REVISED
ORTEGA NOTES
Book I
General
Provisions
CRIMINAL
LAW
Criminal law is
that branch of municipal law which defines crimes, treats of their nature and
provides for their punishment.
It is that branch of public substantive law which defines offenses and
prescribes their penalties. It is substantive because
it defines the state’s right to inflict punishment and the liability of the
offenders. It is public law because it deals with the relation of the
individual with the state.
Limitations on
the power of Congress to enact penal laws
1. Must be general in application.
2. Must not partake of the nature of an ex post facto law. (1987
Const. Art III, Sec.22)
3. Must not partake of the nature of a bill of attainder. (1987
Const. Art III, Sec 22)
4. Must not impose cruel and unusual punishment or excessive fines.
(1987 Const. Art III, Sec 19)
Characteristics of
Criminal Law
1. Generality
2. Territoriality
3. Prospectivity
GENERALITY
Generality of criminal law means that the criminal law of the country governs all
persons within the country regardless of their race, belief, sex or creed.
However, it is subject to certain exceptions brought about by international
agreement. Ambassadors, chiefs of states and other diplomatic officials are
immune from the application of penal laws when they are in the country where
they are assigned.
Note that
consuls are not diplomatic officers. This includes consul-general, vice-consul
or and consul in a foreign country, who are therefore, not immune to the
operation or application of the penal law of the country where they are
assigned.
Generality has no reference to territory. Whenever you are asked to explain this, it does not include territory. It
refers to persons that may be governed by the penal law.
[Take note
of the Visiting Forces Agreement, Art. V, which defines Criminal Jurisdiction
over United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the Philippine Government
(see attached supplement).]
TERRITORIALITY
Territoriality means that the penal laws of the country have force and effect only
within its territory. It cannot penalize crimes committed outside the same.
This is subject to certain exceptions brought about by international agreements
and practice. The territory of the country is not limited to the land where its
sovereignty resides but includes also its maritime and interior waters as well
as its atmosphere.
·
Terrestrial jurisdiction is the jurisdiction
exercised over land.
·
Fluvial jurisdiction is the jurisdiction exercised
over maritime and interior waters.
·
Aerial jurisdiction is the jurisdiction exercised
over the atmosphere.
The Archipelagic
Rule
All bodies of
water comprising the maritime zone and interior waters abounding different
islands comprising the Philippine Archipelago are part of the Philippine
territory regardless of their breadth, depth, width or dimension.
On the fluvial jurisdiction there is presently a departure from the
accepted International Law Rule, because the Philippines adopted the
Archipelagic Rule as stated above.
In the International Law Rule, when a strait within a country
has a width of more than 6 miles, the center lane in excess of the 3 miles on
both sides is considered international waters.
If a foreign
merchant vessel is in the center lane and a crime was committed there what law
will apply under the International Law Rule? the Archipelagic Rule?
Under the
International Rule, the law of the country where that vessel is registered will
apply, because the crime is deemed to have been committed in the high seas.
However, under
the Archipelagic Rule as declared in Article I of the 1987 Constitution, all
waters in the archipelago regardless of breadth, width or dimension are part of
our national territory. Under this Rule, there is no more center lane, all
these waters, regardless of their dimension or width are part of Philippine
territory.
So if a foreign
merchant vessel is in the center lane and a crime was committed, the crime will
be prosecuted before Philippine Courts.
Three
international law theories on aerial jurisdiction
1. The atmosphere over the country is free and not subject to the
jurisdiction of the subjacent state, except for the protection of its national
security and public order.
Under this theory, if a crime is
committed on board a foreign aircraft at the atmosphere of a country, the law
of that country does not govern unless the crime affects the national security.
2. Relative Theory- The subjacent state exercises jurisdiction over the
atmosphere only to the extent that it can effectively exercise control thereof.
Under this theory, if a crime was
committed on an aircraft that is already beyond the control of the subjacent
state, the criminal law of the state will not govern anymore. But if the crime
is committed in an aircraft within the atmosphere over a subjacent state that
exercises control, then its criminal law will govern.
3. Absolute Theory (adopted by the Philippines ) - The subjacent state
has complete jurisdiction over the atmosphere above it subject only to the
innocent passage by aircraft of a foreign country.
Under this theory, if the crime is
committed in an aircraft, no matter how high, as long as it can be established
that it is within the Philippine atmosphere, Philippine criminal law will
govern.
PROSPECTIVITY
This is also
called irretrospectivity.
Acts or
omissions will only be subject to a penal law if they are committed after a
penal law had already taken effect. Vice versa, this act or omission which has
been committed before the effectivity of a penal law could not be penalized by
such penal law because penal laws operate only prospectively.
In some
textbooks, an exemption is said to exist when the penal law is favorable to the
offender, in which case it would have retroactive application (RPC Art. 22);
provided that the offender is not a habitual delinquent and there is no
provision in the law against its retroactive application.
The exception where a penal law may be given retroactive application is
true only with a repealing law. If it is an original penal law, that exception
can never operate. What is contemplated by the exception is that there is an
original law and there is a repealing law repealing the original law. It is
the repealing law that may be given retroactive application to those who
violated the original law, if the repealing penal law is more favorable to the
offender who violated the original law. If there is only one penal law, it can
never be given retroactive effect.
Rule of prospectivity also applies to administrative rulings and
circulars
In Co vs. CA (1993), it was held that the principle of
prospectivity of statutes also applies to administrative rulings and circulars.
In this case, Circular No. 4 of the Ministry of Justice, dated December, 15, 1981 ,
provides that “where the check is issued as part of an arrangement to guarantee
or secure the payment of an obligation, whether pre-existing or not, the drawer
is not criminally liable for either estafa or violation of BP 22.” Subsequently,
the administrative interpretation was reversed in Circular No. 12, issued on
August 8, 1984, such that the claim that the check was issued as a guarantee or
part of an arrangement to secure an obligation or to facilitate collection, is
no longer a valid defense for the prosecution of BP 22. Hence, it was ruled in Que
vs. People that under the new Circular, a check issued merely to guarantee
the performance of an obligation is covered by BP 22. However, consistent with
the principle of prospectivity, the new doctrine should not apply to parties
who had relied on the old Circular and acted on the faith thereof. No
retrospective effect.
Effect of repeal of penal law to liability of offender
In some commentaries, there are distinctions as to whether the repeal
is express or implied. However, what affects the criminal liability of an
offender is not whether a penal law is expressly or impliedly repealed; it
is whether it is absolutely or totally repealed, or relatively or partially
repealed.
Total or absolute, or partial or relative repeal.-- As to the effect of repeal of penal law to the liability of
offender, qualify your answer by saying whether the repeal is absolute or total
or whether the repeal is partial or relative only.
A repeal is absolute or total when the crime punished under the
repealed law has been decriminalized by the repeal. Because of the repeal, the
act or omission which used to be a crime is no longer a crime. An example is
Republic Act No. 7363, which decriminalized subversion.
A repeal is partial or relative when the crime punished under the
repealed law continues to be a crime in spite of the repeal. This means that
the repeal merely modified the conditions affecting the crime under the
repealed law. The modification may be prejudicial or beneficial to the
offender. Hence, the following rule:
Consequences if repeal of penal law is total or absolute:
1. If a case is pending in court involving the violation of the
repealed law, the same shall be dismissed, even though the accused may
be a habitual delinquent. This is so because all
persons accused of a crime are presumed innocent until they are convicted by
final judgment. Therefore, the accused shall be acquitted.
