COMMENTARY/COMMENTS

Article 40-44- Penalties in which other accessory penalties are inherent

To put my understanding of Articles 40 to 44 of the Revised Penal Code into graphical

illustration, the penalties in which other accessories are inherent and their inherent penalties are as
follows;

Penalty Absolute Special Disqualification Civil Interdiction Right to Hold Right to follow
Disqualification Public Office profession/calling

Death perpetual 30 years

Reclusion perpetua perpetual perpetual

Reclusion temporal perpetual Period of sentence

Prision Mayor temporary Perpetual (suffrage)

Prision correccional Perpetual (suffrage) if suspension suspension

penalty is more than 18
months

Arresto (Suffrage) for the period of Suspension

sentence

These accessory penalties however maybe waived if it is expressedly remitted in the pardon. But
if not expressly remitted, pardon does not waive the accessory penalty. As it can be observed, the
penalties that bear with it an inherent accessory penalty are penalties that deprives freedom of the
offender. The code does not provide for any accessory penalty for destierro. However, putting practical
application on it, by necessary implication of the destierro penalty, a person may be prevented from
exercise of some civil rights.

Let’s say that an employee of Lapu-lapu City Government, who is also a registered voter in the
City has been charged and upon decision of the court, her penalty was destierro. If she is to be
prevented from entering the city, by necessary implication, she will not be able to perform her duty as a
public employee of that local government. In case where election period happens to be within the time
frame from which she is prevented from entering the city, she would not be able to exercise her right to
suffrage.

Article 45- Confiscation and forfeiture of the proceeds or instruments of the crime.

This article talks about the necessary implication of a crime committed, with respect to the
property or tools that has been used in the commission of the crime. It is worth stressing at this point
that the confiscation of the proceeds or instrument of a crime may happen during the pendency of the
trial. Despite the maxim that “the accused is presumed innocent, until proven guilty of a crime”. As early
as the pendency of a trial where the accused is still presumed innocent, the government can already
exercise the power to confiscate the proceeds or instrument of the crime regardless whether it belongs
to an innocent third party or not. In the case of PDEA vs Brodett, G.R. No. 196390, September 28, 2011,
where a car belonging to a third party who is allegedly innocent was confiscated during the pendency of
the trial, Supreme Court held that;

“The status of the car (or any  other article confiscated in relation to the unlawful act) for
the duration of the trial in the RTC’s being in custodia legis is primarily intended to preserve it as
evidence and to ensure its availability as such. To release it before the judgment is
rendered, is to deprive the trial court and the parties access to it as evidence.
Consequently, that photographs were ordered to  be taken of the car  was not enough, for mere
photographs might not fill in fully the evidentiary need of the Prosecution.”
 Thus, as early as the pendency of the trial, proceeds and instruments may already be
confiscated regardless of whether it belong to a third party or not. When finality of judgement is
rendered by the court, and the accused was held guilty of a crime then such instrument/s or proceeds
may be forfeited by the Government.

In cases where the instrument/proceed confiscated is not subject of lawful commerce, the
second paragraph of Article 45 provides that the same shall be destroyed. Examples of
instruments/proceeds of the crime that are not subject of lawful commerce are, illegal drugs, cosmetics
that are not approved by BFAD, and many more.

In case where a judgement was rendered final and executory declaring the accused guilty of a
crime. Instruments or proceeds of the crime which are illegal such as shabu and other illegal drugs,
smuggled items and more are ordered to be destroyed by the court. In my opinion the reason behind
this rule is because, forfeited property are normally being placed in public auction by the government.
However, illegal materials such as shabu are forbidden by law and public policy. Government cannot
engage in to sale of these forbidden instruments, all the more, cannot allow general public to possess
the same. Thus, it shall be destroyed.

Article 46- Imposition of penalties upon principals in general

This provision simply clarifies that when the law prescribes a penalty to a specific crime, it
should be generally understood that the law refers to the consummation of the said crime and not to
the any other graduations by degree. In the same sense, it should also be understood that the penalty
shall be imposed to the principals of the crime and not to any other person involved in the crime that is
not a principal.

Unless the law specifically provides penalties for frustrated or attempted stage of a felony, the
principals to the frustrated and attempted felony cannot be penalized. In the same sense, unless the law
specifically provides penalties for accomplices and accessories of the crime, accomplices or accessories
cannot be prosecuted for being such. In my opinion, this provision is an application of the Latin maxim
“nullum crimen nulla poena sine lege” (there is no crime, where there is no law that punishes it).

