1997.

930 Securities and Exchange Commission v. Interport Resources Corp. Inc., G.R. No. 135808, 6

October 2008.
931 Panaguiton v. Department of Justice, G.R. No. 167571, November 25, 2008.
 charge for violation of a municipal ordinance, is governed by that rule and
not by Section 1 of Rule 110. Under Section 9 of the Rule on Summary
Procedure, The prosecution of criminal cases falling within the scope of this
Rule shall be either by complaint or by information filed directly in court
without need of a prior preliminary examination or preliminary investigation.
Although this provision does not prevent the prosecutor from conducting a
preliminary investigation if he wants to, the case shall be deemed
commenced only when it is filed in court, whether or not the prosecution
decides to conduct a preliminary investigation. This means that the running
of the prescriptive period shall be halted on the date the case is actual filed
in court and not on any date before that. This interpretation is in consonance
with the afore-quoted Act No. 3326 which says that the period of
prescription shall be suspended "when proceedings are instituted against
the guilty party." The proceedings referred to in Section 2 thereof are
"judicial proceedings." In conclusion, the Court held that if there be a conflict
between the Rule on Summary Procedure (creation of Sec. 36 of BP Blg.
129) and Section 1 of Rule 110 of the Rules on Criminal Procedure, the
former should prevail as the special law. And if there be a conflict between
Act No. 3326 and Rule 110 of the Rules on Criminal Procedure, the latter
must again yield because this Court, in the exercise of its rule-making
power, is not allowed to "diminish, increase or modify substantive rights"
under Article VIII, Section 5 (5) of the Constitution Prescription in criminal
cases is a substantive right.932

g) However, in a subsequent case, interpreting the provision of the same law,

Act No. 3326, on prescription which reads “Prescription shall begin to run
from the day of the commission of the violation of the law, and if the same
be not known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment,” the Court held
that “while it may be observed that the term "judicial proceedings" in Sec. 2
of Act No. 3326 appears before "investigation and punishment" in the old
law, with the subsequent change in set-up whereby the investigation of the
charge for purposes of prosecution has become the exclusive function of
the executive branch, the term "proceedings" should now be understood
either executive or judicial in character: executive when it involves the
investigation phase and judicial when it refers to the trial and judgment
stage. With this clarification, any kind of investigative proceeding instituted
against the guilty person which may ultimately lead to his prosecution
should be sufficient to toll prescription.”933

932 Zaldivia v. Reyes, et al., G.R. No. 102342. July 3, 1992.

933 Panaguiton v. DOJ, supra.
 h) In another much later case, the Court reiterated the ruling that with regard
to the prescription period, Act No. 3326, as amended, is the only statute
that provides for any prescriptive period for the violation of special laws and
municipal ordinances. No other special law provides any other prescriptive
period, and the law does not provide any other distinction. Moreover, as
provided in the Revised Rules on Summary Procedure, only the filing of an
Information tolls the prescriptive period where the crime charged is involved
in an ordinance. As it is clearly provided in the Rule on Summary Procedure
that among the offenses it covers are violations of municipal or city
ordinances, it should follow that the charge against the petitioner, which is
for violation of a municipal ordinance of Rodriguez, is governed by that rule
and not Section 1 of Rule 110.934

i) To harmonize, the doctrines enunciated in Zaldivia and Jadewell apply only

to cases covered by the Rules on Summary Procedure, and that includes
violation of municipal (city) ordinance. In all cases, the running of the
prescriptive period is not tolled when a complaint is filed with the
prosecutor’s office because it is expressly stated thereunder that
commencement of the cases is done by filing either of complaint or
information directly with court without need of a prior preliminary
examination or preliminary investigation. Meaning, the conduct of
preliminary investigation by the prosecutor’s office is not condition
precedent. Should it conduct a preliminary investigation, the prescriptive
period shall continue to run. On the other hand, in cases not covered by the
Rules on Summary Procedure where a preliminary investigation is required,
the filing of the complaint with the prosecutor’s office tolls the running of the
period. The provisions of Act No. 3326 pertaining to judicial proceedings
should be understood “executive in character” for purposes of tolling the
period in connection with the conduct of preliminary investigation (and in
accordance with Panaguiton doctrine).

j) As to the issue whether the prescriptive period began to run anew after the
investigating prosecutor’s recommendation to file the proper criminal
information against respondent was approved by the City Prosecutor, the
answer is in the negative. The proceeding is not terminated upon the City
Prosecutor's approval of the investigating prosecutor's recommendation
that an information be filed with the court. The prescriptive period remains
tolled from the time the complaint was filed with the Office of the Prosecutor
until such time that respondent is either convicted or acquitted by the proper
court.935

934 Jadewell Parking Systems Corp. v. Lidua, et al., G.R. No. 169588, October 7, 2013.
935 People v. Bautista, G.R. No. 168641, April 27, 2007.
 k) For violation of special penal laws, the absence of the offender from the
Philippines does not toll the running of the prescriptive period. Section 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 Section 2 of Act
No. 3326 did not intend such an interruption of the prescription unlike the
explicit mandate of Article 91. In the prosecution for violation of RA 3019
(Anti-Graft and Corrupt Practices Act), the law on prescription is found in
Act 3326 which does not provide for the interruption of the period based on
the absence of the offender. The only inference that can be gathered from
the foregoing is that the legislature, in enacting Act No. 3326, did not
consider the absence of the accused from the Philippines as a hindrance to
the running of the prescriptive period.936

l) The Revised Penal Code explicitly states that the absence of the accused
from the Philippines shall be a ground for the tolling of the prescriptive
period while Act No. 3326 does not. In such a situation, Act No. 3326 must
prevail over Article 91 because it specifically and directly applies to special
laws while the Revised Penal Code shall apply to special laws only
suppletorily and only when the latter do not provide the contrary. Indeed,
elementary rules of statutory construction dictate that special legal
provisions must prevail over general ones.937

m) Suspension of prescriptive period under Katarungang Pambarangay Law.