2. If a case is already decided and the accused is already serving
sentence by final judgment, if the convict is not a habitual delinquent,
then he will be entitled to a release unless there is a reservation clause
in the penal law that it will not apply to those serving sentence at the time
of the repeal. But if there is no reservation, those who are not
habitual delinquents even if they are already serving their sentence will
receive the benefit of the repealing law. They are entitled to be released.
This does not mean that if they are not released,
they are free to escape. If they escape, they commit the crime of evasion of
sentence, even if there is no more legal basis to hold them in the
penitentiary. This is so because prisoners are accountabilities of the
government; they are not supposed to step out simply because their sentence has
already been completed, or that the law under which they are sentenced has been
declared null and void.
If they are not discharged from confinement, a
petition for habeas corpus should be filed to test the legality of their
continued confinement in jail.
If the convict, on the other hand, is a habitual
delinquent, he will continue serving the sentence in spite of the fact that the
law under which he was convicted has already been absolutely repealed. This is
so because penal laws should be given retroactive application to favor only
those who are not habitual delinquents.
A, a prisoner, learns that he is already overstaying in jail because
his jail guard, B, who happens to be a law student advised him that there is no
more legal ground for his continued imprisonment, and B told him that he can
go. A got out of jail and went home. Was there any crime committed?
As far as A, the prisoner who is serving sentence, is concerned, the
crime committed is evasion of sentence.
As far as B, the jail guard who allowed A to go, is concerned, the
crime committed is infidelity in the custody of prisoners.
Consequences if repeal of penal law is partial or relative:
1. If a case is pending in court involving the violation of the
repealed law, and the repealing law is more favorable to the accused, it shall be the one applied to him. So whether he is a habitual
delinquent or not, if the case is still pending in court, the repealing law
will apply unless there is a saving clause in the repealing law that it
shall not apply to pending causes of action.
2. If a case is already decided an the accused is already serving
sentence by final judgment, even if the repealing law
is partial or relative, the crime still remains to be a crime. Those who are not
habitual delinquents will benefit on the effect of that repeal, so that if
the repeal is more lenient to them, it will be the repealing law that will
apply to them.
For example, under the original law, the penalty
is six years. Under the repealing law, it is four years. Those convicted under
the original law will be subjected to the four-year penalty. This retroactive
application will not be possible if there is a saving clause that provides that
it should not be given retroactive effect.
Under Article 22, even if the offender is already
convicted and serving sentence, a law which is beneficial shall be applied to
him unless he is a habitual delinquent in accordance with Rule 5 of Article 62.
Express or implied repeal.- Express or
implied repeal refers to the manner the repeal is done.
Express repeal takes place when a subsequent law contains a provision
that such law repeals an earlier enactment. For example, in Republic Act No.
6425 (The Dangerous Drugs Act of 1972), there is an express provision of repeal
of Title V of the Revised Penal Code.
Implied repeals are not favored. It requires a competent court to
declare an implied repeal. An implied repeal will take place when there is a
law on a particular subject matter and a subsequent law is passed also on the
same subject matter but is inconsistent with the first law, such that the two
laws cannot stand together, one of the two laws must give way. It is the
earlier that will give way to the later law because the later law expresses the
recent legislative sentiment. So you can have an implied repeal when there are
two inconsistent laws. When the earlier law does not expressly provide that it
is repealing an earlier law, what has taken place here is implied repeal. If
the two laws can be reconciled, the court shall always try to avoid implied
repeals. For example, under Article 9, light felonies are those infractions of
the law for the commission of which a penalty of arresto mayor or a fine not
exceeding P200.00 or both is provided. On the other hand, under Article 26, a
fine whether imposed as a single or an alternative penalty, if it exceeds
P6,000.00 but is not less than P200.00, is considered a correctional penalty.
These two articles appear to be inconsistent. So to harmonize them, the Supreme
Court ruled that if the issue involves the prescription of the crime, the
felony will be considered a light felony and, therefore, prescribes within two
months. But if the issue involves prescription of the penalty, the fine of
P200.00 will be considered correctional and it will prescribe within 10 years.
Clearly, the court avoided the collision between the two articles.
Consequences if repeal of penal law is express or implied:
1. If a penal law is impliedly repealed, the subsequent repeal of
the repealing law will revive the original law. So the act or omission which was punished as a crime under the
original law will be revived and the same shall again be crimes although during
the implied repeal they may not be punishable.
2. If the repeal is express, the repeal of the repealing law will
not revive the first law, so the act or omission will no longer be penalized.
These effects of repeal do not apply to self-repealing laws or those
which have automatic termination. An example is the Rent Control Law which is
revived by Congress every two years.
When there is a repeal, the repealing law expresses the legislative
intention to do away with such law, and, therefore, implies a condonation of
the punishment. Such legislative intention does not exist in a self-terminating
law because there was no repeal at all.
BASIC MAXIMS IN CRIMINAL LAW
Doctrine of Pro Reo
Whenever a penal law is to be construed or applied and the law admits
of two interpretations - one lenient to the offender and one strict to the
offender- that interpretation which is lenient or favorable to the offender
will be adopted.
This is in consonance with the fundamental rule that all doubts shall
be construed in favor of the accused and consistent with the presumption of
innocence of the accused. This is peculiar only to criminal law.
One boy was accused of parricide and was found guilty. This is punished
by reclusion perpetua to death. Assuming you were the judge, would you give the
accused the benefit of the Indeterminate Sentence Law (ISLAW)? The ISLAW does
not apply when the penalty imposed is life imprisonment or death. Would you
consider the penalty imposable or the penalty imposed, taking into
consideration the mitigating circumstance of minority?
If you will answer “no,” then you go against the doctrine of Pro Reo,
because you can interpret the ISLAW in a more lenient manner. Taking into
account the doctrine, we can interpret the ISLAW to mean that the penalty
imposable and not the penalty prescribed by law, since it is more favorable for
the accused to interpret the law.
Nullum crimen, nulla poena sine lege
There is no crime when there is no law punishing the same. This is true to civil law countries, but not to common law countries.
Because of this maxim, there is no common law crime in the Philippines .
No matter how wrongful, evil or bad act is, if there is no law defining the
act, the same is not considered a crime.
Common law crimes are wrongful acts which the community/ society
condemns as contemptible, even though there is no law declaring the act
criminal.
Not any law punishing an act or omission may be valid as a criminal
law. If the law punishing an act is ambiguous, it is null and void.
Actus non facit reum, nisi mens sit rea
The act cannot be criminal where the mind is not criminal. This is true to a felony characterized by dolo, but not a felony
resulting from culpa. This maxim is not an absolute one because it is not
applied to culpable felonies, or those that result from negligence.
Utilitarian Theory or Protective Theory
The primary purpose of the punishment under criminal law is the
protection of society from actual or potential wrongdoers. The courts, therefore, in exacting retribution for the wronged
society, should direct the punishment to potential or actual wrongdoers, since
criminal law is directed against acts and omissions which the society does not
approve of. Consistent with this theory, the mala prohibita principle which
punishes an offense regardless of malice or criminal intent, should not be
utilized to apply the full harshness of the special law.
