Justifying and Exempting

Circumstances

Justifying circumstances are those wherein the acts of the

actor are in accordance with law and, hence, he incurs no criminal
and civil liability. The justifying circumstances by subject are as
follows:
1. Self-defense
Anyone who acts in defense of his person or rights. (Art. 11, Par.
1) The scope included self-defense not only of life, but also of
rights like those of chastity, property and honor. It has also been
applied to the crime of libel. (People v Chua Chiong, 51 OG 1932)

Its elements are:

a. Unlawful aggression
Aggression is considered unlawful when it is unprovoked or
unjustified. There must be real danger to life or personal safety.
An imminent danger of aggression, and not merely imaginary, is
sufficient. A slap on the face is actual unlawful aggression. (Dec.,
Sup. Ct. of Spain, March 8, 1887)

There is no unlawful aggression exists in a case of an agreed fight.

To constitute an agreement to fight, the challenge must be
accepted. (People v. Del Pilar, 44 OG 596) Unlawful aggression
may no longer exist if the aggressor ran away after the attack.
(People v. Alconga, 78 Phil. 366) If the aggression has ceased,
the one defending himself has no right to inflict any further injury
to his assailant. (Q11, 1993 Bar)

Mere oral threat to kill, unaccompanied by any unequivocal act

clearly indicative of the intent to carry out the threat, does not
amount to unlawful aggression. (People v. Binondo, 97227, Oct.
20, 1992) The mere cocking of an M-14 rifle by the victim, without
aiming the firearm at any particular person is not sufficient to
conclude that the life of the person (Vice-Governor) whom the
accused was allegedly protecting, was under actual threat or
attack from the victim. There is no unlawful aggression. (Almeda
v. CA, March 13, 1997)

b. Reasonable necessity of the means employed to prevent

or repel it.
The rule stand ground when in the right applies when a person
is unlawfully assaulted and if the aggressor is armed with a
weapon. (US v. Domen, 37 Phils. 57) Whether the means
employed is reasonable or not it will depend upon the kind of
weapon of the aggressor, his physical condition, character, size
and other circumstances as well as those of the person attacked
and the time and place of the attack. (People v. Padua, 40 OG
998) The instinct of self-preservation more often than not is the
moving power in mans action in defending himself. (People v.
Artuz, 71 SCRA 116)

c. Lack of sufficient provocation on the part of the person

defending himself.
A person may be justified in causing injury to another in defense
of his property (fencing off the house of the accused) even if there
was no attack against his person. To hold otherwise would render
nugatory the provisions of circumstance No. 1 which recognizes
the right of an individual to defend his rights, one of which is to
own and enjoy his property. (People v. Narvaez, 121 SCRA 389)
Even assuming that the victim was scaling the wall of the factory
compound to commit the crime inside the same, shooting him is
never justifiable, even admitting that such act is considered
unlawful aggression on the property rights. In the instant case,
the second element is absent considering that the victim was
unarmed. There is therefore an incomplete self-defense. (Q6,
1996 Bar; Q4, 1990 Bar)

To be entitled to a complete self-defense of chastity, there must

be an attempt to rape. (People v. Jaurigue, 76 Phil. 174)

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. (People v. Chua Hong, 51 OG
1932)

2. Defense of Relative
Anyone who acts in defense of the person or rights of his spouses,
ascendants, descendants, or legitimate or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and
those by consanguinity within the fourth civil degree, and in case
the provocation was given by the person attacked, that the one
making the defense had no part therein. (Art. 11, Par. 2)

Even if two persons agreed to fight, and at the moment when one
was about to stab the other, the brother of the latter arrived and
shot him, defense of relative is present as long as there is an
honest belief that the relative being defended was a victim of an
unlawful aggression, and the relative defending had no knowledge
of the agreement to fight. (US v. Esmedia 17 Phil. 280)

3. Defense of Stranger.
Anyone who acts in defense of the person or rights of a stranger
and that the person defending be not induced by revenge,
resentment, or other evil motive. (Art. 11, Par. 3)

A person who struggled with the husband who was attacking his
wife with a bolo for the possession of the bolo and in the course
of the struggle, wounded the husband, was held to have acted in
defense of a stranger. (People v. Valdez, 58 Phil. 31)

4. State of Necessity
Any person who, in order to avoid an evil or injury, does an act
which causes damage to another. (Art. 11, Par. 4)

This is the only justifying circumstances wherein civil liability may

arise but this is borne by the person benefited by his act. The
state of necessity exists when there is a clash between two
unequal rights, the lesser right giving way to the greater right.

An accused was acquitted of the crime of slander by deed, when

she eloped with another man after all wedding preparations with
the offended party were made, since there was a necessity on the
part of the accused to avoid a loveless marriage with the offended
party. (People v. Hernandez, 55 OG 8465)

In a case when in saving the life of the mother, the doctor

sacrificed the life of the unborn child, is the attending physician
criminally liable? No, because his acts are justified under this
Article (State of necessity). However, in mercy killing where the
doctor deliberately turned off the life support system costing the
life of the patient, the doctor is criminally liable. Euthanasia is not
a justifying circumstance in our jurisdiction. (Q3, 1990 Bar)

5. Fulfillment of duty
Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office. (Art. 11, Par. 5) The injury caused or
the offense committed is the necessary consequence of the due
performance of such right or office.

The killing by a policeman of an escaping detention prisoner is

presumed to be committed in the performance of his official
duties. But shooting a thief who refused to stop inspite of the
order of the accused will make him liable as he exceeded
fulfillment of his duty. (People v. Bentres, 49 OG 4919) Also, under
the doctrine of self-help, the law justifies the act of the owner
as lawful possessor of a thing in using such force as is reasonably
necessary for the protection of his proprietary or possessory right.
(Art. 429, Civil Code)
With respect to the wounding of the stranger during the
commission of crime of death under exceptional circumstances
(Art. 247), the defense of lawful exercise of a right is a justifying
circumstance. (Q14, 1991 Bar)

6. Obedience to superior order

Any person who acts in obedience to an order issued by a superior
for some lawful purpose. (Art. 11, Par. 6)

It is required that the order in itself must be lawful; that it is for a

lawful purpose; and that the person carrying out the order must
also act within the law. But even if the order is illegal if it is
patently legal and the subordinate is not aware of its illegality, the
subordinate is not liable. (Nassif v. People, 78 Phil. 67) This is due
to a mistake of fact committed in good faith. Even if the order is
illegal, the subordinate may still invoke the exempting
circumstances of compulsion of irresistible force or acting under
the impulse of an uncontrollable fear of an equal or greater injury.
Exempting circumstances are those wherein there is an
absence in the agent of the crime of all the condition that would
make an act voluntary and, hence, although there is no criminal
liability, there is civil liability. In exempting, the crime is committed
but there is absent in the person of the offender any element of
voluntariness, and so he is not criminally liable but is civilly liable
except in the exempting circumstances of accident and lawful or
insuperable cause.
1. IMBECILITY AND THE INSANITY.
An imbecile is one who may be advanced in years, but has a
mental development comparable only to children between 2 and
7 years of age. An insane is one who suffers from a mental
disorder in such degree as to deprive him of reason. The insane
person may be held criminally liable if he acted during
a lucidinterval.
When the imbecile or an insane person has committed an act
which the law defines as a felony, 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. (Art. 12,
Par. 1)

The test of imbecility or insanity is complete deprivation of

intelligence in the commission of the act, that is, that the accused
acted without the least discernment. (People v. Aldemeta, 55033,
Nov. 13, 1986) The evidence regarding insanity must refer to the
very moment of its execution and must be proven by clear and
positive evidence. (People v. Basco, 44 Phil. 204)

Even if the offender is not an imbecile nor insane, if he is

completely deprived of the consciousness of his acts when he
commits the crime, he is entitled to exemption for a cause
analogous to imbecility or insanity. So, one committing a crime
while dreaming during his sleep (People v. Taneo, 58 Phil. 255) or
in a state of somnambulism or sleep walking (People v. Gimena,
55 Phil. 604) is not criminally liable as the acts are embraced
within the plea of insanity.