The Local Government Code) states while the dispute is under mediation,
conciliation, or arbitration, the prescriptive periods for offenses and cause
of action under existing laws shall be interrupted upon filing of the complaint
with the punong barangay.938 The law provides for the suspension of the
prescriptive periods of offenses during the pendency of the mediation,
conciliation, or arbitration process.939

n) To determine the prescriptibility of an offense penalized with a fine, whether

imposed as a single or as an alternative penalty, such fine should not be
reduced or converted into a prison term, but rather it should be considered
as such fine under Article 26 of the Revised Penal Code; 940

o) Light offenses, for purpose of computing prescription, should be understood

in the light of the definition "light offense" under Article 9 (not under Article

936 Romualdez v. Marcelo, et al., G.R. No. 165510-33, July 28, 2006.
937 Ibid.
938 Section 410, RA 7160.
939 Uy v. Contreras, et al., G.R. No. 111416 September 26, 1994.
940 People v. Basalo, 101 Phil. 57.
 26), and hence, prescribes in two months under Article 90. Article 26 has
nothing to do with the definition of offenses, but merely classifies fine, when
imposed as a principal penalty, whether singly or in the alternative into the
categories of afflictive, correctional, and light penalties.941

p) In continuing crimes, the period of prescription never runs.942

Prescription of penalties.

1) Prescription of penalty is the loss of the right of the State to execute the final
sentence after a lapse of a certain time.

a) Requisites:

i) That the penalty is imposed by final judgement;

ii) That the convict evaded the service of the sentence by escaping during
the term of his sentence;
iii) That the convict who escaped from prison has not given himself up, or
been captured, or gone to foreign country with which the Philippines has
not extradition treaty, or committed another crime;
iv) That the penalty has prescribed, because the lapse of time from the date
of evasion of the service of the sentence by the convict.

Penalty Prescriptive Period

Reclusion perpetua 20 years

Afflictive penalties 15 years
Correctional penalties 10 years
Arresto mayor 5 years
Light penalties 1 1 1year

b) Rules to be observed:

i) The period of prescription of penalties commences to run from the date

when the convict evaded the service of sentence.
ii) It is interrupted if the convict:
iii) Gives himself up;
iv) Be captured;

941
People v. Hai, G.R. No. L-9598, August 15, 1956.
942 People v. Bellasillo, 81 Phil. 190.
 v) Goes to foreign country with which the Philippines has no extradition
treaty;
vi) Commits another crime before the expiration of the period of prescription.

c) Concepts

i) Evasion of service of sentence same as that of Article 157. For

prescription of penalties to apply, it is required that the convict must
evade the service of sentence. The concept of evasion of sentence is
the same as that of Article 157 of the Revised Penal Code. Elements of
evasion of service of sentence are: (1) the offender is a convict by final
judgment; (2) he "is serving his sentence which consists in deprivation
of liberty"; and (3) he evades service of sentence by escaping during the
term of his sentence. A convict evades "service of his sentence", by
"escaping during the term of his imprisonment by reason of final
judgment." That escape should take place while serving sentence.943

ii) According to Article 93 of the Revised Penal Code the period of

prescription of penalties commences to run from the date when the
culprit should evade the service of his sentence. It is evident from this
provision that evasion of the sentence is an essential element of
prescription. There has been no such evasion in this case. Even if there
had been one and prescription were to be applied, its basis would have
to be the evasion of the unserved sentence, and computation could not
have started earlier than the date of the order for the prisoner's re-
arrest.944

iii) Article 93 of the Revised Penal Code provides when the prescription of
penalties shall commence to run. Under said provision, it shall
commence to run from the date the felon evades the service of his
sentence. Pursuant to Article 157 of the same Code, evasion of service
of sentence can be committed only by those who have been convicted
by final judgment by escaping during the term of his sentence. "Escape"
in legal parlance and for purposes of Articles 93 and 157 of the RPC
means unlawful departure of prisoner from the limits of his custody.
Clearly, one who has not been committed to prison cannot be said to
have escaped therefrom.945

943 Tanega v. Masakayan, G.R. No. L-27191, February 28, 1967.

944 Infante v. Warden, G.R. No. L-4164 December 12, 1952; cited in Pangan v. Gatbalite, et al.,
G.R. No. 141718, January 21, 2005.
945 Del Castillo v. Torrecampo, et al., G.R. No. 139033, December 18, 2002.
 iv) No evasion of service. One who had been granted a conditional pardon
and was re-arrested cannot be considered as evaded his sentence.946

Marriage.

1) Marriages contracted between the offender and the offended party in the crime
of rape, as well as in the crime of abuse of chastity (seduction, abduction, acts
of lasciviousness), to totally extinguish the criminal liability of and the
corresponding penalty that may have been imposed upon those found guilty of
the felony.947 The marriage was entered into in bad faith.