In Magno vs. CA, decided on June 26, 1992 , the Supreme Court acquitted
Magno of violation of Batas Pambansa Blg. 22 when he acted without malice. The
wrongdoer is not Magno but the lessor who deposited the checks. He should have
returned the checks to Magno when he pulled out the equipment. To convict the
accused would defeat the noble objective of the law and the law would be
tainted with materialism and opportunism.
DEVELOPMENT OF CRIMINAL LAW IN THE PHILIPPINES
Code of Kalantiao
If you will be asked about the development of criminal law in the Philippines ,
do not start with the Revised Penal Code. Under the Code of Kalantiao, there
were penal provisions. Under this code, if a man would have a relation with a
married woman, she is penalized. Even offending religious things, such as gods,
are penalized. The Code of Kalantiao has certain penal provisions. The
Filipinos have their own set of penology also.
Spanish Codigo Penal
When the Spanish Colonizers came, the Spanish Codigo Penal was made
applicable and extended to the Philippines
by Royal Decree of 1870. This was made effective in the Philippines on July 14, 1876 .
Who is Rafael Del Pan?
He drafted a correctional code which was after the Spanish Codigo Penal
was extended to the Philippines .
But that correctional code was never enacted into law. Instead, a committee was
organized headed by then Anacleto Diaz. This committee was the one which
drafted the present Revised Penal Code.
The Present Revised Penal Code
When a committee to draft the Revised Penal Code was formed, one of the
reference that they took hold of was the correctional code of Del Pan. In fact,
many provisions of the Revised Penal Code were no longer from the Spanish Penal
Code; they were lifted from the correctional code of Del Pan. So it was him who
formulated or paraphrased this provision making it simpler and more
understandable to Filipinos because at that time, there were only a handful who
understood Spanish.
Code of Crimes by Guevarra
During the time of President Manuel Roxas, a code commission was tasked
to draft a penal code that will be more in keeping with the custom, traditions,
traits as well as beliefs of the Filipinos. During that time, the code
committee drafted the so-called Code of Crimes. This too, slept in Congress. It
was never enacted into law. Among those who participated in drafting the Code
of Crimes was Judge Guellermo Guevarra.
Since that Code of Crimes was never enacted as law, he enacted his own
code of crimes. But it was the Code of Crimes that was presented in the Batasan
as Cabinet Bill No. 2. Because the Code of Crimes prepared by Guevarra was more
of a moral code than a penal code, there were several oppositions against the
code.
Proposed Penal Code of the Philippines
Through Assemblyman Estelito Mendoza, the UP Law
Center formed a committee which
drafted the Penal Code of the Philippines .
This Penal Code was substituted as Cabinet Bill No. 2 and this has been
discussed in the floor of the Batasang Pambansa. So the Code of Crimes now in
Congress was not the Code of Crimes during the time of President Roxas. This is
a different one. Cabinet Bill No. 2 is the Penal Code of the Philippines drafted by a code committee chosen
by the UP Law Center , one of them was Professor
Ortega. There were seven members of the code committee. It would have been
enacted into law if not for the dissolution of the Batasang Pambansa. The
Congress was planning to revive it so that it can be enacted into law.
Special Laws
During Martial Law, there are many Presidential Decrees issued aside
from the special laws passed by the Philippine Legislature Commission. All
these special laws which are penal in character, are part of our Penal Code.
DIFFERENT PHILOSOPHIES UNDERLYING THE CRIMINAL LAW SYSTEM
Classical or Juristic Philosophy
Best remembered by the maxim “An eye for an eye, a tooth for a
tooth.” [Note: If you want to impress the examiner, use the latin version-
Oculo pro oculo, dente pro dente.]
The purpose of penalty is retribution. The offender is made to suffer
for the wrong he has done. There is scant regard for the human element of the
crime. The law does not look into why the offender committed the crime. Capital
punishment is a product of this kind of school of thought. Man is regarded as a
moral creature who understands right from wrong. So that when he commits a
wrong, he must be prepared to accept the punishment therefore.
Positivist or
Realistic Philosophy
The purpose of
penalty is reformation. There is great respect for the human element because
the offender is regarded as socially sick who needs treatment, not punishment. Cages are like asylums, jails like hospitals. They are to segregate
the offenders from the “good” members of society.
From this
philosophy came the jury system, where the penalty is imposed on a case to case
basis after examination of the offender by a panel of social scientists which
do not include lawyers as the panel would not want the law to influence their
consideration.
Crimes are
regarded as social phenomena which constrain a person to do wrong although not
of his own volition. A tendency towards crime is the product of one’s
environment. There is no such thing as a natural born killer.
This philosophy
is criticized as being too lenient.
Eclectic or Mixed
Philosophy
This combines
both positivist and classical thinking. Crimes that are economic and social by
nature should be dealt with in a positivist manner; thus, the law is more
compassionate. Heinous crimes should be dealt with in a classical manner; thus,
capital punishment.
Since the
Revised Penal Code was adopted from the Spanish Codigo Penal, which in turn was
copied from the French Code of 1810 which is classical in character, it is said
that our Code is also classical. This is no longer true because with the
American occupation of the Philippines ,
many provisions of common law have been engrafted into our penal laws. The
Revised Penal Code today follows the mixed or eclectic philosophy. For example,
intoxication of the offender is considered to mitigate his criminal liability,
unless it is intentional or habitual; the age of the offender is considered;
and the woman who killed her child to conceal her dishonor has in her favor a
mitigating circumstance.
MALA IN SE AND MALA
PROHIBITA
Violations of
the Revised Penal Code are referred to as malum in se, which literally means,
that the act is inherently evil or bad or per se wrongful. On the other hand,
violations of special laws are generally referred to as malum prohibitum.
Note, however,
that not all violations of special laws are mala prohibita. While intentional
felonies are always mala in se, it does not follow that prohibited acts done in
violation of special laws are always mala prohibita. Even if the crime is
punished under a special law, if the act punished is one which is inherently
wrong, the same is malum in se, and, therefore, good faith and the lack of
criminal intent is a valid defense; unless it is the product of criminal
negligence or culpa.
Likewise when
the special laws require that the punished act be committed knowingly and
willfully, criminal intent is required to be proved before criminal liability
may arise.
For example,
Presidential Decree No. 532 punishes piracy in Philippine waters and the
special law punishing brigandage in the highways. These acts are inherently
wrong and although they are punished under special laws, the act themselves are
mala in se; thus good faith or lack of criminal intent is a defense.
Distinction
between crimes punished under the Revised Penal Code and crimes punished under
special laws
1. As to moral trait of the offender
In crimes punished under the Revised Penal Code, the moral trait of the
offender is considered. This is why liability would only arise when there is
dolo or culpa in the commission of the punishable act.
In crimes punished under special laws, the moral trait of the offender
is not considered; it is enough that the prohibited act was voluntarily done.
2. As to use of good faith as defense
In crimes punished under the Revised Penal Code, good faith or lack of
criminal intent is a valid defense; unless the crime is the result of culpa.
In crimes punished under special laws, good faith is not a defense.
3. As to degree of accomplishment of the crime
In crimes punished under the Revised Penal Code, the degree of
accomplishment of the crime is taken into account in punishing the offender;
thus, there are attempted, frustrated and consummated stages in the commission
of the crime.