2. MINORITY
A person under nine (9) years of age. (Art. 12, Par. 2) In this case,
the minor is completely devoid of discernment and are
irresponsible.

A persons over nine (9) years of age but under fifteen (15), unless
he has acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Art. 80
[Repealed by PD 603]. (Art. 12, Par. 3)

Discernment is the mental capacity to determine not merely the

difference between right or wrong, but is also involves the
capacity to comprehend the nature of the act and its
consequences.
The age of the minor is computed up to the time of the
commission of the crime charged, not up to the date of
trial.(People v. Navarro, 51 OG 409) If the minor is exempt from
criminal liability, he shall be committed to the care of his or her
father or mother or nearest relative or family friend in the
discretion of the court and subject to its supervision. (Art. 189, PD
603, as amended)

Minority is always a privileged mitigating circumstance under the

RPC and lowers the prescribe penalty by one or two degrees in
accordance with Article 68 of the Code. But like any modifying
circumstance, it is not availing to those accused of crimes mala
prohibita. (People v. Mangusan, 189 SCRA 624) However, this
privileged mitigating circumstance may be appreciated in
violations of the Dangerous Drugs Act (RA 6425), the penalty to
be imposed should not be lower than prision correccional. (People
v. Simon, 93128, July 29, 1994)

3. ACCIDENT
Any person who, while performing a lawful act with due care,
causes injury by mere accident without fault or intention
of causing it. (Art. 12, Par. 4)
Its requisites are:

a. The offender must be performing a lawful act.

b. With due care.

c. Causes injury to another by mere accident.

d. Without fault or intent of causing it.

An accident is any happening beyond the control of a person the

consequences of which are not foreseeable. If foreseeable, there
is fault or culpa. An accidental shooting due to legitimate self-
defense is exempting. (People v. Trinidad, 49 OG 4889) In
performing a lawful act with due care by snatching away the
balisong in defense of stranger, the balisong flew with force
that it hit another person who was seriously injured, Tommy is
exempted from criminal liability because of mere accident. (Q2,
1992 Bar)

Under this exempting circumstance, there is no civil liability.

4. COMPULSION OF IRRESISTIBLE FORCE.

Any person who acts under the compulsion of irresistible force.
(Art. 12, Par. 5)

The force referred to here must be a physical force, irresistible

and compelling and must come from a third person. It cannot
spring primarily from the offender himself. (People v. Fernando,
33 SCRA 149) Thus, if a person was struck with the butts of the
guns of those who killed another to compel him to bury their
victim, he is not liable as an accessory because he acted under
the compulsion of an irresistible force. (US v. Caballeros, 4 Phil.
850)

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 one of such a character as to leave no opportunity to the
accused for escape or self-defense in equal combat. (People v.
Nalipanat, 145 SCRA 483)

5. IMPULSE OF UNCONTROLLABLE FEAR

Any person who acts under the impulse of an uncontrollable fear
of an equal or greater injury. (Art. 12, Par. 6)

Uncontrollable fear is an impulse coming from within the person

of the actor himself. The actor acts not against his will but because
he is engendered by the fear. The threat producing the
insuperable fear must be grave, actual, serious and such kind that
the majority of men would have succumbed to such moral
compulsion. (Feria and Gregorio, Revised Penal Code, Vol. 1, 224)
Thus, if one is compelled under fear of death to join the rebels,
he is not liable for rebellion because he acted under the impulse
of uncontrollable fear of an equal or greater injury. (US v.
Exaltacion, 3 Phil. 339)

6. INSUPERABLE OR LAWFUL CAUSE.

Any person who fails to perform an act required by law, when
prevented by some lawful insuperable cause. (Art. 12, Par. 7)

This is a felony by omission. The failure of a policeman to deliver

the prisoner lawfully arrested to the judicial authorities within the
prescribed period because it was not possible to do so with
practicable dispatch as the prisoner was arrested in a distant place
would constitute a non-performance of duty to an insuperable
cause. (US v. Vicentillo, 19 Phil. 118)

7. ABSOLUTORY CAUSES.
These are instances which actually constitute a crime but by
reason of public policy and sentiment, it is considered to be
without liability and no penalty is imposed, like:

a. Spontaneous desistance at the attempted stage of a felony.

(Art. 6, Par. 3)
b. Accessories exempt from criminal liability. (Art. 20)
c. Death or physical injuries inflicted under exceptional
circumstances.`(Art. 247)
d. Enter a dwelling for the purpose of preventing serious harm or
service to humanity. (Art. 280)
e. Exempt from theft, swindling or malicious mischief by
relationships. (Art. 332)
f. Marriage of the offended party in seduction, abduction, acts of
lasciviousness and rape. (Art. 244)
g. Instigation takes place when a peace officer induces a person
to commit a crime. Without the inducement, the crime would not
be committed. Hence, it is exempting by reason of public policy.
The person instigating must not be a private person as he will be
liable as a principal by inducement. (Art. 17, Par. 2) In this case,
the criminal intent (mens rea) originates in the mind of the
instigator and the accused is lured into the commission of the
offense charged in order to prosecute him.
However, entrapment is the employment of such ways and
means devised by a peace officer for the purpose of trapping or
capturing a lawbreaker. With or without the entrapment, the
crime has been committed already. Hence, entrapment is neither
exempting or mitigating. The idea to commit the crime originated
from the accused, thus the actor is criminally liable.
The difference between entrapment and instigation lies in the
origin of the criminal intent. In entrapment mens rea originates
from the mind of the criminal. The idea and resolve to commit the
crime comes from him. In instigation, the law officer conceives
the commission of the crime and suggests it to the accused, who
adopts the idea and carries it into execution. (Araneta v. CA,
46638, July 9, 1986)

A buy-bust operation is a form of entrapment employed by

peace officer to trap and catch a malefactor in flagrante delicto,
commonly involving dangerous drugs. (People v. Del Pilar, 188
SCRA 37) Where a person had a ready supply of dangerous drugs
for sale to anyone willing to pay the price asked for, although he
might not have the drug with him at the time of the initial
transaction, the situation supports an entrapment, not an
instigation. The fact that the accused returned with the drugs
shortly after the transaction was entered into, shows that he had
ready contacts with the supplier from whom he could readily get
the drug. If the accused were merely instigated to look for the
drug, it would have taken him a considerable length of time to
look for a source. (People v. Estevan, 196 SCRA 34) (Q8, 1992
Bar)
An example of instigation is given in Q9, 1995 Bar as follows:
Suspecting that Juan was a drug pusher, SPO2 Mercado gave Juan
a P 100-bill and asked him to buy some marijuana cigarettes.
Desirous of pleasing SPO2 Mercado, Juan went inside the
shopping mall while the officer waited at the corner of the mall.
After 15 minutes, Juan returned with ten sticks of marijuana
cigarettes which gave to SPO2 Mercado who thereupon placed
Juan under arrest and charged him with violation of the
Dangerous Drugs Law by selling marijuana. Is Juan guilty of any
offense? Juan cannot be charged of any offense punishable under
the Dangerous Drugs Act. Although Juan is a suspected drug
pusher, he cannot be charged on the basis of a mere suspicion.
By providing the money with which to buy marijuana cigarettes,
SPO2 Mercado practically induced and prodded Juan to commit
the offense of illegal possession of marijuana. Set against the
facts, instigation is a valid defense available to Juan.
Mitigating Circumstances
The mitigating circumstances are based on the degree of
perversity or on the diminution of any of the elements of dolo,
for instance, minority. Two different mitigating circumstances,
such as passion or obfuscation, cannot arise from the same
fact. However, where there are other facts, although closely
connected with the fact which one circumstance is premised, the
other circumstances may be taken into consideration based on
another fact.