2) Bases of the extinction are Articles 89 and 344 of the Revised Penal Code.

Partial extinction of criminal liability

Commutation of sentence

1) It is a change of the decision of the court made by the Chief Executive by

reducing the degree of penalty inflicted upon the convict, or by decreasing the
length of the imprisonment or the amount of fine.948

2) Parole consists in the suspension of the sentence of a convict after serving the
minimum of the sentence imposed without granting a pardon, prescribing the
terms upon which the sentence shall be suspended.949

3) Conditional pardon distinguished from parole.

4) Conditional pardon is given by the Chief Executive after conviction under the
provisions of the Revised Administrative Code, while parole is given by the
Board of Pardon and Parole to a prisoner who served the minimum of an
indeterminate sentence.;

5) For violation of conditional pardon, the offender may either be re-arrested to

serve the remitted penalty or prosecuted under Article 159, whereas for
violation of parole, the convict is re-arrested to serve the unexpired portion of
the penalty.950

946 Infante v. Warden, supra.

947 People v. De Guzman, G.R. No. 185843, March 3, 2010.
948 Reyes, supra.
949 Gregorio, supra.
950 Ibid.
Good conduct allowance (Article 97 as amended RA 10592)

Article 97. Allowance for good conduct. – The good conduct of any
offender qualified for credit for preventive imprisonment pursuant to Article
29 of this Code, or of any convicted prisoner in any penal institution,
rehabilitation or detention center or any other local jail shall entitle him to
the following deductions from the period of his sentence:

1. During the first two years of imprisonment, he shall be allowed a

deduction of twenty days for each month of good behavior during
detention;

2. During the third to the fifth year, inclusive, of his imprisonment, he

shall be allowed a reduction of twenty-three days for each month of good
behavior during detention;

3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of twenty-five days for
each month of good behavior during detention;

4. During the eleventh and successive years of his imprisonment, he

shall be allowed a deduction of thirty days for each month of good
behavior during detention; and

5. At any time during the period of imprisonment, he shall be allowed

another deduction of fifteen days, in addition to numbers one to four
hereof, for each month of study, teaching or mentoring service time
rendered.

An appeal by the accused shall not deprive him of entitlement to the

above allowances for good conduct."

1) Nature.

a) Good conduct time allowance reduces the actual time a prisoner will serve
his prison sentence. It arises from having observed prison rules and
regulations and it automatically accrues whenever a person exemplifies
good behavior or spends time for studying, teaching, or mentoring other
prisoners.

2) Who are covered.

a) The good conduct of any offender qualified for credit for preventive
imprisonment pursuant to Article 29 of this Code; and
 b) any convicted prisoner in any penal institution, rehabilitation or detention
center or any other local jail.

3) Period to be deducted.

a) First two years of imprisonment, 20 days off for each month.

b) Third and Fifth year, 23 days off.
c) Following year up to 10th year, 25 days off.
d) Eleventh and successive years, 30 days off.
e) Additional deduction period of fifteen days, in addition to numbers one to
four hereof, for each month of study, teaching or mentoring service time
rendered.
f) Appeal shall not deprive the accused of entitlement to the allowances of
good conduct.

4) Who grants the allowance:

a) the Director of the Bureau of Corrections;

b) the Chief of the Bureau of Jail Management and Penology; and/or
c) the Warden of a provincial, district, municipal or city jail.

5) Effect of the grant.

a) Such allowances once granted shall not be revoked.

6) Faithful compliance is enjoined. The penalty of one (1) year imprisonment, a

fine of One hundred thousand pesos (P100,000.00) and perpetual
disqualification to hold office shall be imposed against any public officer or
employee who violates this law.

7) Concepts.

a) The allowance is given in consideration of the good conduct of the prisoner

while serving the sentence. Therefore, there is no allowance of good
conduct while prisoner is released under conditional pardon.951

b) These allowances are granted by the Director of Bureau of Corrections, the

Chief of the Bureau of Jail Management and Penology and/or the Warden
of a provincial, district, municipal or city jail shall grant allowances for good
conduct, and once given cannot be revoked.

951 People v. Martin, 68 Phil 122.

 c) The trial court has no power to grant the accused time allowances for good
conduct because in accordance with Article 99 of the Revised Penal Code
it is the Director of the Prisons who shall grant allowances for good conduct
if such good conduct has been observed by the prisoner concerned.952

Special time allowance for loyalty (Article 98, as amended by RA 10592)

Article 98. Special time allowance for loyalty. – A deduction of one fifth
of the period of his sentence shall be granted to any prisoner who, having
evaded his preventive imprisonment or the service of his sentence under the
circumstances mentioned in Article 158 of this Code, gives himself up to the
authorities within 48 hours following the issuance of a proclamation
announcing the passing away of the calamity or catastrophe referred to in
said article. A deduction of two-fifths of the period of his sentence shall be
granted in case said prisoner chose to stay in the place of his confinement
notwithstanding the existence of a calamity or catastrophe enumerated in
Article 158 of this Code.

This Article shall apply to any prisoner whether undergoing preventive

imprisonment or serving sentence.

1) Who are entitled.

a) any detention prisoner who is one prisoner who is preventive imprisonment;

or
b) a convicted offender serving his sentence.