In crimes punished under special laws, the act gives rise to a crime
only when it is consummated; there are no attempted or frustrated stages,
unless the special law expressly penalizes a mere attempt or frustration of the
crime.
4. As to mitigating and aggravating circumstances
In crimes punished under the Revised Penal Code, mitigating and
aggravating circumstances are taken into account since the moral trait of the
offender is considered.
In crimes punished under special
laws, mitigating and aggravating circumstances are not taken into account in
imposing the penalty.
5. As to degree of participation
In crimes punished under the Revised Penal Code, when there is more
than one offender, the degree of participation of each in the commission of the
crime is taken into account in imposing the penalty; thus, offenders are
classified as principal, accomplice and accessory.
In crimes punished under special laws, the degree of participation of
the offenders is not considered. All who perpetrated the prohibited act are
penalized to the same extent. There is no principal or accessory to consider.
1.
Three hijackers accosted the pilot
of an airplane. They compelled the pilot to change destination, but before the
same could be accomplished, the military was alerted. What was the crime
committed?
Grave
coercion. There is no such thing as attempted hijacking. Under special laws,
the penalty is not imposed unless the act is consummated. Crimes committed
against the provisions of a special law are penalized only when the pernicious
effects, which such law seeks to prevent, arise.
2. A mayor awarded a concession to his
daughter. She was also the highest bidder. The award was even endorsed by the
municipal council as the most advantageous to the municipality. The losing
bidder challenged the validity of the contract, but the trial court sustained
its validity. The case goes to the Sandiganbayan and the mayor gets convicted
for violation of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act).
He appeals alleging his defenses raised in the Sandiganbayan that he did not
profit from the transaction, that the contract was advantageous to the
municipality, and that he did not act with intent to gain. Rule.
Judgment
Affirmed. The contention of the mayor that he did not profit anything from the
transaction, that the contract was advantageous to the municipality, and that
he did not act with intent to gain, is not a defense. The crime involved is
malum prohibitum.
In the case of People
vs. Sunico, an election registrar was prosecuted for having failed to
include in the voter’s register the name of a certain voter. There is a
provision in the election law which proscribes any person from preventing or
disenfranchising a voter from casting his vote. In trial, the election
registrar raised as good faith as a defense. The trial court convicted him
saying that good faith is not a defense in violation of special laws. On
appeal, it was held by the Supreme Court that disenfranchising a voter from
casting his vote is not wrong because there is a provision of law declaring it
a crime, but because with or without a law, that act is wrong. In other words,
it is malum in se. Consequently, good faith is a defense. Since the prosecution
failed to prove that the accused acted with malice, he was acquitted.
Test to
determine if violation of special law is malum prohibitum or malum in se
Analyze the
violation: Is it wrong because there is a law prohibiting it or punishing it as
such? If you remove the law, will the act still be wrong?
If the working
of the law punishing the crime uses the word “willfully,” then malice must be
proven. Where malice is a factor, good faith is a defense.
In violation of
special law, the act constituting the crime is a prohibited act. Therefore,
culpa is not a basis of liability, unless the special law punishes an omission.
When given a
problem, take note if the crime is a violation of the Revised Penal Code or a
special law.
Q: Distinguish,
in their respective concepts and legal implications, between crimes mala in se
and crimes mala prohibita
A(Suggested):
In concept, crimes mala in se are those where the acts and omissions penalized
are inherently wrong that they are universally condemned. In crimes mala
prohibita, the acts are not inherently evil but prohibited by law for public
good, welfare and interest.
In legal
implications, good faith or lack of criminal intent is a defense in crimes mala
in se but not in crimes mala prohibita, where mere voluntary commission of the
prohibited act suffices. In crimes mala prohibita, criminal liability is
incurred when the crime is consummated while in mala in se, criminal liability
is incurred even when the crime is only attempted or frustrated. Also, in
crimes mala in se, mitigating and aggravating circumstances are appreciated in
imposing penalties but not in crimes mala prohibita, unless the special law has
adopted the scheme/scale of penalties in the RPC.
FELONY,
OFFENSE, MISDEMEANOR AND CRIME
Felony
A crime under
the Revised Penal Code is referred to as a felony. Do not use this term in reference to a violation of special law.
Offense
A crime
punished under a special law is called a statutory offense.
Misdemeanor
A minor
infraction of the law, such as a violation of an ordinance, is referred
to as a misdemeanor.
Crime
Whether the
wrongdoing is punished under the Revised Penal Code or under a special law, the
generic word crime can be used.
SCOPE OF
APPLICATION OF THE PROVISIONS OF THE REVISED PENAL CODE
The provisions
in Article 2 embraces two scopes of applications:
1. Intraterritorial- refers to the application of the Revised Penal Code
within the Philippine territory;
2. Extraterritorial- refers to the application of the Revised Penal Code
outside the Philippines
territory.
Intraterritorial
application
In the
intraterritorial application of the Revised Penal Code, Article 2 makes it
clear that it does not refer only to the Philippine archipelago but it also
includes the atmosphere, interior waters and maritime zone. So whenever you use
the word territory, do not limit this to land area only.
As far as
jurisdiction or application of the Revised Penal Code over crimes committed on
maritime zones or interior waters, the Archipelagic Rule shall be observed. So
the three-mile limit on our shoreline has been modified by the rule. Any crime
committed in the interior waters comprising the Philippine archipelago shall be
subject to our laws although committed on board a foreign merchant vessel.
A vessel is
considered a Philippine ship only when it is registered in accordance with
Philippine laws. Under international law, as long as such vessel is not within
the territorial waters of a foreign country, Philippine laws shall govern.
Extraterritorial
application
Extraterritorial
application of the Revised Penal Code on a crime committed on board a
Philippine ship or airship is not within the territorial waters or atmosphere
of a foreign country. Otherwise, it is the foreign country’s criminal law that
will apply.
However, there
are two situations where the foreign country may not apply its criminal law
even if a crime was committed on board a vessel within its territorial waters
and these are:
1. When the crime is committed in a war vessel of a foreign country,
because war vessels are part of the sovereignty of the country to whose navel
force they belong;
2. When the foreign country in whose territorial waters the crime was
committed adopts the French Rule, which applies only to merchant vessels,
except when the crime committed affects the national security or public order
of such foreign country.
The French Rule
The French Rule provides that the nationality of the vessel follows the
flag which the vessel flies, unless the crime committed endangers the national
security of a foreign country where the vessel is within jurisdiction in which
case such foreign country will never lose jurisdiction over such vessel.
The American or
Anglo-Saxon Rule
This rule
strictly enforces the territoriality of criminal law. The law of the foreign
country where a foreign vessel is within its jurisdiction is strictly applied,
except if the crime affects only the internal management of the vessel in which
case it is subject to the penal law of the country where it is registered.
Both the rules apply only to a foreign merchant vessel if a crime was
committed aboard that vessel while it was in the territorial waters of another
country. If that vessel is in the high seas or open seas, there is no occasion
to apply the two rules. If it is not within the jurisdiction of any country,
these rules will not apply.
A vessel is not
registered in the Philippines .
A crime is committed outside Philippine Territorial waters. Then the vessel
entered our territory. Will the Revised Penal Code apply?