These circumstances may be classified into:

1. Ordinary (generic) mitigating circumstance.
The attendance of a generic mitigating circumstance,
unless offset by an aggravating circumstance, will lower the
imposable penalty only to its minimum. It should be borne
in mind that the presence of 2 or more generic mitigating
circumstances, provided there is no aggravating circumstance, will
lower the imposable penalty by one degree, pursuant to Rule 5
of Art. 64 of the RPC.

2. Privileged mitigating circumstance.

The presence of a privileged mitigating circumstance will lower
the imposable penalty by one or 2 degrees. The privileged
mitigating circumstance cannot be offset by the presence of
an aggravating circumstance.

Since a mitigating circumstance is a matter of defense, the

accused must prove it with concrete evidence to the satisfaction
of the Court. (People v. Malunay, 66 OG 2095)

Specific circumstances:
1. PRIVILEGED MITIGATING CIRCUMSTANCES OF
INCOMPLETE JUSTIFYING OR EXEMPTING
CIRCUMSTANCES.
Those mentioned in the preceding chapter, when all the
requisites necessary to justify the act or to exempt from criminal
liability in the respective cases are not attendant. (Art. 13, Par. 1)

In self-defense, defense of relative or defense of stranger, it is

essential that unlawful aggression be present; otherwise, there
can be no such defense, whether complete or incomplete. (People
v. Rosal, 5355, Aug. 31, 1953)

2. OFFENDER IS UNDER 18 YEARS OF AGE OR OVER 70

YEARS.
That the offender is under 18 years of age or over 70 years. In
the case of the minor, he shall be proceeded against in accordance
with the provisions of Art. 80 (now amended by PD 603). (Art.
13, Par. 2)

This paragraph cover two circumstances, minority and senility (old

age). Under Art. 292 of the PD 603, minority is always a privileged
mitigating circumstance. As a general rule, senility is a generic or
ordinary mitigating circumstance. However, the circumstance
may be considered as a privileged mitigating circumstances as
when the offender is over 70 years of age, he cannot be
sentenced to death (Art. 47) and if at the time of the
execution of the death penalty the convict is over 70 years of age,
the death penalty cannot be executed. Automatically the penalty
is commuted to reclusion perpetua, with the accessory penalties
of death (Art. 83)

3. LACK OF INTENTION TO COMMIT SO GRAVE A WRONG.

That the offender had no intention to commit so grave a wrong
as that committed. (Art. 13, Par.3) This is the effect of praeter
intentionem.
This mitigating circumstance applies only to offenses resulting
in physical or material harm and not to slander. Neither does it
apply to cases of imprudence, nor in cases of unintentional
abortion.

4. SUFFICIENT PROVOCATION.
That sufficient provocation or threat on the part of the offended
party immediately preceded the act. (Art. 13, Par. 4)

To entitle the offender to the benefit of this mitigating

circumstance, it requires the following requisites:

a. That the provocation or threat be sufficient, that is, adequate

enough to arouse the offender to commit the act.
b. That such provocation or threat came from or was given by the
offended party.
c. That it must have immediately preceded the act complained of.
A lawful act cannot constitute a provocation. Thus, the threat of
filing a law suit against another is not provocation. Example are
ill-treating and abusing the offender by kicking and cursing him
(US v. Firmo, 37 Phil. 133) or the infidelity of the wife which made
the husband kill her (People v. Marquez, 53 Phil. 260) is sufficient
provocation. Immediate means that there is no interval of time
between the provocation and the commission of the crime.
(People v. Pagal,79 SCRA 570) However, in one case, where the
accused went home and returned fully armed and killed the
deceased, provocation was considered mitigating. (People v. De
Guia, 3731, April 20, 1951)

5. IMMEDIATE VINDICATION OF A GRAVE OFFENSE.

That the act was committed in the immediate vindication of a
grave offense to the one committing the felony, his spouse,
ascendants, descendants, legitimate, natural, or adopted
brothers or sisters, or relatives by affinity within the same
degrees. (Art. 13, Par.5)

The relationship between the offender and the victim of the grave
offense sought to be indicted must be legitimate. The grave
offense mentioned in this mitigating circumstance need not be a
felony or an act punished by law. The act of the victim in eloping
with the daughter of the accused is a grave offense to her family.
(People v. Diokno, supra) Also, the remarks of the victim in the
presence of the guests during a celebration that the accused lived
at the expense of his wife, under the circumstances, were highly
offensive to the accused or to any other person in his place.
(People v. Rosal, 66 Phil. 323) In determining the gravity of the
offense, the age of the accused, his social standing, the time and
place when the offense was committed and other attendant
circumstances are to be considered.

6. PASSION OR OBFUSCATION
That of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation. (Art 13, Par. 6)

The causes must spring from lawful or moral sentiments, not

induced by spirit of lawlessness, revenge or immoral
passions. However, killing the common-law-wife suprised in
flagranti in carnal knowledge with a friend is passion that is
mitigating because the offender acted under an impulse cause by
the sudden discovery that the woman proved untrue to him. (US
v. De la Cruz, 22 Phil. 429)
Further, the act must have been committed immediately or shortly
after the act causing such passion or obfuscation and the
commission of the felony. It is not mitigating if the crime is
planned and clearly mediated before execution. (People v. Daos,
60 Phil. 143)

Where the victim hurled invectives and challenged a security

guard to a fight because the latter refused to allow him to enter
the premises, the unsavory remarks and vexatious conduct of the
victim was sufficient to ignite the wrath of the guard who shot him
twice for the repeated taunts and verbal remarks he
made. Obfuscation is mitigating. (People v. Valles, Jan. 28, 1997)

There is passion or obfuscation where the accused boxed the

victim after he saw the latter boxed his four-year-old-son. The
accused did so, momentarily blinded by anger and he lost sight of
the fact that his sons adversary was but a nine-year-old boy.
(People v. Castro, 117 SCRA 1014)

7. VOLUNTARY SURRENDER AND VOLUNTARY PLEA OF

GUILTY.
That the offender had voluntarily surrendered himself to a person
in authority or his agents, or that he had voluntarily confessed
his guilt before the court prior to the presentation of the evidence
for the prosecution. (Art. 13, Par. 7)

There are 2 mitigating circumstances, distinct and apart from each

other, that may be considered in favor of the defendant. The
requisites of voluntary surrender are:

a. The offender has not been actually arrested.

It may be present if made after the issuance of a warrant of arrest
but before actual arrest is made. (People v. Yecla, 68 Phil.
740) The offender must surrender himself and not the weapon
which he used in committing the crime, and the surrender must
be for the crime of which he is charged. (People v. Semanada,
103 Phil. 790) If the accused gave himself up to the police when
he was served the warrant for his arrest, such surrender is not
mitigating. (People v. Agag, 130 SCRA 274)

b. The surrender must be made to a person in authority or his

agent.
c. It must be voluntarily made.
For the mitigating circumstance of voluntary surrender to be
appreciated, the same must be spontaneousin such a manner that
it shows the interests of the accused to surrender
unconditionally to the authorities, either because he
acknowledges his guilt or because he wishes to save them the
trouble and expenses necessarily incurred in his search and
capture. (People v. Sakam, 61 Phil. 27) (Q3, !996 Bar; Q5 1992)
Two years is too long a time to consider the surrender as
spontaneous. (People v. Ablao, 183 SCRA 658) (Q5, 1997 Bar)
Where the offender went to the municipal building because he
was a suspect in the killing but not to own responsibility for the
killing, such fact is not tantamount to voluntary surrender as a
mitigating circumstance. Although he admitted his participation
in the killing, he tried to avoid responsibility by claiming self-
defense which however he was not able to prove. (People v.
Mindac, 83030, Dec. 14, 1992)

Voluntary surrender is mitigating where the offender,

accompanied by his uncle, went to the police station and
spontaneously and unconditionally place himself at the disposal of
the authorities although he remained silent (since it is his
constitutional right to remain silent). (People v. Gracia, Nov. 14,
1996)