2) Requisites

a) First type.

i) The prisoner is either a detention prisoner or convicted offender serving

his sentence;

ii) He evades his detention or service of sentence by leaving the jail

facilities or penal institution;

iii) On the occasion of disorder resulting from a conflagration, earthquake,

explosion, or similar catastrophe, or during a mutiny in which he has not
participated;

952 Kabigting v. Director of Prisons, G.R. No. L-12276, Aug. 26, 1958.
 iv) He gives himself up to the authorities within 48 hours following the
issuance of a proclamation announcing the passing away of the calamity
or catastrophe or mutiny.

b) Second type.

i) The prisoner is either a detention prisoner or convicted offender serving

his sentence;

ii) There is disorder resulting from a conflagration, earthquake, explosion,

or similar catastrophe, or during a mutiny in which he has not
participated in his place of confinement;

iii) He chooses to stay therein despite the said calamity, catastrophe or

mutiny.

c) Period of deduction

i) For first type – one-fifth (1/5) of the period of the sentence;

ii) For second type – two-fifths (2/5) of the period of the sentence.

3) Concepts.

a) A prisoner who evades the preventive imprisonment or service of sentence

by leaving the place of confinement due to catastrophe, calamity, or mutiny,
and fails to give himself up to the authorities within 48 hours following the
proclamation of passing away of such calamity is liable under Article 158
for evasion of service of sentence. He shall suffer an increase of one-fifth
of the time still remaining to be served under the original sentence, which in
no case exceeds six months.

b) Take note, however, that Article 158 has not been amended unlike Article
98 of the Code. Under Article 98, the prisoner is either a detention prisoner
or a convict by final judgment. The offender for evasion of service under
Article 158 is a convict serving final judgment.

c) Mutiny under Article 158, implies an organized unlawful resistance to a

superior officer, a sedition, a revolt.953

953 Reyes, supra., citing People v. Padilla, (CA) 46 O.G. 2151.

 Chapter Fourteen
CIVIL LIABILITY ARISING FROM CRIMES

Article 100. Civil liability of a person guilty of felony. - Every person

criminally liable for a felony is also civilly liable.

Article 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.

1) Purpose of civil actions.

a) While the purpose of criminal action is not only to punish offender and deter
others from committing crimes, the purpose of civil action is for the
restitution, reparation or indemnification of the private offended party for the
damage or injury he sustained by reason of the felonious act of the
accused.954

b) Laws governing civil Liability arising from crimes.

i) Article 100, Revised Penal Code. Every person criminally liable is civilly
liable.

954 Lo Bun Tiong v. Balboa, G.R. No. 158177, January 28, 2008.
 ii) Article 20, New Civil Code. Every person who contrary to law, willfully or
negligently causes damage to another, shall indemnify the latter for the
same.

iii) Article 2176, New Civil Code. The civil liability arising from negligence
under the Revised Penal Code is entirely distinct and separate from
responsibility for fault or negligence called quasi-delict.

iv) Article 1161, Civil Code. Civil obligation arising from criminal offenses
shall be governed by penal laws subject to the provision of Article 2177.

v) Article 1157, New Civil Code. Obligations arise from:

(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law;
(5) Quasi-delicts.

c) Specific rules regarding civil liability.

i) Insane or imbecile persons. – The civil liability is imposed upon those

having legal authority or control over them except when there was no
fault or negligence of their part.

ii) Juvenile delinquents (CICL) - Parents and other persons exercising

parental authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children living
in their company and under their parental authority subject to the
appropriate defenses provided by law.955

iii) State of necessity - Generally, the offender is not civilly liable. The
person benefitted by the act is civilly liable.

iv) Compulsion of irresistible force/Impulse of uncontrollable fear – the

persons using violence or causing fear are civilly liable.

d) How civil liability arising from delicts is enforced.

i) Through a civil action that is deemed impliedly instituted in the criminal

action;

955 Art. 221, Family Code.

 ii) Through a civil action that is filed separately either before the criminal
action or after upon reservation of the right to file it separately in the
criminal action.956

e) Civil action is impliedly instituted in criminal action.

i) When a criminal action is instituted, the civil action for the recovery
arising from the offense charged is deemed instituted except (a) where
there is waiver, (b) there is reservation to file it separately; or institution
of civil action prior to criminal action.957

ii) What is deemed instituted is only the action to recover civil liability
arising from the crime.

iii) The waiver must be made before the court where the criminal action is
pending. It must be made by the offended party.

iv) After the criminal action has been commenced, the separate civil action
arising therefrom cannot be instituted until final judgment has been
entered in the criminal action.958

v) The offended party is given the option to file a separate civil action by
reserving the right in the criminal action. The reservation must be made
before the prosecution presents its evidence. The offended party is
deemed to make such reservation if he files a separate civil action before
the filing of criminal action. The civil action is suspended.959

vi) If the criminal action is filed after the civil action has already been
instituted, the latter shall be suspended in whatever stage it may be
found before judgment on the merits. The suspension shall last until final
judgment is rendered.960

vii) Independent civil actions (ICAs) are those provided under Articles 32,
33, 34, and 2176 of the Civil Code. They may be filed separately and
prosecuted independently even without reservation in the criminal
action. Failure to make reservation in the criminal action is not a waiver
of the right to file separate or independent action.