Article 47- Imposition of death penalty, its exceptions

Article 47 of the Revised Penal Code provides rules for the imposition of death penalties. It
states that death penalty can be imposed in all case where the crime or felony is punishable by death as
expressly stated by the law. Moreso, cases where the accused is convicted of the crime punishable by
death, such penalty cannot be executed without being reviewed and without concurrence of the
majority of Supreme Court en banc. Persons that are below 18 years of age at the time of the
commission of the crime and those who are over 70 years old are exempted from death penalty.

It is noteworthy that the Revised Penal Code in was created in October 18, 1927, which is way
long before the 1935 Constitution took effect. During that period, death penalty was acceptable mode
of penalty in most governments. During the 1987 Constitution, Section 19 of Bill of Rights states that;

Section 19. (1) 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.

Therefore, our present constitution provides room for the imposition of death penalty in cases
where there is a compelling reason to impose it. Congress is given the power to legislate law providing
for the guidelines in the imposition of death penalty.

On June 24, 2006, Republic Act. 9346 has been enacted thereby repealing R.A. 7659 and
prohibiting the imposition of death penalty and provided for the imposition of reclusion perpetua in lieu
of death penalty. As a necessary consequence, Republic Act. No. 9346, also repealed Section 19, Article
III of the 1987 Constitution. In my opinion Republic Act. 9346 should be struct down for being
unconstitutional. The constitution being the supreme law of the land should have prevailed and any
statute should be in conformity with the constitution otherwise it will lose its reason for being.
However, since the said law was not struck down, it continues to remain in effect up to this day. Thus,
no crime is punishable by death penalty.
Under Section 2 Republic Act No. 9346, in lieu of death penalty, the following shall be imposed;

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

The first one in the enumeration means that “reclusion perpetua shall be imposed in lieu of
death penalty if the crime committed is a felony punishable under the Revised Penal Code”. The second
one in the enumeration on the other hand means that “life imprisonment shall be imposed in lieu of
death penalty if the crime committed is punishable under special penal laws”. Thus, I can be concluded
that Article 47 of the Revised Penal Code have no practical use in real life, and that the prohibition of
death penalty as stated in Republic Act. No. 9346 is absolute and no exemption.

Article 48- Complex crimes

Article 48 introduces complex crimes and their corresponding penalties. As described by the
same provision, complex crime exists where two or more grave or less-grave crimes are produced by
one single act. Or when, one offense is necessary for committing the other. In order for a complex crime
to be produced existence of two or more grave or less grave felonies is an essential pre-requisite. There
is no complex crime where only one felony is created, even if the perpetrator intended more.

In the eyes of the law, complex crime is treated as a single crime because even if multiple
felonies were produced, the criminal mind of the perpetrator in such case is only one. As Article 48
provided there are two types of complex crimes to wit;

1. Where two or more felonies are created by one single act, otherwise known as a
compound crime.
2. Where two or more crimes committed separately, are necessary means for
committing the other, otherwise known as complex crime proper.
In People of the Phils vs Nelmida, G.R. No. 184500, September 11, 2012, Supreme Court
explained complex crime as defined in Article 4833 of Revised Penal Code to wit;

“In a complex crime, two or more crimes are actually committed, however, in the eyes of
the law and in the conscience of the offender they constitute only one crime, thus, only one
penalty is imposed. There are two kinds of complex crime. The first is known as compound crime,
or when a single act constitutes two or more grave or less grave felonies while the other is
known as complex crime proper, or when an offense is a necessary means for committing the
other. The classic example of the first kind is when a single bullet results in the death of two or
more persons. A different rule governs where separate and distinct acts result in a number killed.
Deeply rooted is the doctrine that when various victims expire from separate shots, such acts
constitute separate and distinct crimes.”

It is also noteworthy the complex crime only exists where two or more felonies are produced
and all felonies included therein are punishable under the Revised Penal Code only and not of a special
penal law.
In the light of the fact stated above that the law treats a complex crime as a single crime, it
should consequently mean that there should only be one penalty. As stated in the second part of Article
48, the penalty of the most serious felony will be the penalty of the complex crime at its maximum
period. In the case of People of the Phile vs. Bonifacio Lopez, G.R. No. 136861, November 15, 2000,
where the accused stabbed the victim causing the death of the latter and of the fetus inside her womb,
Supreme Court upheld the decision of the trial court stating that;