A plea of guilty is not only an admission of all the

material facts alleged in the complaint or information but
also that he is guilty of the offense defined by the facts. Its
requisites are:

a. The plea to be spontaneous.

b. Made in open court.
The plea of guilty must be made at the earliest opportunity, that
is , before the competent court that is to try the person making
the confession. (People v. De la Pena, 66 Phil. 451) An extra-
judicial confession is not mitigating. (People v. Undong, 66 SCRA
386)

c. Made before trial begins, that is, prior to the presentation of the
evidence by the prosecution. (Q5, 1997 Bar)
Mere offer to plead guilty to homicide under a charge of murder
is not sufficient. However, it is believed that if the offer to plead
guilty to homicide is predicated on the allegation that the killing
was not attended by any qualifying circumstance and the trial
court so found, thus convicting the accused only of homicide,
there is no valid reason why the accused should not be given the
benefit of the circumstance. (People v. Limosnero, 147 SCRA 232)

In capital offense, voluntary plea of guilty does not mean

admission of the material allegations in the information, including
the circumstances of the crime. The precise purpose of the
automatic review in capital offenses is to open the entire record
for scrutiny so that a human life will not be lost through a
miscarriage of justice by a misappreciation of the evidence.
(People v. Abre, 112 SCRA 83)

8. THE OFFENDER IS DEAF AND DUMB OR BLIND.

That the offender is deaf and dumb, blind, or otherwise
suffering some physical defect which thus restricts his means of
action, defense, or communication with his fellow beings. (Art. 13,
Par. 8)

It is essential that his physical defect have some relation to the

crime committed by him. Thus, if a person is charged with acts
of lasciviousness, the fact that he has only one arm will not entitle
him to the benefit of the circumstances. (Q18, 1993 Bar)

9. Illness that Diminishes the Exercise of Will Power.

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. (Art. 13, Par. 9)

The offender actually knows that his act is unlawful, that it can
cause harm to another, but because of the illness he is suffering,
he cannot control himself. Thus, a person who has kleptomania
the urge to take anything may commit theft, knowing it to be
a crime, but cannot control himself. Other examples are (a) a
mother who killed her child after delivery as she was suffering
under the influence of a puerperal fever (Dec., Sup. Ct. of Spain,
Sept. 28, 1897); (b) acute neurosis that made the offender ill-
tempered and easily angered (People v. Carpenter, 4168, April 12,
1944) and (c) feeblemindedness. (People v. Formigenes, 87 Phil.
658)
10. ANALOGOUS MITIGATING CIRCUMSTANCES.
And, finally, any other circumstance of a similar nature and
analogous to those above mentioned. (Art. 13, Par. 10)

Examples:

a. Over 60 years old and with failing eyesight analogous to one

over 70 years. (People v. Reantillo, 301, May 27, 1938)

b. Jealousy similar to passion or obfuscation. (People v.

Ubengen, 36 OG 763)

c. Voluntary restitution of property similar to voluntary

surrender. (People v. Amante, 65 OG 5618)

d. Extreme poverty similar to incomplete justifying circumstance

of state of necessity.(People v. Macbul, 74 Phil. 436)
Aggravating
Circumstances
The aggravating circumstances are based on the higher degree of
perversity of the offender manifested at the time of the
commission of the felony; the place, the means, ways or methods
employed; his relationship with the offended party; or other
personal circumstance and others.

Kinds of aggravating circumstances:

1. Generic that which generally applies to all crimes like
recidivism.
2. Specific that which applies to a particular felony like cruelty
in crimes against persons.
3. Qualifying that which changes the nature of the felony, as
treachery in murder.
4. Inherent that which is part of the felony committed, as
unlawful entry in robbery with force upon things.

Distinction:
Generic Qualifying

1. Can be offset by an 1. Cannot be offset by an

ordinary mitigating. ordinary mitigating.

2. Cannot be proved as such

unless alleged in the
2. Maybe proved even though
information. However, it
not alleged.
may be proved as a generic
aggravating circumstance.

3. Not offset have the effect

3. Changes not only the
of increasing the penalty to
nature but also the name of
the maximum but not beyond
the offense.
that provided by law.

The circumstances specifying an offense or aggravating the

penalty thereof must be proved as conclusively as the act itself,
mere suppositions or presumptions being insufficient to establish
their presence according to law. The Supreme Court said that
even if the generic aggravating circumstance is not alleged in the
information, the same may be proved even over the objection of
the adverse party. (Q10, 1991 Bar)

Specific circumstances:
1. TAKING ADVANTAGE OF OFFICIAL POSITION.
That advantage be taken by the offender of his public position.
(Art. 14, Par. 1)
It is not only necessary that the person committing the
crime be a public officer; he must also use the influence,
prestige or ascendancy which such office gives him as a means
by which he realizes his purpose. (People v. Yturriaga, 86 Phil.
534)

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, the
circumstances is not considered. This means that this
aggravating circumstance is inherent in the crime, since, it cannot
be committed except by public officer. (People v. Teves, 44 Phil
275)

2. THAT THE CRIME BE COMMITTED IN CONTEMPT OF OR

WITH INSULT TO THE PUBLIC AUTHORITIES. (Art. 14, Par.
2)

Public authorities is a person in authority, not an agent of a

person in authority, and that the person in authority should be
engaged in the exercise of his public functions, and that he should
not be the object of the crime. It is also essential that the
offender knows of the identity of the public authority.
The Chief of Police is a person in authority for he is vested with
authority to maintain peace and order and is duty bound to
prosecute and to apprehend violators of the laws. (People v. Rodil,
109 SCRA 308) A Barangay Chairman is a person in
authority. Teachers, professors, supervisors of public and duly
recognized private schools, colleges and universities, as well as
lawyers are persons in authority only for the purposes of Direct
Assault (Art. 148) and Simple Resistance and Disobedience (Art.
151), but not for the purpose of the aggravating circumstance in
this paragraph. (People v. Tac-an, 182 SCRA 601)

If the crime is committed against the public authority, the crime

committed is direct assault and this aggravating circumstance will
be considered absorbed. (US v. Rodriguez, 29 Phil. 150)

3. ACT BE COMMITTED WITH INSULT TO OR IN

DISREGARD OF THE RESPECT DUE THE OFFENDED
PARTY ON ACCOUNT OF HIS RANK, AGE, OR SEX, OR
THAT IT BE COMMITTED IN THE DWELLING OF THE
OFFENDED PARTY, IF THE LATTER HAS NOT GIVEN
PROVOCATION. (Art. 14, Par. 3)
There are four aggravating circumstances in this paragraph,
which, if present in the commission of the crime are considered
as one aggravating circumstance only.

There must, however, be proof showing that the accused

deliberately intended to offend or insult the age or sex of the
offended party. (People v. Mangsant, 65 Phil. 548) So, these
circumstances was not considered when the accused was drunk
at the time of the commission of the offense.