956 Co v. Munoz, G.R. No. 181986, December 4, 2013.

957 Section 1, Rule 111, 2000 Revised Rules on Criminal Procedure.
958 Section 2, Ibid.
959 Moya, Salvador; The 2000 Rules of Criminal Procedure Notes and Cases, 2017 ed.
960 Ibid.
 (1) Article 32 – refers to action against a public officer or employee, or
private individual who obstructs, defeats, or violation, or in any
manner impedes the rights and liberties of another person;
(2) Article 33 – in cases of defamation, fraud and physical injuries;
(3) Article 34 – refers to an action against member of a city or municipal
police force who refuses or fails to render aid or protection to any
person in danger of life or property;
(4) Article 2176 – refers to torts or quasi-delicts.

f) Rules regarding criminal and civil prosecution for violation of BP Blg. 22.

i) Section 1, Rule 111 of the Rules of Court specifically provides that:

(1) The criminal action for violation of Batas Pambansa Blg. 22 shall be
deemed to include the corresponding civil action. No reservation to
file such civil action separately shall be allowed.

ii) With respect to criminal actions for violation of BP 22, it is explicitly clear
that the corresponding civil action is deemed included and that a
reservation to file such separately is not allowed.

iii) There is no independent civil action to recover the value of a bouncing

check issued in contravention of BP 22.961

iv) May the accused be held civilly liable in estafa case after he was
acquitted in the case for violation of BP Blg. 22? Yes. While the filing of
the two sets of Information under the provisions of BP Blg. 22 and under
the provisions of the Revised Penal Code, as amended, on estafa, may
refer to identical acts committed by the petitioner, the prosecution
thereof cannot be limited to one offense, because a single criminal act
may give rise to a multiplicity of offenses and where there is variance or
differences between the elements of an offense is one law and another
law as in the case at bar there will be no double jeopardy because what
the rule on double jeopardy prohibits refers to identity of elements in the
two (2) offenses. Otherwise stated, prosecution for the same act is not
prohibited. What is forbidden is prosecution for the same offense.
Hence, the mere filing of the two (2) sets of information does not itself
give rise to double jeopardy.962

v) Reason for the prohibition: This rule was enacted to help declog court
dockets which are filled with B.P. 22 cases as creditors actually use the

961 Heirs of Eduardo Simon v. Chan, et al., G.R. No. 157457, February 23, 2011.
962 Rimando v. Aldaba, et al., G.R. No. 203583, October 13, 2014.
 courts as collectors. Because ordinarily no filing fee is charged in
criminal cases for actual damages, the payee uses the intimidating effect
of a criminal charge to collect his credit gratis and sometimes, upon
being paid, the trial court is not even informed thereof. The inclusion of
the civil action in the criminal case is expected to significantly lower the
number of cases filed before the courts for collection based on
dishonored checks. It is also expected to expedite the disposition of
these cases. Instead of instituting two separate cases, one for criminal
and another for civil, only a single suit shall be filed and tried.963

g) Effect of acquittal on civil liability.

i) The acquittal of an accused of the crime charged does not necessarily

extinguish his civil liability.964 The extinction of the penal action does not
carry with it the extinction of the civil liability where: (a) the acquittal is
based on reasonable doubt as only preponderance of evidence is
required; (b) the court declares that the liability of the accused is only
civil; and (c) the civil liability of the accused does not arise from or is not
based upon the crime of which the accused is acquitted. However, the
civil action based on delict may be deemed extinguished if there is a
finding on the final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist or where the
accused did not commit the acts or omission imputed to him.965

ii) Thus, if demurrer is granted and the accused is acquitted by the court,
the accused has the right to adduce evidence on the civil aspect of the
case unless the court also declares that the act or omission from which
the civil liability may arise did not exist. This is because when the
accused files a demurrer to evidence, he has not yet adduced evidence
both on the criminal and civil aspects of the case. The only evidence on
record is the evidence for the prosecution. What the trial court should do
is issue an order or partial judgment granting the demurrer to evidence
and acquitting the accused, and set the case for continuation of trial for
the accused to adduce evidence on the civil aspect of the case and for
the private complainant to adduce evidence by way of rebuttal.
Thereafter, the court shall render judgment on the civil aspect of the
case.966

963 Hyatt Industrial Manufacturing Corporation v. Asia Dynamic Electrix Corporation, G.R. No.
163597, July 29, 2005.
964 Daluraya v. Oliva, G.R. No. 210148, December 8, 2014.
965 Dayap v. Sendiong, 597 Phil. 127 (2009).
966 Ibid. citing Hun Hyung Park v. Eung Won Choi, 544 Phil. 431, 444 (2007).
 iii) In case of an acquittal, the Rules of Court requires that the judgment
state whether the evidence of the prosecution absolutely failed to prove
the guilt of the accused or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment shall determine if the act
or omission from which the civil liability might arise did not exist.967

Kinds of civil liability.

Article 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.

Article 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.

Article 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.

Article 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.

Article 108. Obligation to make restoration, reparation for damages, or

indemnification for consequential damages and actions to demand the

967 Daluraya v. Oliva, supra.

same; Upon whom it devolves. - The obligation to make restoration or
reparation for damages and indemnification for consequential damages
devolves upon the heirs of the person liable.

The action to demand restoration, reparation, and indemnification

likewise descends to the heirs of the person injured.

Article 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.

1) Restitution. Restitution is defined as the compensation for loss; it is full or partial

compensation paid by a criminal to a victim ordered as part of a criminal
sentence or as a condition for probation. The thing itself must be restored even
if found in the possession of a third person who acquired it by lawful means.
This rule however will not apply if the possessor of the thing has acquired it in
good faith at a public sale. He must be reimbursed of the price paid therefor.