Yes. Under the
old Rules of Criminal Procedure, for our courts to take cognizance of any crime
committed on board a vessel must be registered in the Philippines in accordance with
Philippine laws. Under the Revised Rules of Criminal Procedure, however, the requirement
that the vessel must be licensed and registered in accordance with Philippine
laws has been deleted from Section 25, paragraph c of Rule 110 of the Rules of
Court. The intention is to do away with the requirement so that as long as the
vessel is not registered under the laws of any country, our courts can take
cognizance of the crime committed in such vessel.
More than this,
the revised provision added the phrase “in accordance with generally
accepted principles of International Law.” So the intention is clearly to
adopt generally accepted principles of international law in the matter of
exercising jurisdiction over crimes committed in a vessel while in the course
of its voyage. Under international law rule, a vessel which is not
registered in accordance with the laws of any country is considered a pirate
vessel and piracy is a crime against humanity in general, such that wherever
pirates may go, they can be prosecuted (* piracy is hostes humanis generis).
Prior to the
revision, the crime would not have been prosecutable in our court. With the
revision, registration is not anymore a requirement and replaced with generally
accepted principles of international law. Piracy is considered a crime against
the law of nations.
In your answer,
reference should be made to the provision of paragraph c of Section 15 of the
Revised Rules of Criminal Procedure. The case may be regarded as an act of
piracy as long as it is done with “intent to gain.”
When public
officers or employees commit an offense in the exercise of their functions
The most common
subject of bar problems in Article 2 is paragraph 4: “While being public
officers or employees, [they] should commit an offense in the exercise of their
functions:”
As a general
rule, the Revised Penal Code governs only when the crime committed pertains to
the exercise of the public official’s functions, those having to do with the
discharge of their duties in a foreign country. The functions contemplated are
those, which are, under the law, to be performed by the public officer in the
Foreign Service of the Philippine government in a foreign country.
Exception: The
Revised Penal Code governs if the crime was committed within the Philippine
Embassy or within the embassy grounds in a foreign country. This is because
embassy grounds are considered an extension of sovereignty.
Illustration:
A Philippine
consulate official who is validly married here in the Philippines and who marries again
in a foreign country cannot be prosecuted here for bigamy because this is a
crime not connected with his official duties. However, if the second marriage
was celebrated within the Philippine embassy, he may be prosecuted here, since
it is as if he contracted the marriage here in the Philippines .
A consul was to
take a deposition in a hotel in Singapore .
After the deposition, the deponent approached the consul’s daughter and
requested certain parts of the deposition be changed in consideration of
$10,000.00. The daughter persuaded the consul and the latter agreed. Will the
crime be subject to the Revised Penal Code? If so, what crime or crimes have
been committed?
Yes.
Falsification.
Normally, the
taking of the deposition is not the function of the consul, his function being
the promotion of trade and commerce with another country. Under the Rules of
Court, however, a consul can take depositions or letters rogatory. There is,
therefore, a definite provision of the law making it the consul’s function to
take depositions. When he agreed to the falsification of the deposition, he was
doing so as a public officer in the service of the Philippine government.
Paragraph 5 of
Article 2, uses the phrase “as defined in Title One of Book Two of this Code.”
This is a very important part of the exception, because Title 1 of Book 2
(crimes against national security) does not include rebellion. So if acts of
rebellion were perpetrated by Filipinos who were in a foreign country, you
cannot give territorial application to the Revised Penal Code, because Title 1
of Book 2 does not include rebellion.
Illustration:
When a Filipino
who is already married in the Philippines ,
contracts another marriage abroad, the crime committed is bigamy. But the
Filipino can not be prosecuted when he comes back to the Philippines , because the bigamy was
committed in a foreign country and the crime is not covered by paragraph 5 of
Article 2. However, if the Filipino, after the second marriage, returns to the Philippines
and cohabits here with his second wife, he commits the crime of concubinage for
which he can be prosecuted.
The Revised
Penal Code shall not apply to any other crime committed in a foreign country
which does not come under any of the exceptions and which is not a crime
against national security.
HOW A
FELONY MAY ARISE
Punishable by the
Revised Penal Code
The term felony
is limited only to violations of the Revised Penal Code. When the crime is
punishable under a special law you do not refer to this as a felony, it is to
be understood as referring to crimes under the Revised Penal Code.
This is
important because there are certain provisions in the Revised Penal Code where
the term “felony” is used, which means that the provision is not extended to
crimes under special laws. A specific instance is found in Article 160-
Quasi-Recidivism, which reads:
A person who shall commit a felony after
having been convicted by final judgment, before beginning to serve sentence or
while serving the same, shall be punished under the maximum period of the
penalty.
Note that the
word “felony” is used.
1. If a prisoner who is serving sentence is
found in possession of dangerous drugs, can he be considered a
quasi-recidivist?
No. The
violation of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) is
not a felony. The provision of Article 160 specifically refers to a felony and
felonies are those acts and omissions punished under the Revised Penal Code.
2. Is illegal possession of a bladed weapon
a felony?
No. It is not
under the RPC.
An act or
omission
To be considered
as a felony, there must be an act or omission; a mere imagination no matter how
wrong does not amount to a felony. An act refers to any kind of body movement
that produces change in the outside world. For example, if A, a passenger of a
jeepney seated in front of a lady, started putting out his tongue suggesting
lewdness, that is already an act in contemplation of criminal law. He cannot
claim that there was no crime committed. If A scratches something, this is
already an act which annoys the lady he may be accused of unjust vexation, not
malicious mischief.
Dolo or culpa
However, it
does not mean that if an act or omission is punished under the Revised Penal
Code, a felony is already committed. To be considered a felony, it must also be
done with dolo or culpa.
Under Article
3, there is dolo when there is deceit. This is no longer true. At the time the
Revised Penal Code was codified, the term nearest to dolo was deceit. However,
deceit means fraud, and this is not the meaning of dolo.
Dolo is deliberate intent otherwise referred to as criminal intent, and
must be coupled with freedom of action and intelligence on the part of the
offender as to the act done by him.
The term,
therefore, has three requisites on the part of the offender:
1. Criminal intent;
2. Freedom of action; and
3. Intelligence
If any of these
is absent, there is no dolo. If there is no dolo, there could be no intentional
felony (Visbal vs. Buban, 2003).
What requisites
must concur before a felony may be committed?
There must be
(1) an act or omission; (2) punishable by the Revised Penal Code; and (3) the
act is performed or the omission incurred by means of dolo or culpa.
But although
there is no intentional felony, there could be culpable felony. Culpa requires
the concurrence of three requisites:
1. criminal negligence on the part of the offender, that is, the crime was
the result of negligence, reckless imprudence, lack of foresight or lack of
skill;
2. freedom of action on the part of the offender, that is, he was not
acting under duress; and
3. intelligence on the part of the offender in the performance of the
negligent act.
Between dolo
and culpa, the distinction lies on the criminal intent and criminal negligence.
If any of these requisites is absent, there can be no dolo nor culpa. When
there is no dolo or culpa, a felony cannot arise.
What do you
understand by “voluntariness” in criminal law?
The word
voluntariness in criminal law does not mean acting in one’s own volition. In
criminal law, voluntariness comprehends the concurrence of freedom of action,
intelligence and the fact that the act was intentional. In culpable felonies,
there is no voluntariness if either freedom, intelligence or imprudence,
negligence, lack of foresight or lack of skill is lacking. Without
voluntariness, there can be no dolo or culpa, hence, there is no felony.