This aggravating circumstance is considered only in crimes

against persons, security or honor and not in
crimes against property such as robbery with homicide. (People
v. Ang, 62833, Oct. 8, 1985) The mere fact that the victim was a
woman is not itself sufficient to support the contention that there
was insult of disrespect to sex. It is necessary to prove the
specific fact or circumstance, other than that the victim is a
woman, showing insult or disregard of sex in order that it may be
considered as an aggravating circumstance, such as compelling a
woman to go to the house of the accused against her will. (US v.
Quevengco, 2 Phil. 412)

Disregard of respect due to sex and age may be included in

treachery. (People v. Limaco, 99 Phil. 35)

Dwelling includes dependencies, staircase, and enclosures under

the house. A place of sanctuary worthy of respect. (People v.
Parazo, May 14, 1997) A combination house and store is not a
dwelling. (People v. Magnaue, 3510, May 30, 1951) For dwelling
to be appreciated, it is not necessary that the victim is the owner
of the dwelling. It is enough that she has the right to be in the
dwelling and not only as an incidental circumstance. (People v.
Sto. Tomas, 138 SCRA 206) It is aggravating where the place is,
even for a brief moment, a home to the offended party though he
is not the owner thereof, provided that he did not provoke the
commission of the crime and the dwelling is not that of the
offender also. (People v. Badilla, 185 SCRA 554)
Dwelling is an aggravating circumstance even if one does not
enter the house of the victim. Such as when the assailant from
the outside shoots the victim inside his house. (People v.
Bautista, 440, Nov. 29, 1947) This circumstance is not
considered where provocation was given by the offended party
or where both parties reside in the same dwelling. In case of a
boarding house, each room of a boarder is considered a
separate dwelling. (People v. Daniel, 75 OG 4834)

Dwelling is aggravating if adultery is committed in the conjugal

dwelling because the respect due the conjugal house is violated
(US v. Ibanez, 33 Phil. 611) if the paramour is not residing in the
conjugal dwelling.

4. ACTS BE COMMITTED WITH ABUSE OF CONFIDENCE OR

OBVIOUS UNGRATEFULNESS. (Art. 14, Par. 4)
The requisites are:

If the accused raped a girl who was entrusted to his care by the
parents, there is betrayal of confidence reposed upon him by the
parents but not an abuse of the confidence of the offended party
(People v. Crumb, 46 OG 6162) since the confidence between the
parties must be personal. But if the offender was the servant of
the family and sometimes took care of the child, whom she later
killed, there is present grave abuse of confidence. (People v.
Caliso, 58 Phil. 283)

5. Crime be committed in the (1) Palace of the Chief Executive, or

(2) in his presence, or (3) where public authorities are engaged in
the discharge of their duties, or in (4) a place dedicated to
religious worship. (Art. 14, Par. 5)
In crime committed in the presence of the President, it is not
necessary that the latter be exercising his functions. With respect
to the first, third, and fourth, the crime must have been committed
with full consciousness of the place; in other words, the offender
must have intended to commit the crime at the place, knowing
fully well that the place deserves respect.

This circumstance is present when the accused stabbed the victim

in the office of the Chief of Police who was investigating a fist fight
between them. (People v. De Ananias, 96 Phil. 979)

6. NIGHTTIME, UNINHABITED PLACE OR BAND.

That the crime be committed at night time, or in an uninhabited
place, or by a band, whenever such circumstances may facilitate
the commission of the offense. Whenever more than 3 armed
malefactors shall have acted together in the commission of an
offense, it shall be deemed to have been committed by a band.
(Art. 14, Par. 6)

Nocturnity comprises the period of the day between sunset and

the beginning of dawn. But for nighttime to be appreciated, it
is not absolutely necessary that the offender purposely sought
nighttime to commit the crime; it is enough that it facilitated the
commission of the crime or his escape or prevented identification.
(People v. Cristobal, 91 SCRA 71) Where nocturnity is so
interlocked with the circumstance of treachery as to become part
of the latter, nocturnity cannot be taken into consideration as
an aggravating circumstance. (People v. Pardo, 79 Phil. 566) If
the commission of the crime was commenced at day time and it
was consummated at nighttime, such is not aggravated. (US v.
Dowdell, 11 Phil. 4) Chance meeting between the accused and
the victim negates nighttime as an aggravating circumstances.
(People v. Aquino, 124 SCRA 835) (Q9, 1994 Bar; Q3, 1997 Bar)

Uninhabited place (Despoblado) is determined not by the

distance of the nearest house to the scene of the crime, but
whether or not in the place where the crime was committed there
was a reasonable possibility of the victim receiving some help.
(People v. Bangug, 52 Phil. 87) Provided that solitude was
purposely sought or taken advantage of to facilitate the
commission of the felony. (People v. Coderes, 104 SCRA 255)

Band consists of at least four armed malefactors organized with

the intention of carrying out any unlawful design. They should
have acted together in the commission of the crime. If one has
no direct participation in the commission of the crime, like a
principal by inducement there is no band. (Gamara v. Valero, 51
SCRA 322) In a band, conspiracy is presumed, it need not be
proved.
Band is inherent in brigandage but not in simple robbery
committed by band. It is not considered in the crime of rape.
(People v. Corpus, 43 OG 2249) Band and abuse of superior
strength have the same essence which is the utilization of the
combined strength of the assailants to overpower the victim and
consummate the killing. (People v. Medrano, 31871, December
14, 1981)
7. CRIME COMMITTED ON THE OCCASION OF CALAMITY.
That the crime be committed on the occasion of a conflagration,
shipwreck, earthquake, epidemic, or other calamity or
misfortune. (Art. 14, Par. 7)

This is aggravating because the offender 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. (US v. Rodriguez, 19 Phil. 150)

The development of engine trouble at sea is a misfortune but it

does not come within the meaning of other calamity or
misfortune. (People v. Arpa, 27 SCRA 1037)

8. AID OF ARMED MEN WHO INSURE OR AFFORD

IMPUNITY.
That the crime be committed with the aid of armed men or
persons who insure or afford impunity. (Art. 14, Par. 8)

It should be borne in mind, that the armed men should not

participate in the execution of the felony. Otherwise, they
become co-principals. Casual presence is not aggravating if the
offender did not avail himself of any of their aid nor did he
knowingly count upon their assistance in the commission of the
crime. (US v. Abaigar, 2 Phil. 417) If used as a means to insure
its execution in the killing of a person, such is absorbed in
treachery.

9. RECIDIVISM (Art. 14, Par. 9)

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. Recidivism involves
at least two conviction, and hence, it is a form of plurality of crimes
like reiteration, habitual delinquency and quasi-recidivism. The
first conviction must be by final judgment and must take place
prior to the second conviction. (People v. Baldera, 86 Phil.
189) The number of years intervening between the convictions is
immaterial. Recidivism is likewise considered even if the offender
has been given absolute pardon for the first conviction, since
pardon merely extinguishes the penalty (US v. Sotelo, 28 Phil.
147) but not in the case of amnesty as such extinguishes all the
effects in law of the crime committed. (US v. Francisco, 10 Phil.
185)

Habitual delinquent is a person who within a period of ten (10)

years from the date of his release or last conviction of the crime
of serious or less serious physical injuries, robbery, theft, estafa,
or falsification, has been found guilty of any said crimes a third
time or oftener. (Art. 62, Par. 5)

Distinction:
Recidivism Habitual Delinquency

1. Applies to all offenses

1. Applicable only to robbery,
embraced in the same title of
theft, estafa, falsification,
the Code.
 serious and less serious
injuries.

2. Need not be alleged in the 2. Must be alleged or

complaint or information. charged.

3. If not offset, merely raises

the imposition of the 3. Carries with it an
prescribed penalty to its additional penalty.
maximum period.

4. Between each conviction

4. Intervening period
there should not be a lapse
between convictions is
of time of more than 10
immaterial.
years.

May the offender be a recidivist and a habitual delinquent at the

same time? Yes, if the offender was convicted for the third time
of theft within the conditions prescribed by law, the first and
second convictions referring to robbery and estafa, recidivism will
be aggravating in the imposition of the principal penalty for the
crime of theft. At the same time, by reason of such recidivism, he
is also a habitual delinquent, and is sentenced to the additional
penalty provided by law, although in the imposition of the said
additional penalty, recidivism is no longer considered as an
aggravating circumstance as it is inherent in this form of habitual
delinquency. (People v. Manalo, 8586, May 25, 1956) May the
offender be a habitual delinquent without being a recidivist? Yes,
if the three convictions refer to the specific felonies not embraced
in the same title of the Code like robbery, falsification and serious
physical injuries.