2) Reparation. Reparation and indemnification are similarly defined as the

compensation for an injury, wrong, loss, or damage sustained. Reparation is
made if restitution is no longer possible. The court determines the amount of
damages by considering the price of the thing and its special sentimental value.
If there is no evidence as to the value, there can be no reparation. Reparation
is generally made to the victims of crimes against property.

3) Indemnification for consequential damages. Damages may be defined as the

pecuniary compensation, recompense, or satisfaction for an injury sustained,
or, as otherwise expressed, the pecuniary consequences that the law imposes
for the breach of some duty or the violation of some right.968 As such, damages
refer to the amount in money awarded by the court as a remedy for the
injured.969

4) Although money has been accepted as the most frequently used means of
punishing, deterring, compensating and regulating injury throughout the legal
system, it has been explained that money in the context of damages is not

968People v. Ballesteros, G.R. No. 120921, January29, 1998.

969Casis, Rommel J., Analysis of Philippine law and Jurisprudence on Damages, University of the
Philippines College of Law, 2012, p.2.
 awarded as a replacement for other money, but as substitute for that which is
generally more important than money; it is the best thing that a court can do.970

5) The civil indemnity for death, being compensatory in nature, must attune to
contemporaneous economic realities; otherwise, the desire to justly indemnify
would be thwarted or rendered meaningless. This has been the legislative
justification for pegging the minimum, but not the maximum, of the indemnity.971

6) Damages recoverable in case of death.972

a) Death indemnity refers to the award given to the heirs of the deceased as
a form of monetary restitution or compensation for the death of the victim at
the hands of the accused. Its grant is mandatory and a matter of course,
and without need of proof other than the fact of death as the result of the
crime or quasi-delict. It derives from the legal obligation of the accused or
the defendant to fully compensate the heirs of the deceased for his death
as the natural consequence of the criminal or quasi-delictual act or
omission;

b) Loss of earning capacity of the deceased to be paid to the heirs of the latter;

i) Formula: The formula for the computation of unearned income is:

Net Earning Capacity = life expectancy x (gross annual income -

reasonable and necessary living expenses).

Life expectancy is determined in accordance with the formula:

2/3 x [80 age of deceased at the time of death]

(a) Jurisprudence provides that the first factor, i.e., life expectancy,
shall be computed by applying the formula (2/3 x [80 - age at
death]) adopted in the American Expectancy Table of Mortality or
the Actuarial of Combined Experience Table of Mortality.973

970 Ibid.
971 People v. Oandasan, G.R. No. 194605, June 14, 2016 (En Banc).
972 Ibid.
973 Candano Shipping Lines, Inc. v. Sugata-on, G.R. No. 163212, March 13, 2007.
 c) The heirs may demand support from the person causing the death, for a
period not exceeding five years, the exact duration to be fixed by the court;

d) Moral damages for mental anguish by reason of the death of the deceased
may be demanded by the heirs of the latter.

e) Exemplary damages can be awarded, not only due to the presence of an

aggravating circumstance, but also where the circumstances of the case
show the highly reprehensible or outrageous conduct of the offender.

f) Temperate damages can be awarded when no documentary evidence of

burial or funeral expenses is presented in court.

g) In addition, the foregoing are subject to interest at the rate of six percent
(6%) per annum from the finality of the decision until fully paid.

Guidelines on fixing the civil liabilities in specific crimes resulting in the

death of the victims.974

1) For those crimes like, Murder, Parricide, Serious Intentional

Mutilation, Infanticide, and other crimes involving death of a victim where the
penalty consists of indivisible penalties:

a) Where the penalty imposed is death but reduced to reclusion

perpetua because of RA 9346:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

b) Where the crime committed was not consummated:

i) Frustrated:
(1) Civil indemnity – ₱75,000.00
(2) Moral damages – ₱75,000.00
(3) Exemplary damages – ₱75,000.00
i) Attempted:
(1) Civil indemnity – ₱50,000.00
(2) Exemplary damages – ₱50,000.00
(3) Exemplary damages – ₱50,000.00

974 People v. Jugueta, G.R. No. 202124, April 6, 2016 (En Banc).
 c) Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

d) Where the crime committed was not consummated:

i) Frustrated:
(1) Civil indemnity – ₱50,000.00
(2) Moral damages – ₱50,000.00
(3) Exemplary damages – ₱50,000.00

ii) Attempted:
(1) Civil indemnity – ₱25,000.00
(2) Moral damages – ₱25,000.00
(3) Exemplary damages – ₱25,000.00

2) For Simple Rape/Qualified Rape:

a) Where the penalty imposed is Death but reduced to reclusion

perpetua because of RA 9346:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

b) Where the crime committed was not consummated but merely attempted:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00
iii) Exemplary damages – ₱50,000.00

c) Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

d) Where the crime committed was not consummated, but merely attempted:
 i) Civil indemnity – ₱25,000.00
ii) Moral damages – ₱25,000.00
iii) Exemplary damages – ₱25,000.00

3) For Complex crimes under Article 48 of the Revised Penal Code where death,
injuries, or sexual abuse results, the civil indemnity, moral damages and
exemplary damages will depend on the penalty, extent of violence and sexual
abuse; and the number of victims where the penalty consists of indivisible
penalties:

a) Where the penalty imposed is Death but reduced to reclusion

perpetua because of RA 9346:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

b) Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

4) The above Rules apply to every victim who dies as a result of the crime
committed. In other complex crimes where death does not result, like in
Forcible Abduction with Rape, the civil indemnity, moral and exemplary
damages depend on the prescribed penalty and the penalty imposed, as the
case may be.