In a case
decided by the Supreme Court, two persons went wild boar hunting. On their way,
they met Pedro standing by the door of his house and they asked him where they
could find wild boars. Pedro pointed to a place where wild boars were supposed
to be found, and the two proceeded thereto. Upon getting to the place, they saw
something moving, they shot, unfortunately ricocheted killing Pedro. It was
held that since there was neither dolo nor culpa, there is no criminal
liability.
In US vs.
Bindoy, accused had an altercation with X. X snatched the bolo from the
accused. To prevent X from using his bolo on him, accused tried to get it from
X. Upon pulling it back towards him, he hit someone from behind, instantly
killing the latter. The accused was found to be not liable. In criminal law,
there is pure accident, and the principle damnum absque injuria is also
honored.
Even culpable
felonies require voluntariness. It does not mean that if there is no criminal
intent, the offender is absolved of criminal liability, because there is culpa
to consider.
May a crime be
committed without criminal intent?
Yes. Criminal
intent is not necessary in these cases:
1. When the crime is the product of culpa or negligence, reckless
imprudence, lack of foresight or lack of skill;
2. When the crime is a prohibited act under a special law or what is
called malum prohibitum.
Criminal Intent
Criminal Intent
is not deceit. Do not use deceit in translating dolo, because the nearest
translation is deliberate intent.
In criminal
law, intent is categorized into two:
1. General criminal intent; and
2. Specific criminal intent.
General
criminal intent is presumed from the mere doing of a wrong act. This does not require proof. The burden is upon the wrong doer to
prove that he acted without such criminal intent.
Specific
criminal intent is not presumed because it is an ingredient or element of a
crime, like intent to kill in the crimes attempted or
frustrated homicide/ parricide/ murder. The prosecution has the burden of
proving the same.
Distinction between intent and discernment
Intent is the
determination to do a certain thing, an aim or purpose of the mind. It is the design to resolve or determination by which a person acts.
On the other
hand, discernment is the mental capacity to tell right from wrong. It
relates to the moral significance that a person ascribes to his act and relates
to the intelligence as an element of dolo, distinct from intent.
Distinction between intent and motive
Intent is
demonstrated by the use of a particular means to bring about a desired result-
it is not a state of mind or a reason for committing a crime.
On the other hand, motive implies motion. It is the moving power
which impels one to do an act. When there is motive in the commission of a
crime, it always comes before the intent. But a crime may be committed
without motive.
If the crime is
intentional, it cannot be committed without intent. Intent is manifested by the
instrument used by the offender. The specific criminal intent becomes material
if the crime is to be distinguished form the attempted or frustrated stage. For
example, a husband came home and found his wife in a pleasant conversation with
a former suitor. Thereupon, he got a knife. The moving force is jealousy. The
intent to resort to the knife, so that means he desires to kill the former
suitor.
Even if the
offender states that he had no reason to kill the victim, this is not criminal
intent. Criminal intent is the means resorted to by him that brought about the
killing. If we equate intent as a state of mind, many would escape criminal
liability.
In a case where
mother and son were living in the same house, and the son got angry and strangled
his mother, the son, when prosecuted for parricide, raised the defense that he
had no intent to kill his mother. It was held that criminal intent applies on
the strangulation of the vital part of the body. Criminal intent is on the
basis of the act, not on the basis of what the offender says.
Look into
motive to determine the proper crime which can be imputed to the accused. If a judge was killed, determine if the killing has any relation to
the official functions of the judge in which case the crime would be direct
assault complexed with murder/ homicide, not the other way around. If it has no
relation, the crime is simply homicide or murder.
Omission is the
inaction, the failure to perform a positive duty which he is bound to do. There
must be a law requiring the doing or performing of an act.
Distinction
between negligence and imprudence
1. In negligence, there is deficiency of action;
2. In imprudence, there is deficiency of perception.
Mens rea
The technical
term mens rea is sometimes referred to in common parlance as the gravamen of
the offense. To a layman, that is what you call the “bullseye” of the crime.
This term is used synonymously with criminal or deliberate intent, but that is
not exactly correct.
Mens rea of the
crime depends upon the elements of the crime. You can only detect the
mens rea of a crime by knowing the particular crime committed. Without
reference to a particular crime, this term is meaningless. For example, in
theft, the mens rea is the taking of property of another with intent to gain.
In falsification, the mens rea is the effecting of the forgery with intent to
pervert the truth. It is not merely writing something that is not true; the
intent to pervert the truth must follow the performance of the act.
In criminal
law, we sometimes have to consider the crime on the basis of intent. For
example, attempted or frustrated homicide is distinguished from physical
injuries only by the intent to kill. Attempted rape is distinguished from acts
of lasciviousness by the intent to have sexual intercourse. In robbery, the
mens rea is the taking of the property of another coupled with the employment
of intimidation or violence upon persons or things; remove the employment of
force or intimidation and it is not robbery any longer.
Mistake of fact
When an
offender acted out of a misapprehension of fact, it cannot be said that he
acted with criminal intent. Thus, in criminal law,
there is a “mistake of fact.” When the offender acted out of a mistake of fact,
criminal intent is negated, so do not presume that the act was done with
criminal intent. This is absolutory if the crime involved dolo.
Mistake of fact
would be relevant only when the felony would have been intentional or through
dolo, but not when the felony is a result of culpa. When the felony is a
product of culpa, do not discuss mistake of fact. When the felonious act is the
product of dolo and the accused claimed to have acted out of mistake of fact,
there should be no culpa in determining the real facts, otherwise, he is still
criminally liable, although he acted out of a mistake of fact. Mistake of fact
is only a defense in intentional felony but never in culpable felony.
Requisites of mistake of fact
1. That the act done would have been lawful had the facts been as the
accused believed them to be.
2. That the intention of the accused in performing the act should be
lawful.
Q: The accused
and his family lived in a neighborhood that often was the scene of frequent
robberies. At one time past midnight ,
the accused went downstairs with a loaded gun to investigate what he thought
were footsteps of an unwanted guest. After seeing what appeared to him an armed
stranger out to rob them, he fired his gun and seriously injured the man. When
the lights turned on, the man turned out to be a brother-in-law on his way to
the kitchen for some snacks. The accused was indicted for serious physical
injuries. Should he be acquitted or convicted, given the circumstances? Why?
A: He should be
acquitted. Considering the given circumstances - - frequent neighborhood
robberies, time was past midnight ,
and the victim appeared to be a robber in the dark, the accused could have
entertained an honest belief that his life and limb and those of his family are
already in immediate and imminent danger. Hence, it may be reasonable to accept
that he acted out of an honest MISTAKE OF FACT, without criminal intent. An
honest mistake of fact negatives criminal intent and absolves the accused from
liability.
Real concept of
culpa
Under Article 3,
it is clear that culpa is just a modality by which a felony may be committed. A
felony may be committed or incurred through dolo or culpa. Culpa is just a
means by which a felony may result.