Quasi-recidivism arises when the offender shall commit a felony

after having been convicted by final judgment, before beginning
to serve the sentence, or while serving the same, he shall be
punished by the maximum period of the penalty prescribed by law
for the new felony, besides being penalized as a habitual
delinquent, if applicable. (Art. 160) This is not a separate crime
by itself.
It is necessary to allege recidivism in the information and to attach
thereto certified copies of the previous sentence rendered against
the accused to be presented during the trial. (People v. Martinada,
194 SCRA 36) (Q18, 1993 Bar)

10. REITERACION OR HABITUALITY.

That the offender has been previously punished for an offense to
which the law attaches an equal or greater penalty or for 2 or
more crimes to which it attaches a lighter penalty. (Art. 14, Par.
10)

In reiteracion (habituality), it is essential that the offender

must have been previously punished, i.e., he must have served,
partially or totally, the penalty imposed upon him; that the
penalty for the crime for which he was previously punished,
must be equal or greater than the penalty for the crime for which
he is on trial, or that he had previously been punished for 2 or
more offenses the penalty for which is lighter than
the penalty prescribed for the offenses for which he is on
trial. Reiteracion is discretionary on the court. In reiteracion, the
offenses are not embraced in the same title of the Code.
To be appreciated, it is necessary to present as evidence certified
copies of the sentence rendered against the accused, except when
the accused pleads guilty to an information alleging reiteracion.
(People v. Monterey, Sept. 3, 1996)

11. CRIME BE COMMITTED IN CONSIDERATION OF A

PRICE, REWARD, OR PROMISE. (Art. 14, Par. 11)
It is not enough that the one committed the crime received a gift
or a reward; it is essential that such price or reward
or promise must have been the prime consideration in the
commission of the crime. Thus, if the money was given, without
any previous promise, after the commission of the crime as an
expression of sympathy, this circumstance cannot be present. (US
v. Flores, 28 Phil. 29) The offender who induced others to commit
the crime for a price, promise or reward is a principal by
inducement. (People v. Otero, 51 Phil. 201)

12. CRIME BE COMMITTED BY MEANS OF INUNDATION,

FIRE, POISON, EXPLOSION, STRANDING OF A VESSEL OR
INTENTIONAL DAMAGE THERETO, DERAILMENT OF A
LOCOMOTIVE, OR BY THE USE OF ANY OTHER ARTIFICE
INVOLVING GREAT WASTE AND RUIN. (Art. 14, Par. 12)
It is essential that any of the means mentioned must have
been used by such offender in the commission of the crime.
Thus, if the building is burned as a means to kill the occupant, the
crime will be murder, not murder with arson. (People v. Villarega,
54 OG 3482) This is the only aggravating circumstance that could
be a crime in itself. Such that if a hand grenade was thrown into
a house and as a result of the explosion, the house was damaged
but no one was injured, the crime committed is the crime involving
destruction. (People v. Comporedondo, 47 OG 779)

13. THAT THE ACT BE COMMITTED WITH EVIDENT

PREMEDITATION. (Art. 14, Par. 13)
The 3 requisites of evident premeditation are:
a. The time when the accused determined to commit the crime.

b. An act manifestly indicating that the accused has clung to his

determination.

c. A sufficient lapse of time between such determination and

execution, to allow him to reflect upon the consequences of his
acts. (Q3, 1997 Bar)

In order that premeditation may be considered either as an

aggravating circumstance or as a qualifying circumstance, it
must be evident, that is, the intention to kill must be
manifest and it must have been planned in the mind of the
offender and carefully meditated. Conspiracy does not
necessarily imply evident premeditation although premeditation
can co-exist with price or reward. (US v. Nabor, 7 Phil. 267) This
circumstance is inherent in the crime of robbery, especially
committed by several persons, since there must be an agreement
and the persons have to meditate and reflect on the manner of
carrying out the crime and they have to act immediately in order
to succeed. (People Carillo, supra) But it may be considered in
robbery with homicide (People v. Valeriano, 1259, Sept. 19,
1955), if there is evident premeditation to kill besides stealing.

Mere threats to kill without evidence of sufficient time for

meditation and reflection do not constitute evident premeditation.
(People v. Apao Moro, 6771,May 18, 1957) An attack made in the
heat of anger negates evident premeditation. (People v. Amin,
39046, June 30, 1975)

14. CRAFT, FRAUD, OR DISGUISE IS EMPLOYED. (Art. 14,

Par. 14)
These are intellectual means in the commission of a crime and are
separate aggravating circumstances.

By the employment of craft and fraud, the offender resorts more

to intellectual rather than material means in order to attain his
objective. Craft is cunning or intellectual trickery or chicanery
resorted to by the accused to carry out his evil design. (People v.
Zea, 130 SCRA 77) There is craft when the accused assumed a
position of authority to gain entrance in a house to enable him to
be alone with the offended party to commit acts of lasciviousness
upon her. (People v. Timbol, 47 OG 1859) Also, this circumstance
is aggravating where the offenders pretended to be bona fide
passengers of a jeepney in order not to arouse suspicion, but once
inside the jeepney, they robbed the passengers and the driver.
(People v. Lee, 66848, Dec. 20, 1991) If the craft is used to insure
the commission of the crime without risk to the accused, it is
absorbed by treachery. (People v. Malig, 46 OG Sup. 11, 255)

Fraud which constitutes deceit and manifested by insidious words

or machination is illustrated in the case of the step-father of the
offended party, who taking advantage of the absence of the her
mother, took the young girl away and told her she was to be taken
to the house of her godmother but instead she was taken to
another house where she was raped. (People v. De Leon, 50 Phil.
539)

The term disguise refers to anything that the offender may use
to prevent recognition. If in spite of the disguise, the offender
was recognized, such cannot be aggravating. (People v. Sonsona,
8966, May 25, 1955)

15. THAT ADVANTAGE BE TAKEN OF SUPERIOR

STRENGTH, OR MEANS BE EMPLOYED TO WEAKEN THE
DEFENSE. (Art. 14, Par. 15)
There must be a notorious inequality of forces between the victim
and the aggressor, and to appreciate it, it is necessary to evaluate
the physical conditions of the protagonists and the arms employed
by each side. (People v. Cabiling, 74 SCRA 285) There must be
deliberate intent to take advantage of the same. (People v. Bello,
10 SCRA 298) Mere numerical superiority does not necessarily
involve superiority in strength. It is necessary to prove, besides,
that attackers cooperated in such a way as to secure advantage
from superiority in strength. (People v. Elizaga, 47 OG 38)

Abuse of superior strength is inherent in parricide when the

husband killed his wife, as generally the husband is physically
stronger than the wife. (People v. Galapia, supra) Also, it is
inherent in rape or is absorbed in the element of force. (People v.
Saylan, 130 SCRA 159)

Intoxication a victim with intention to kill him is characterized by

means employed to weaken the defense. (People v. Ducusin, 53
Phil. 280)

16. TREACHERY
That the act be committed with treachery (alevosia). There is
treachery when the offender commits any of the crimes against
persons, 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. (Art. 14, Par. 16)
In parricide, treachery is a generic aggravating circumstance as
well as in homicide, if it is not alleged in the information.