“Bonifacio Lopez is guilty of Murder with Abortion and sentencing him to suffer the severest penalty
of death, and ordering him to pay the heirs of Gerarda "Gina" Ramirez Abdullah as civil indemnity the amount
of P50,000.00”
The penalty that was applied in the case was the penalty for the crime of murder in its maximum
and not of the abortion. In terms of civil liability on the other hand, the same rule does not apply.
Indemnity of the is with total regard to the intensity of all injuries suffered by each of the victims in the
case. Thus, the more felonies involved in the complex crimes, the more parties affected, the more civil
indemnity it would likely be. Article 2206 of the Revised Penal Code States;

xxx
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and
the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death.
Xxx

Plurality of crimes

There is plurality of crime where the perpetrator performs successive criminal acts where none
of the previous acts has undergone judicial proceeding/judgement. There are two kinds of plurality of
crimes, namely; formal or ideal plurality and real or material plurality. Formal or ideal plural crimes are
divided into three groups.
1. Complex crimes (which was previously discussed)
2. When the law fixes a single penalty for two or more crimes committed
3. The offender commits continued crime
The first group has been sufficiently discussed in the preceding paragraphs thus needs not
further description. The second group pertains to multiple crimes committed where the law expressly
provides only a single penalty. We must bear in mind that for a plural crime to belong to this category,
there must be an express provision of the which provides for a single penalty of such plural crime. To
give example to this group, Article 266-B of Republic Act No. 8353 provides;
xxx
“When by reason or on the occasion of the rape, homicide is committed, the penalty
shall be death.”
xxx
In the case of People of the Phils vs. Jose Broniola, G.R. No. 211027, June 29, 2015, where
accused was found guilty for the crime of rape with homicide, Supreme Court imposed a single penalty
of reclusion perpetua in lieu of death penalty. In this case, supreme court did not have to identify which
of the two felonies have more serious penalty because R.A. No. 8353 already fixed the penalty for the
two crimes.

The third group of formal or ideal plurality is when the offender commits a continued crime. As
defined, continued crime is a single crime consisting of a multiple act all arising from one criminal
resolution. Its primary difference compared to the second group is that, all the acts involved in the
continued crime are all decided and resolved by the offender prior to the commission of any of them.
Whereas, in the case of the second group it is enough that the offender decided and resolved in the
commission of one crime, but he might have committed another in response to any unforeseen
circumstances that arouse in the process.

In the case of Consuelo Mallari vs. People of the Phils, G.R. No. L-58886, December 13, 1988,
the accused was convicted of a continued crime of estafa through falsification of public document where
he performed a series of acts in several occasions motivated by one single criminal intent which is to
defraud private complainant a total amount of P3,000.00.
 Continued crime is not a complex crime because it does not meet the requisites in order to be
considered a complex crime. In complex crimes either of the two requisites must be met. First, the two
or more felonies must be a result of a single act. Second, that one of the offense/acts must be a
necessary means for committing another. In case of continued crime, it is only important that the
offender performs a series of criminal acts, regardless whether each act is necessary or not to the
commission of another.

Continuing crime is not a transitory crime. Transitory crimes are crimes that are committed
where one or more essential requisites or component of the crime was done in one place while the
other component in another place. Example of a transitory crime is the case of People of the Phils vs.
Elizalde and Placente, G.R. No. 210434, December 5, 2016 where the accused together with their co-
principals kidnapped their victim in Paraňaque City, and brought the same to Tarlac City.

Plurality of crime is not recidivism. In recidivism, the prior felony must have been brought to and
decided by the court prior to the commission of the succeeding felony. In the case of plurality of crime,
all prior felony must have not been brought and decided in the court upon the commission of the
succeeding felony. Thus, in a case where the first act made by the offender was brought to trial and
there being decided upon before the subsequent act was performed, the second crime is that of
recidivism and not a plurality of crime.

The one thing in common in formal or ideal plurality of crime is that, multiple acts/felonies has
been performed by the offender motivated by one single criminal intent. The second kind of plurality of
crime which is the real or material plurality differs in a way that each and every felony committed
successively is motivated by distinct criminal intent. For this reason, in real or material plurality, each act
performed by the offender constitutes a separate crime from the other, thus consequently constitutes
separate penalty as well.

In continued crime, a series of acts performed the offender is motivated by a single criminal
intent, while in material plurality each act is generated by a separate criminal impulse.