In Article 365,
you have criminal negligence as an omission which the article definitely or
specifically penalized. The concept of criminal negligence is the inexcusable
lack of precaution on the part of the person performing or failing to perform
an act. If the danger impending from that situation is clearly manifest, you
have a case of reckless imprudence. But if the danger that would result from
such imprudence is not clear, not manifest nor immediate, you have only a case
of simple negligence. Because of Article 365, one might think that criminal
negligence is the one being punished. That is why a question is created that
criminal negligence is the crime in itself.
In People
vs. Faller, it was stated indirectly that criminal negligence or culpa is
just a mode of incurring criminal liability. In this case, the accused was
charged with malicious mischief. Malicious mischief is an intentional
negligence under Article 327 of the Revised Penal Code. The provision expressly
requires that there be a deliberate damaging of property of another, which does
not constitute destructive arson. You do not have malicious mischief through
simple negligence or reckless imprudence because it requires deliberateness.
Faller was charged with malicious mischief, but was convicted of damage to
property through reckless imprudence. The Supreme Court pointed out that
although the allegation in the information charged the accused with an
intentional felony, yet the words feloniously and unlawfully, which are
standard languages in an information, covers not only dolo but also culpa
because culpa is just a mode of committing a felony.
In Quezon
vs. Justice of the Peace, Justice J.B.L. Reyes dissented and claimed that
criminal negligence is a quasi-offense, and the correct designation should not
be homicide through reckless imprudence, but reckless imprudence resulting in
homicide. The view of Justice Reyes is sound, but the problem is Article 3,
which states that culpa is just a mode by which a felony may result.
Is culpa or
criminal negligence a crime?
First, point
out Article 3. Under Article 3, it is beyond question that culpa or criminal
negligence is just a mode by which a felony may arise; a felony may be
committed through dolo or culpa.
However,
Justice J.B.L. Reyes pointed out that criminal negligence is a quasi-offense. His
reason is that if criminal negligence is not a quasi-offense, and only a
modality, then it would have been absorbed in the commission of the felony and
there would be no need for Article 365 as a separate article for criminal
negligence. Therefore, criminal negligence, according to him, is not just a
modality; it is a crime by itself, but only a quasi-offense.
However, in Samson
vs. CA, where a person who has been charged with falsification as an
intentional felony, was found guilty of falsification through simple
negligence. This means that culpa or criminal negligence is just a modality of
committing a crime.
In some
decision on a complex crime resulting from criminal negligence, the Supreme
Court pointed out that when crimes result from criminal negligence, they should
not be made the subject of a different information. For instance, the offender was charged with simple
negligence resulting in slight physical injuries, and another charge for simple
negligence resulting in damage to property. The slight physical injuries which
are the result of criminal negligence are under the jurisdiction of the
inferior court. But damage to property, if the damage is more than P2,000.00,
would be under the jurisdiction of the Regional Trial Court because the imposable
fine ranges up to three times the value of the damage.
In People
vs. Angeles, the prosecution filed an information against the accused in an
inferior court for slight physical injuries through reckless imprudence and
filed also damage to property in the Regional Trial Court. The accused pleaded
guilty to the charge of slight physical injuries. When he was arraigned before
the Regional Trial Court, he invoked double jeopardy. He was claiming that he
could not be prosecuted again for the same criminal negligence. The Supreme
Court ruled that there is no double jeopardy because the crimes are two
different crimes. Slight physical injuries and damage to property are two
different crimes.
In so ruling
that there is no double jeopardy, the Supreme Court did not look into the
criminal negligence. The Supreme Court looked into the physical injuries and
the damage to property as the felonies and not criminal negligence.
In several
cases that followed, the Supreme Court ruled that where several consequences
result from reckless imprudence or criminal negligence, the accused should be
charged only in the Regional Trial Court although the reckless imprudence may
result in slight physical injuries. The Supreme Court argued that since there
was only one criminal negligence, it would be an error to split the same by
prosecuting the accused in one court and prosecuting him again in another for
the same criminal negligence. This is tantamount splitting a cause of action in
a civil case. For orderly procedure, the information should only be one. This,
however, also creates some doubts. As you know, when the information charges
the accused for more than the crime, the information is defective unless the
crime charged is a complex one or a special complex crime.
CRIMINAL
LIABILITY
Since in
Article 3, a felony is an act or omission punishable by law, particularly the
Revised Penal Code, it follows that whoever commits a felony incurs criminal
liability. In paragraph 1 of Article 4, the law uses the word “felony,” that
whoever commits a felony incurs criminal liability. A felony may arise not only
when it is intended, but also when it is the product of criminal negligence.
What makes paragraph 1 of Article 4 confusing is the addition of the qualifier
“although the wrongful act be different from what he intended.”
1. A man thought of committing suicide and
went on top of a tall building. He jumped, landing on somebody else, who died
instantly. Is he criminally liable?
Yes. A felony
may result not only from dolo but also from culpa. If that fellow who was
committing suicide acted negligently, he will be liable for criminal negligence
resulting in the death of another.
2. A had been courting X for the last five
years. X told A, “Let us just be friends. I want a lawyer for a husband and I
have already found somebody whom I agreed to marry. Anyway, there are still a
lot of ladies around; you will still have your chance with another lady.” A,
trying to show that he is a sport, went down from the house of X, went inside
his car, and stepped on the accelerator to the limit, closed his eyes, started
the vehicle. The vehicle zoomed, running over all pedestrians on the street. At
the end, the car stopped at the fence. He was taken to the hospital, and he
survived. Can he be held criminally liable for all those innocent people that
he ran over, claiming that he was committing suicide?
He will be
criminally liable, not for an intentional felony, but for culpable felony. This
is so because, in paragraph 1 of Article 4, the term used is “felony,” and that
term covers both dolo and culpa.
3. A pregnant woman thought of killing
herself by climbing up a tall building and jumped down below. Instead of
falling in the pavement, she fell on the owner of the building. An abortion
resulted. Is she liable for an unintentional abortion? If not, what possible
crime may have been committed?
The relevant
matter is whether the pregnant woman could commit unintentional abortion upon
herself. The answer is no because the way the law defines unintentional
abortion, it requires physical violence coming from a third party. When a
pregnant woman does an act that would bring about abortion, it is always
intentional. Unintentional abortion can only result when a third person employs
physical violence upon a pregnant woman resulting to an unintended abortion.
In one case, a
pregnant woman and man quarreled. The man could no longer bear the shouting of
the woman, so he got his firearm and poked it into the mouth of the woman. The
woman became hysterical, so she ran as fast as she could, which resulted in an
abortion. The man was prosecuted for unintentional abortion. It was held that
an unintentional abortion was not committed. However, drawing a weapon in the
height of a quarrel is a crime under light threats under Art. 285. An
unintentional abortion can only be committed out of physical violence, not from
mere threat.
Proximate cause
Article 4,
paragraph 1 presupposes that the act done is the proximate cause of the
resulting felony. It must be the direct, natural and logical consequence of the
felonious act.
Proximate cause
is that cause which sets into motion other causes and which unbroken by any
efficient supervening cause produces a felony and without which such felony
could not have resulted. He who is the cause of the cause is the evil of the
cause. As a general rule, the offender is criminally liable for all the
consequences of his felonious act, although not intended, if the felonious act
is the proximate cause of the felony or resulting felony. A proximate cause is
not necessarily the immediate cause. This may be a cause which is far and
remote from the consequence which sets into motion other causes which resulted
in the felony.