5) For Special Complex Crimes like Robbery with Homicide, Robbery with Rape,
Robbery with Intentional Mutilation, Robbery with Arson, Rape with
Homicide, Kidnapping with Murder, Carnapping with Homicide or Carnapping
with Rape, Highway Robbery with Homicide, Qualified Piracy, Arson with
Homicide, Hazing with Death, Rape, Sodomy or Mutilation and other crimes
with death, injuries, and sexual abuse as the composite crimes, where the
penalty consists of indivisible penalties:

a) Where the penalty imposed is Death but reduced to reclusion

perpetua because of RA 9346:

i) Civil indemnity – ₱100,000.00

ii) Moral damages – ₱100,000.00
 iii) Exemplary damages – ₱100,000.00

(1) In Robbery with Intentional Mutilation, the amount of damages is the

same as the above if the penalty imposed is Death but reduced
to reclusion perpetua although death did not occur.

b) For the victims who suffered mortal/fatal wounds and could have died if not
for a timely medical intervention, the following shall be awarded:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

c) For the victims who suffered non-mortal/non-fatal injuries:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00
iii) Exemplary damages – ₱50,000.00

d) Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00

(1) In Robbery with Intentional Mutilation, the amount of damages is the

same as the above if the penalty imposed is reclusion perpetua.

e) For the victims who suffered mortal/fatal wounds and could have died if not
for a timely medical intervention, the following shall be awarded:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00
iii) Exemplary damages – ₱50,000.00

f) For the victims who suffered non-mortal/non-fatal injuries:

i) Civil indemnity – ₱25,000.00
ii) Moral damages – ₱25,000.00
iii) Exemplary damages – ₱25,000.00
(1) In Robbery with Physical Injuries, the amount of damages shall
likewise be dependent on the nature/severity of the wounds
sustained, whether fatal or non-fatal.
 (2) The above Rules do not apply if in the crime of Robbery with
Homicide, the robber/s or perpetrator/s are themselves killed or
injured in the incident.

(3) Where the component crime is rape, the above Rules shall likewise
apply, and that for every additional rape committed, whether against
the same victim or other victims, the victims shall be entitled to the
same damages unless the other crimes of rape are treated as
separate crimes, in which case, the damages awarded to simple
rape/qualified rape shall apply.

6) In other crimes that result in the death of a victim and the penalty consists of
divisible penalties, i.e., Homicide, Death under Tumultuous Affray, Infanticide to
conceal the dishonor of the offender, Reckless Imprudence Resulting to
Homicide, Duel, Intentional Abortion and Unintentional Abortion, etc.:

a) Where the crime was consummated:

i) Civil indemnity – ₱50,000.00

ii) Moral damages – ₱50,000.00

b) Where the crime committed was not consummated, except those crimes
where there are no stages, i.e., Reckless Imprudence and Death under
tumultuous affray:

i. Frustrated:
(1) Civil indemnity – ₱30,000.00
(2) Moral damages – ₱30,000.00

b) Attempted:
(1) Civil indemnity – ₱20,000.00
(2) Moral damages – ₱20,000.00

(a) If an aggravating circumstance was proven during the trial, even if

not alleged in the Information, in addition to the above mentioned
amounts as civil indemnity and moral damages, the amount of
₱50,000.00 exemplary damages for consummated; ₱30,000.00 for
frustrated; and ₱20,000.00 for attempted, shall be awarded.

7) In the crime of Rebellion where the imposable penalty is reclusion perpetua and
death occurs in the course of the rebellion, the heirs of those who died are
entitled to the following:
 i) Civil indemnity – ₱100,000.00
ii) Moral damages – ₱100,000.00
iii) Exemplary damages – ₱100,000.00

a) For the victims who suffered mortal/fatal wounds in the course of the
rebellion and could have died if not for a timely medical intervention, the
following shall be awarded:

i) Civil indemnity – ₱75,000.00

ii) Moral damages – ₱75,000.00
iii) Exemplary damages – ₱75,000.00
b) For the victims who suffered non-mortal/non-fatal injuries:

(i) Civil indemnity – ₱50,000.00

(ii) Moral damages – ₱50,000.00
(iii) Exemplary damages – ₱50,000.00

(1) In all of the above instances, when no documentary evidence of

burial or funeral expenses is presented in court, the amount of
₱50,000.00 as temperate damages shall be awarded.

(2) In addition, the civil indemnity, moral damages, exemplary damages

and temperate damages payable by the accused are subject to
interest at the rate of six percent (6%) per annum from the finality of
the decision until fully paid.975

Rules on subsidiary liability.

Article 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

975 Dario Nacar v. Gallery Frames and/or Felipe Bordey, Jr., G.R. No. 189871, August 13, 2013.
followed the directions which such innkeeper or his representative may have
given them with respect to the care and vigilance over such goods. No
liability shall attach in case of robbery with violence against or intimidation
of persons unless committed by the innkeeper's employees.

Article 102 of the Revised Penal Code deals with the subsidiary liability of
innkeepers, tavern keepers, and proprietors of establishments.

1) Under paragraph 1 of Article 102, innkeepers, tavern keepers, and proprietors

of establishments are subsidiarily liable when all of the following elements are
present:

a) The innkeeper, tavern keepers, and proprietor of establishments or his

employee committed a violation of a municipal ordinance or some general
or police regulation.
b) A crime is committed in such inn, tavern or establishment.
c) The person criminally liable is insolvent.