Article 49- If the crime committed is different from that intended

Article 49 refers to the manner of imposing of penalty in reference to the first paragraph of
Article 4 of the Revised Penal Code which it states that;

Criminal Liability – Criminal liability shall be incurred;

1. By any person committing a felony although the wrongful act done be different from
that which he intended.
Article 49 applies when the result of the commencement of the crime is different from the
criminal intent of the perpetrator. Paragraph 1 of the Article 4 covers aberration ictus (mistake in blow),
error in personae (mistake in the identity of the victim), and praeter intentionem (more serios
consequence is not the intention of the offender).
In a case where A fired a gun at B but due to lack of skill C was hit and died, Supreme Court
jurisprudence states that there being two crime actually committed in the commencement of one single
act, one is frustrated homicide where the victim was B, and another is homicide where the victim is C
,there is a complex crime. Thus, Article 48 and not Article 49 of the Revised Penal Code should apply. In
other words, case of aberration ictus or mistake in blow, Article 49 not applicable.
Also, in the case of People of the Phils vs. Francisco Cagoco, G.R. No. L-38511, October 6, 1933,
where the offender struck the victim with his fist from behind, causing the latter to fall down with his
head hitting the asphalt pavement resulting to his death, Supreme Court held that “although the
offender did not intended to kill the victim, because of the qualifying circumstance of treachery present
in the case brought the fact that the accused struck the victim from behind, the offender was held guilty
for the crime of murder. And the fact that he did not intend to kill the victim was only taken as a
mitigating circumstance. Article 49, was not applied in the case.
 Therefore, it can be concluded that Article 49 of the Revised Penal Code can only be applied in
cases where there is a mistake in the identity of the victim of the crime (error in personae). In the case of
People of the Phils. vs. Gona, G.R. No. L-32066, March 15, 1903, where the offender mistook the victim
in the dark to be the person he intended to kill, and inflicted upon him a mortal wound causing the
death of the victim. Supreme Court held that the offender is to suffer the sentence of homicide which is
reclusion temporal and not of murder which is reclusion perpetua. Thus Article 49 has been applied.
The punishment imposed in complex crimes (Article 48) are different of those crime where
Article 49 applies. The major difference between the two is that; In complex crimes the most serious
penalty is being applied at its maximum period, whereas in crimes under Article 49, the lesser penalty is
the one being imposed at its maximum period. (pls take a glance in the sample cases provided above for
complex crimes and crimes under article 49)

Articles 50-57- Penalities to be imposed in principals of attempted and frustrated crimes, as well as
accomplices and accessories of a consummated, frustrated, and attempted crimes

These provisions of Revised Penal Code provide for the calculation of penalties in cases of
frustrated, attempted as well as of those accessories and accomplices.

In consummated felonies:
Principals- penalty is prescribed by law
Accomplices- one-degree lower
Accessories- two degrees lower

In frustrated felonies:
Principals- one degree lower than consummated
Accomplices- one degree lower than of principals
Accessories- two degrees lower than of principals

In attempted felonies:
Principals- two degrees lower than consummated
Accomplices- one degree lower than of principals
Accessories- two degrees lower than of principals

Lowering a penalty by one or two degrees does not necessarily mean that if penalty reclusion
temporal, then it becomes prision mayor. A degree is one unit of the penalty/penalties enumerated in
the graduated scales provided for in Article 71 of the Revised Penal Code. Thus, basing on the logic on
how degree is being calculated in Article 71, a penalty of reclusion temporal in its medium period can be
considered to have been lowered by one degree if reduced to its minimum period. Likewise, a penalty of
reclusion temporal in its maximum period, if reduced to prision mayor in its maximum period is still
considered one degree lowered.

Thus, if we are to based the penalties in the crime of homicide where the prescribed penalty is
reclusion temporal, it would appear that;

Consummated Homicide:
Principals- reclusion temporal
Accomplices- one-degree lower
Accessories- two degrees lower

Frustrated Homicide:
Principals- one degree lower than consummated
Accomplices- one degree lower than of principals
Accessories- two degrees lower than of principals

Attempted Homicide:
Principals- two degrees lower than consummated
Accomplices- one degree lower than of principals
 Accessories- two degrees lower than of principals

The term period simply refers to the three equal portions of a divisible penalty. The duration of
each penalties provided for in Article 27 or the Revised Penal Code. (except reclusion perpetua and bond
to keep the peace) are divided into three periods, namely; maximum, medium, and minimum periods.
Time duration for each period in every penalty is provided for in Article 76 of the Revised Penal Code.

Article 58- Additional penalties for public officers who abuse their public functions under paragraph 3
of Article 19

Public officers who used their functions/authority to harbor, conceal, or assist in the escape of
the principal of the crime shall suffer either of the two additional penalties;
- Absolute perpetual disqualification (If principal is guilty of a grave felony)
- Absolute temporary disqualification (if principal is guilty of a less grave felony)
It is noteworthy for clarification that this provision applies only to those who fall under
paragraph 3 of Article 19 of the Revised Penal Code, or those public officials who are accessories of a
grave or less grave felonies.