Even a frontal attack may be considered as such if it was sudden

and unexpected so that the victim had no
chance to defend himself or evade the blow. However,
suddenness of the attack itself does not
indicate treachery. It must be sought as a means to insure the
execution of the crime and to insure the attacker from the
defense forthcoming from the offended party. (People v. Bongo,
26909, Feb. 22, 1974) Treachery must exist at the
commencement of the execution of the felony. (US v. Balagtas,
19 Phil. 164) Thus, if the attack begun without treachery but the
same continued, and consummated with treachery, it will not be
considered. (Q6, 1995 Bar; Q6, 1993 Bar)

Treachery absorbs nighttime, abuse of superior strength,

uninhabited place, by band, aid of armed men, as well as means
to weaken the defense. When treachery rests upon a separate
fact, nighttime is not absorbed by treachery. Treachery may co-
exist with evident premeditation, as when the accused quarreled
with the deceased, threatened to kill him and on the following day
did so, when he surreptitiously entered the house of the deceased
and without warning, fired at the deceased who was shot
unaware. (People v. Mutya, 11255, Sept. 30, 1959) Treachery is
inherent in murder by poisoning. (People v. Caliso, 58 Phil. 283)
(Q10, 1991 Bar)

Any sudden and unexpected attack from behind is clearly

treacherous. However, an attack from behind or shooting at a
fleeing victim is not necessarily treacherous unless it appears that
the method of attack was adopted by the accused deliberately
with a special view to the accomplishment of the act without any
risk to the assailant from any defense that the party assaulted
may make. (People v. Canete, 44 Phil. 478) A shot in the back of
the victims head is not conclusive proof of treachery; the manner
of aggression or how the act which resulted in the death of the
victim had began and developed, must be proved. (People v.
Ablao, 183 SCRA 658)

But where the persons killed are children of tender years, being 1
year old, 6 years old and 12 years old, the killing is murder even
if the manner of the attack was not shown. (People v. Ganohon,
74670, April 30, 1991)

In sum, the following requisites must concur for treachery

to be present:
a. The culprit employed means, methods or forms of execution
which directly and specially tend to insure the offenders safety
from any retaliatory act on the part of the offended party.

b. That such means, method or manner of execution was

deliberately or consciously shown. (People v. Clemente, 21 SCRA
261) (Q3, 1997 Bar)

17. THAT THE MEANS BE EMPLOYED

OR CIRCUMSTANCES BROUGHT ABOUT WHICH ADD
IGNOMINY (SHAME OR DISGRACE) TO THE NATURAL
EFFECTS OF THE ACT. (Art. 14, Par. 17)
It is, as the saying goes, adding insult to injury; for
instance, raping a married woman in the presence of her
husband who was helpless to render any assistance, much less
to defend her as he was bound. Ignominy to be appreciated
must be inflicted on the victim while he is still alive. Thus, there
is no ignominy when the accused sliced and took the flesh from
the thighs, legs and shoulder of the victim after killing her with a
knife. (People v. Balondo, 27401, Oct. 31, 1969) There is
ignominy where the accused in committing the rape used not only
the missionary position, but also, the dog position as dogs do, i.e.,
entry from behind.

Ignominy produces moral suffering, while cruelty produces

physical suffering.

18. CRIME BE COMMITTED AFTER AN UNLAWFUL

ENTRY. (Art. 14, Par. 18)
There is unlawful entry when an entrance is effected by a way not
intended for the purpose. Entering through the window is unlawful
entry. The unlawful entrance must be made for the purpose of
committing a crime like rape or murder. But it is inherent in the
crime of trespass to dwelling (US v. Barberan, 17 Phil. 509) and
in robbery with force upon things although it may be considered
in robbery with violence or intimidation against persons. (Q3,
1997 Bar)

Unlawful entry to be aggravating must be for the purpose of

entrance and not for the purpose of escape. It must be alleged
in the information to qualify the crime to robbery; otherwise, the
crime will be theft. (People v. Sunga, 43 Phil. 205)
19. AS A MEANS TO THE COMMISSION OF A CRIME A
WALL, ROOF, FLOOR, DOOR, OR WINDOW BE
BROKEN.(Art. 14, Par. 19)
This means is for the purpose of committing a crime. It is inherent
in robbery with force upon things.

20. THAT THE CRIME BE COMMITTED WITH THE AID OF

PERSONS UNDER 15 YEARS OF AGE OR BY MEANS OF
MOTOR VEHICLES, MOTORIZED WATERCRAFT,
AIRSHIPS, OR OTHER SIMILAR MEANS. (Art. 14, Par. 20, as
amended by RA 5438)
There are two distinct aggravating circumstances. The first
shows the greater perversity of the offender in taking advantage
of the youthfulness of those persons for criminal purposes. The
second is intended to meet the problem created by modern
criminal in resorting to faster means of conveyance to commit the
crime. The use of motor vehicles facilitates the commission of the
crime. If the vehicle is used to facilitate only the escape of the
offender it is not aggravating. A scooter and a motorcycle are
included under similar means.

21. THAT THE WRONG DONE IN

THE COMMISSION OF THE CRIME BE
DELIBERATELY AUGMENTED BY CAUSING OTHER
WRONG NOT NECESSARY FOR ITS COMMISSION. (Art.
14, Par. 21)
It is essential that the offender inflicted the wounds not necessary
for the crime but for the purpose of making the victim
suffer more. For cruelty to exist, there must be proof that
the acts were perpetrated while the victim was still alive. This
circumstance is distinguished from that of ignominy in
that cruelty refers to physical suffering, whereas, ignominy is
circumscribed to moral suffering. Gagging of the mouth of a 3-
year old child with stockings, dumping him with head downward
into a box, and covering the box with sacks and other boxes,
causing slow suffocation, and as a result the child died, constitutes
cruelty. (People v. Lara, 113 SCRA 316) Also, in the crime of rape,
where the offender tied the victim to a bed and burnt her face
with a lighted cigarette while raping her. (People v. Lucas, 181
SCRA 316) (Q8, 1994 Bar)
The fact that 13 stabs wounds were inflicted upon the victim does
not constitute cruelty, absent proof that such wounds were
inflicted sadistically in a way that made the victim agonize before
the fatal blow which snuffed out his life was delivered. (People v.
Ferrer, 255 SCRA 19)

22. UNDER INFLUENCE OF DANGEROUS DRUGS. (RA 6425,

as amended)
When a crime is committed by an offender who is under the
influence of dangerous drugs, such state shall be considered as a
qualifying aggravating circumstance in the definition of a crime
and the application of the penalty provided in the Revised Penal
Code. (People v. Belgar, 92155, March 11, 1991)

23. SYNDICATE OR ORGANIZED CRIME GROUP.

This is a special aggravating circumstance, contemplates of a
group purposely formed or organized to engage in criminal
activities for gain, not merely the commission of a particular crime
by two or more persons who confederated and mutually helped
one another in its commission. The existence of a conspiracy does
not necessarily imply or carry with it this aggravating
circumstance. (People v. Alberca, June 26, 1996)

Alternative Circumstances
Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the
nature and effects of the crime and other conditions attending
its commission.
Specific circumstances:
1. RELATIONSHIP
It shall be taken into consideration when the offended party
is the spouse, ascendant, descendant, legitimate, natural, or
adopted brother or sister, or relative by affinity in the same
degree of the offender. (Art. 15)

Relationship of stepfather or stepmother and stepson or

stepdaughter is included by analogy as similar to ascendant or
descendant. (People v. Bersabal, 48 Phil. 439) But relationship
between uncle and niece is not included. (US v. Incierto, 15 Phil.
358)

Relationship is mitigating in crimes against property. But in theft,

estafa and malicious mischief, relationship is exempting.

It is considered as an aggravating circumstance in crimes against

persons if the offended party is of a higher level than the offender,
or when the offender and the offended party are relatives of the
same level. (People v. Mercado, 51 Phil. 99) As a rule, relationship
is mitigating if the offended party is of a lower level than that of
the offender or even exempting if committed by a parent in
excessive chastisement.