2) In the second paragraph of Article 102, when all of the following elements are
present, the innkeeper is subsidiarily liable:

a) The guests have notified in advance the innkeeper or the person

representing him of the deposit of their goods within the inn.
b) The guests have followed the direction of the innkeeper or his
representative with respect to the care and vigilance of their goods.
c) Such goods of the guests lodging in therein were taken by robbery or theft.

3) Even if the guests did not deposit their goods and a notice of disclaimer of
liability was posted in a hotel, it does not free the owner from subsidiary liability.
It is enough that the goods were stolen within the inn.

Subsidiary liability of other persons.

Article 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.

Article 103 deals with the subsidiary liability of employers, teachers,

persons, and corporations engaged in any industry for crimes committed by their
servants, pupils, workmen, apprentices or employees in the discharge of their
duties.

The elements:

1) The employee committed a crime in the discharge of his duties;

2) The employee is insolvent and has not satisfied the civil liability.

a) Rules to be observed. Before the employer’s subsidiary liability is

enforced, adequate evidence must exist establishing that (1) they are
indeed the employers of the convicted employees; (2) they are
engaged in some kind of industry; (3) the crime was committed by
the employees in the discharge of their duties; and (4) the execution
against the latter has not been satisfied due to insolvency.976

b) The determination of these conditions may be done in the same

criminal action in which the employees liability, criminal and civil, has
been pronounced, in a hearing set for that precise purpose, with due
notice to the employer, as part of the proceedings for the execution
of the judgment.977

i) Thus, victims of negligence or their heirs have a choice between an

action to enforce the civil liability arising from culpa criminal under Article
100 of the Revised Penal Code, and an action for quasi-delict (culpa
aquiliana) under Articles 2176 to 2194 of the Civil Code. If the action
chosen is for quasi-delict, the plaintiff may hold the employer liable for
the negligent act of its employee, subject to the employer’s defense of
exercise of the diligence of a good father of the family. On the other
hand, if the action chosen is for culpa criminal, the plaintiff can hold the
employer subsidiarily liable only upon proof of prior conviction of its
employee.978

ii) Article 1161 of the Civil Code provides that civil obligation arising from
criminal offenses shall be governed by penal laws subject to the
provision of Article 2177. Plainly, Article 2177 provides for the alternative
remedies the plaintiff may choose from in case the obligation has the
possibility of arising indirectly from the delict/crime or directly from quasi-
delict/tort. The choice is with the plaintiff who makes known his cause of
action in his initiatory pleading or complaint,979 and not with the

976 Calang et al., v. People, G.R. No. 190696, August 3, 2010.

977 Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147703, April 14, 2004.
978 L.G. Foods Corp., et al., v. Agraviador, G.R. No. 158995, September 26, 2006.
979 Ibid.
 defendant who can not ask for the dismissal of the plaintiffs cause of
action or lack of it based on the defendants perception that the plaintiff
should have opted to file a claim under Article 103 of the Revised Penal
Code.

iii) Under Article 2180 of the Civil Code, the liability of the employer is direct
or immediate. It is not conditioned upon prior recourse against the
negligent employee and a prior showing of insolvency of such employee.

iv) Distinctions of subsidiary liability under the Revised Penal Code and
Civil Code.

(1) Under Article 103 of the Revised Penal Code, liability originates from
a delict committed by the employee who is primarily liable therefor
and upon whose primary liability his employer's subsidiary liability is
to be based. Before the employer's subsidiary liability may be
proceeded against, it is imperative that there should be a criminal
action whereby the employee's criminal negligence or delict and
corresponding liability therefor are proved. If no criminal action was
instituted, the employer's liability would not be predicated under
Article 103.

(2) On the other hand, under Articles 2176 and 2180 of the Civil Code,
liability is based on culpa aquiliana which holds the employer
primarily liable for tortious acts of its employees subject, however, to
the defense that the former exercised all the diligence of a good
father of a family in the selection and supervision of his
employees.980

Extinction of civil liability.

Article 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.

Civil liability is extinguished by:

1) payment or performance;
2) loss of the thing due;
3) condonation or remission of the debt;
4) confusion or merger of the rights of creditor and debtor;

980 Franco et al., v. IAC, et al., G.R. No. 71137, October 5, 1989.
 5) Compensation;
6) Novation

a) Loss of the thing due does not extinguish civil liability because if the
offender cannot make restitution, he is obliged to make reparation.
Unless extinguished, civil liability subsists even if the offender has served
sentence consisting of deprivation of liberty or other rights or has served
the same, due to amnesty, pardon, commutation of sentence or any
other reason.

Obligation to satisfy civil liability.

Article 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.

Unless extinguished, civil liability subsists even if the offender has served
sentence consisting of deprivation of liberty or other rights or has not served the
same, due to amnesty, pardon, commutation of the sentence or any other reason.

1) Under the law as amended, even if the subsidiary imprisonment is served for
non- payment of fines, this pecuniary liability of the defendant is not
extinguished.

2) While amnesty wipes out all traces and vestiges of the crime, it does not
extinguish the civil liability of the offender.981 A pardon shall in no case exempt
the culprit from the payment of the civil indemnity imposed upon him by the
sentence.982

981 U.S. v. Madlangbayan, 2 Phil. 246.

982 Article 35, RPC.