Article 59- Penalty for Impossible Crimes

Revised Penal Code in this article fixes the penalty for impossible crimes to be arresto mayor or
a fine of P200 to P500 pesos (P40,000.00 - P1,200,00 under Republic Act No. 10951). However, this
provision is only limited to those cases where the act performed would have been a grave or less grave
felonies if not of because of the legal impossibility of the crime. The reason behind is because of it would
be unjust in the part of the offender if he/she would be penalized with arresto mayor for committing an
impossible crime of a light felony which is only punishable by arresto menor.

Article 60- Exceptions to the rules established in Articles 50 – 57

This provision simply expresses that if there is another provision that expressly provides for
attempted and frustrated felonies, or upon accomplices and accessories of the crime, rules provided in
Articles 50 to 57 shall not apply. The latter provisions should only apply where the law does not fix the
penalty of a crime.

In some peculiar instance, the law may expressly provide a specific penalty for accomplices and
accessories of the crime, or for frustrated and attempted stage of the same. Applying the rule of the
statutory construction “where a general law and a special law have conflicting provisions, the special law
which is intended for that specific situation shall prevail”. In this case, Article 50 – 57 can be regarded as
a general provision since it does not specify to which crime is should apply. Thus, if there is a different
provision providing penalties for a specific crime, that different provision should prevail with respect to
the crime which it is intended.

Article 61 62- rules for graduating penalties and application of indivisible penalties

Under this article, there were five rules in graduating penalties.

First rule- when the penalty describe is a single indivisible penalty, the next penalty lower in
degree shall be the lower degree of that penalty. Thus, if reclusion perpetua is to be reduced by one
degree, then it shall become reclusion temporal.

Second rule- if penalty is composed of two indivisible penalties or of two or more divisible
penalties to their full extent, then the next penalty lower in degree shall be the lower degree of that
penalty. Thus, if penalty imposed is reclusion perpetua to death and it is to be reduced by one degree,
then it shall be reclusion temporal. Similarly, if the penalty imposed is from prision mayor in its full
extent to reclusion temporal in its full extent, and it is to be reduced by one degree, then it shall become
prision correccional.

Third rule- when the penalty is composed of two indivisible penalties and maximum period of
divisible penalty, then the minimum and medium period of that divisible penalty including the maximum
period of the next penalty lower in degree shall be the next lower in degree. Thus, if the penalty
imposed is from reclusion temporal to death, and it is to be lowered by one degree, then it shall become
from prision mayor in its maximum to reclusion temporal in its medium period.

Fourth rule- if the penalty is composed of several periods of divisible penalties. The next three
period lower than its minimum shall be par of its next lower degree. Thus, if the penalty imposed for
example is from prision mayor in its medium period to reclusion temporal in its minimum period, and it
is lowered by one degree, then it shall be from prision correccional in its medium period to prision
mayor in its minimum period.

Fifth rule- if the penalty imposed consists of two periods, then the next two lower periods shall
be its next lower degree. Thus, if penalty imposed is prision correccional in its minimum to medium
period, and is reduced by one degree, then it shall become arresto mayor in its medium to maximum
period.

More details into calculation of penalities will be covered by Indeterminate Sentence Law
(ISLAW). Article 76 of the Revised Penal Code on the other hand provides for the time duration of each
period of penalty.

Article 62 of the Revised Penal Code on the other hand provides for the rules in the application
of indivisible penalties. This provision however, only applies to cases where penalty imposed are
indivisible and no divisible penalties. The rules are quite simple. If there is one indivisible penalty, then
mitigation or aggravating circumstances will not affect the duration of penalty by obvious reasons.

If the penalty imposed is composed of two indivisible penalty the following shall apply;

No mitigating and aggravating circumstance- lesser penalty shall apply

There is mitigating and no aggravating circumstance- lesser penalty shall apply
No mitigating and there is aggravating circumstance- greater penalty shall apply
Both circumstances are present- the rule of offsetting/ deduction shall apply

Article 64- Rules in applying period of penalties in the presence of mitigating and/or aggravating
circumstances

By default, or in the absence of any mitigating or aggravating circumstances, penalties of the

crime should by in its medium period. If there is one or more aggravating circumstance with no
mitigating circumstance, then the penalty should be in its maximum period. If there is one mitigating,
then penalty should be in its minimum period. If there is more than one mitigating, then penalty should
be the maximum period of the next penalty lower in degree. If multiple aggravating and mitigating
circumstance are present, then the rule of offsetting should apply.