In crimes against chastity, relationship is aggravating whether the

offender is of a higher or lower degree than that of the offended
party. It is due to the nature of the crime. (People v. Porras, 58
Phil. 578)

2. INTOXICATION
As a general rule, intoxication is a mitigating circumstance. It must
be shown that at the time of the commission of the criminal act,
the accused has taken such quantity of alcoholic drinks to blur his
reason and deprive him of certain degree of control. (People v.
Boduso, 450, Sept. 30, 1974) Intoxication to be mitigating must
be proved to the satisfaction of the Court. (People v, Noble, 77
Phil. 93) It is aggravating only in two cases:

a. Where intoxication is habitual.

b. When it is intentional, that is, it is subsequent to the plan of

the commission of a felony.
For intoxication to be habitual, it is not necessary that the
offender should be drunk 7 days a week. It is enough that the
offender has acquired the habit of getting drunk, or drinking to
excess. If one who had plotted to kill the victim, had drunk wine
in order to embolden him in carrying out with his evil plan,
drunkenness is not mitigating. (People v. Hernandez, 3391, May
23, 1952)

3. DEGREE OF INSTRUCTION OR EDUCATION OF

OFFENDER.
As a rule, lack of instruction or a low degree of intelligence is
considered as a mitigating circumstance in all crimes except in
offenses against chastity and property. And also, in the crime of
murder, for a man as a rational being, has always been forbidden
to kill. (People v. Tabian, 126 SCRA 571) It
should be borne in mind that this circumstance is not
dependent on the matter of schooling; it depends more on the
alertness of the mind, the ability to observe and grasp the
significance of happenings around him. If one is unable to write
but is highly and exceptionally intelligent or mentally alert that he
easily realizes the significance of his act, there is no mitigating
circumstance. (People v. Gorospe, 105 Phil. 184)

High degree of instruction is aggravating if the offender availed

himself or took advantage of it in committing a crime as in the
case of a lawyer who commits falsification or a doctor who kills
his victim by means of poison.

PERSONS CRIMINALLY LIABLE

The following are criminally liable for grave and
less grave felonies:
1. Principals
The following are considered principals:

a. THOSE WHO TAKE DIRECT PART IN THE EXECUTION OF

THE ACT.
They are those who, participating in the criminal design,
personally take part in the execution of the felony by acts
tending to the same end. As a general rule, all those who
participated in a felony are liable as principal when a conspiracy
between or among them is established. (People v. Nierra, 96 SCRA
335)

b. THOSE WHO DIRECTLY FORCE OR INDUCE

OTHERS TO COMMIT THE OFFENSE.
Generally, the induction is done by means
of promises or reward or price, sometimes, by the utterance of
words. It is necessary that the person uttering the encouraging
words must have such a moral influence over the person induced
that the words of the other would practically amount to a
command; and the words uttered must have been the moving
factor that made the actor commit the offense, and that the
words uttered were used to procure the commission of the
offense.
There is a principal by induction or by inducement only if it is
shown that the crime was actually committed by another who was
induced. (People v. Ong Chiat Lay, 60 Phil. 788)
Regarding the induction, it is essential that (1) it be made directly
with the intention of procuring the commission of the crime, and
(2) that such inducement be the determining cause of the said
commission by the one induced. (People v. De la Cruz, 97 SCRA
385)

c. THOSE WHO COOPERATE IN THE COMMISSION OF THE

OFFENSE BY ANOTHER ACT WITHOUT WHICH IT WOULD
NOT HAVE BEEN ACCOMPLISHED. (Art. 17)
These are persons who, without personally participating in
the execution of the felony, nevertheless cooperate with the
principals by direct participation by performing
another act. The act performed by him must
be absolutely essential or indispensable to the extent that
without the act performed by him, the crime could not have been
committed. It is only when the evidence fails to show the
existence of conspiracy when the act of the alleged principals
by cooperation must be indispensable. An example of which is
the act of lending the boat for the purpose of robbing a person
who lived in an islet separated from the mainland by a wide
and deep river and accessible only by a water craft. The
lender becomes principal by indispensable cooperation. Also, the
act of initialing the check is indispensable to the act of
defraudation of the depositor as without it the check would not be
cashed. (US v. Lim Buanco, 14 Phil. 484)
But any cooperation, even done with knowledge of the criminal
intent of the accused, if not indispensable to the commission of
the crime, will make one liable as an accomplice. So, if the
accused knowingly aided the killers by casting stones at the victim
(People v. Tatlonghari, 27 SCRA 726) or the act of giving the
victim a fist blow after he was stabbed by the other accused
(People v. Vistido, 79 SCRA 719) the liability will be that of an
accomplice.

2. Accomplices
Those persons, who, not being principals, cooperate in the
execution of the offense by previous or simultaneous acts. (Art.
18)
The acts performed while material must not be
indispensable. Thus, where the accused is proven to have
merely assisted in guarding the detained persons to prevent
their escape, the accused should be held as an accomplice only
since the act performed by him was not indispensable. Ho
wever, if the person takes part in the conspiracy, he can never
be an accomplice.

An accomplice has knowledge of the criminal design of the

principal and all that he does is to concur with the latter in his
purpose, by cooperating in the execution of the crime by previous
or simultaneous acts, for the purpose of supplying material or
moral aid to the principal in an efficacious way. (People v. Tanzo,
44 Phil. 18)

It is also necessary that any wound inflicted by the accomplice

must not be the cause of death; if the wound is mortal, the
offender would be a principal by direct participation. (People v.
Aplegido, 76 Phil. 571)
Accomplices are also known as accessories before the
fact. Any doubt as to the participation of an individual in the
commission of the crime, is always resolved in favor of lesser
responsibility. (People v. Abiog, 15310, Oct. 31, 1961)
Supposing, while A is choking B, C suddenly appears and stabs B
mortally. If A continues choking B after the mortal wound is
inflicted, A will be an accomplice. His act is a concurrence in the
criminal design of C to kill B. (People v. Tamayo, supra) If,
however, he does not do any act after B is stabbed, A has no
liability in the killing of B by C. The liability of A and C will then
be individual. If there is conspiracy between A and C to kill B,
both will be collectively liable as principals for the death of B.

A person who assaults a victim already fatally wounded by another

is only regarded as an accomplice, unless there was anterior
conspiracy. (People v. Cagalingan, 188 SCRA 313)

3. Accessories
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:
a. By profiting themselves or assisting the offender to profit by
the effects of the crime.
Buying a gold watch from another, knowing that it was
stolen property, the accessory assists the thief to profit by the
effects of the crime. The accessory should materially benefit from
the act. Riding in a stolen vehicle is not profiting since it does
not improve his economic position. Profiting is not synonymous
to intent to gain as an element of theft. (People v. Morales, 71 OG
529)

b. By concealing or destroying the body of the crime, or the effects

or instruments thereof, in order to prevent its discovery.
In the crime of homicide, the body of the crime or the corpus
delicti is the fact of the killing, that is, a specific offense in fact
committed by someone. (People v. Marquez, 43 OG No. 5) A
person who place in one of the hands of the deceased after he
was killed to show that he was armed and it was necessary to kill
him for having offered resistance to the authorities, is an
accessory. (People v. Saladino, 3634, May 30, 1961) This is
similar to concealing the body of the crime 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 public functions or whenever the author of the crime is guilty
of treason, parricide, murder, or an attempt at the life of the Chief
Executive, or is known to be habitually guilty of some other
crime. (Art. 19)
If the one assisted is the accomplice, there is no accessory. The
public officer is an accessory irrespective of the crime committed
by the principal provided it is not a light felony. On the other
hand, in case of private person, the author of the crime must be
guilty of treason, parricide, murder or attempt against the life of
the President or is known to be habitually guilty of some other
crime. Thus, if a private person assists another who has been
guilty of robbery, he cannot be an accessory.
An accessory does not participate in the criminal design nor
cooperate in the commission of the crime. (People v. Verzola, 80
SCRA 600) If the principal is acquitted because the facts alleged
to have been committed are not proved or do not constitute a
crime, the accessory is not liable. (US v. Mendoza, 23 Phil.
194) But if the principal is acquitted because of an exempting
circumstance, the accessory may be held liable as the crime has
been committed. As long as the crime has been committed, even
if the principal has not been arrested and convicted, the accessory
may be held liable. (People v. Billon, 48 OG 1391)

The following are criminally liable for light felonies:

1. Principals
2. Accomplices
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 exception where the accessory profits or
assists in the principal to profit from the effects of the crime. (Art.
20)

The reason therefor is that if the accessory himself profited or

assisted to profit from the effects of the crime the motivating
power was not his relationship with the principal but his love
for money.