Illustrations:
A, B, C, D, and
E were driving their vehicles along Ortigas
Ave. A’s car was ahead, followed by those of B, C,
D, and E. When A’s car reached the intersection of EDSA and Ortigas Avenue, the
traffic light turned red so A immediately stepped on his break, followed by B,
C, and D. However, E was not aware that the traffic light had turned to red, so
he bumped the car of D, then D hit the car of C, then C hit the car of B, then,
finally, B hit the car of A. In this case, the immediate cause of the damage to
the car of A is the car of B, but that is not the proximate cause. The
proximate cause is the car of E because it was the care of E which sets into
motion the cars to bump into each other.
In one case, A
and B, who are brothers-in-law, had a quarrel. At the height of their quarrel,
A shot B with an airgun. B was hit at the stomach, which bled profusely. When A
saw this, he put B on the bed and told him not to leave because he will call a
doctor. While A was away, B rose from the bed, went into the kitchen and got a
kitchen knife and cut his throat. The doctor arrived and said that the wound in
the stomach is only superficial; only that it is a bleeder, but the doctor
could no longer save him because B’s throat was already cut. Eventually, B
died. A was prosecuted for manslaughter. The Supreme Court rationalized that
what made B cut his throat, in the absence of evidence that he wanted to commit
suicide, is the belief that sooner or later, he would die out of the wound
inflicted by A. Because of that belief, he decided to shorten the agony by cutting
his throat. That belief would not be engendered in his mind were it not because
of the profuse bleeding from his wound. Now, that profusely bleeding wound
would not have been there, were it not for the wound inflicted by A. As a
result, A was convicted for manslaughter.
In criminal
law, as long as the act of the accused contributed to the death of the victim,
even if the victim is about to die, he will still be liable for the felonious
act of putting to death that victim. In one decision, the Supreme Court held
that the most precious moment in a man’s life is that of the losing seconds
when he is about to die. So when you robbed him of that, you should be liable
for his death. Even if a person is already dying, if one suffocates him to end
up his agony, one will be liable for murder, when you put him to death, in a
situation where he is utterly defenseless.
In US vs.
Valdez, the deceased is a member of the crew of a vessel. Accused is in
charge of the crewmembers engaged in the loading of cargo in the vessel.
Because the offended party was slow in his work, the accused shouted at him.
The offended party replied that they would be better if he would not insult
them. The accused resented this, and rising in rage, he moved towards the
victim, with a big knife in hand threatening to kill him. The victim believing
himself to be in immediate peril threw himself into the water. The victim died
of drowning. The accused was prosecuted for homicide. His contention that his
liability should be only for grave threats since he did not even stab the
victim, that the victim died of drowning, and this can be considered as a
supervening cause. It was held that the deceased, in throwing himself into the
river, acted solely in obedience to the instinct of self-preservation, and was
in no sense legally responsible for his own death. As to him, it was but the
exercise of a choice between two evils, and any reasonable person under the
same circumstance might have done the same. The accused must, therefore, be
considered the author of the death of the victim.
This case
illustrates that proximate cause does not require that the offender needs to
actually touch the body of the offended party. It is enough that the offender
generated in the mind of the offended party the belief that made him risk
himself.
If a person
shouted fire, and because of that a moviegoer jumped into the fire escape and
died, the person who shouted fire when there is no fire is criminally liable
for the death of that person.
In a case where
a wife had to go out to the cold to escape a brutal husband and because of that
she was exposed to the elements and caught pneumonia, the husband was made
criminally liable for the death of the wife.
Even though the
attending physician may have been negligent and the negligence brought about
the death of the offended party—in other words, if the treatment was not
negligent, the offended party would have survived—is no defense at all, because
without the wound inflicted by the offender, there would have been no occasion
for a medical treatment.
Even if the
wound was called slight but because of the careless treatment, it was
aggravated, the offender is liable for the death of the victim and not only for
the slight physical injuries. The reason for this is that without the
infliction of the injury, there would have been no need for any medical
treatment. That the medical treatment proved to be careless or negligent, is
not enough to relieve the offender of the liability for the inflicted injuries.
When a person
inflicted a wound upon another, and his victim upon coming home got some
leaves, pounded them and put lime there, and applying this to the wound,
developed locked jaw and eventually died, it was held that the one who
inflicted the wound is liable for the death.
In another
instance, during a quarrel, the victim was wounded. The wound was superficial,
but just the same the doctor put inside some packing. When the victim went
home, he could not stand the pain, so he pulled out the packing. That resulted
into profuse bleeding and he died because of loss of blood. The offender who
caused the wound, although the wound caused was only slight, was held
answerable for the death of the victim, even if the victim would not have died
were it not for the fact that he pulled out that packing. The principle is that
without the wound, the act of the physician or the act of the offended party
would not have anything to do with the wound, and since the wound was inflicted
by the offender, whatever happens on that wound, he should be made punishable
for that.
In Urbano
vs. IAC, A and B had a quarrel and started hacking each other. B was
wounded at the back. Cooler heads intervened and they were separated. Somehow,
their differences were patched up. A agreed to shoulder all the expenses for
the treatment of the wound of B, and to pay him also whatever loss of income B
may have suffered. B, on the other hand, signed a forgiveness in favor of A and
on that condition, he withdrew the complaint that he filed against A. After so
many weeks of treatment in a clinic, the doctor pronounced that the wound was
already healed. Thereafter, B went back to his farm. Two months later, B came
home and was chilling. Before midnight ,
he died out of tetanus poisoning. The heirs of B filed a case of homicide
against A. The Supreme Court held that A is not liable. It took into account
the incubation period of tetanus toxic. Medical evidence were presented that
tetanus toxic is good only for two weeks. That if, indeed, the victim had
incurred tetanus poisoning out of the wound inflicted by A, he would not have
lasted two months. What brought about the tetanus to infect his body was his
work in the farm using his bare hands. Because of this, the Supreme Court said
that the act of B working in his farm where the soil is filthy, using is own
hands, is an efficient supervening cause which relieves A of any liability for
the death of B. A, if at all, is only liable for the physical injuries
inflicted upon B.
If you are
confronted with these facts of the Urbano case, where the offended party died
because of tetanus poisoning reason out according to the reasoning laid down by
the Supreme Court, meaning to say, the incubation period of the tetanus
poisoning was considered. Since tetanus toxic would affect the victim for no
longer than two weeks, the fact that the victim died two months later shows
that it is no longer tetanus brought about by the act of the accused. The
tetanus was gathered by his working in the farm and that is already an
efficient intervening cause.
The one who
caused the proximate cause is the one liable. The one who caused the immediate
cause is also liable, but merely contributory or sometimes totally not liable.
Wrongful act
done be different from what was intended
What makes the
first paragraph of Article 4 confusing is the qualification “although the
wrongful act done be different from what was intended.” There are three
situations contemplated under paragraph 1 of Article 4:
1. Aberratio ictus or mistake in blow;
2. Error in personae or mistake in identity;
3. Praeter intentionem or where the consequence exceeded the intention.
I.
Q:
A aroused the ire of her husband, B. Incensed with anger almost beyond his
control, B could not help but inflict physical injuries on A. Moments after B started
hitting A with his fists, A suddenly complained of severe chest pains. B,
realizing that A was in serious trouble, immediately brought her to the
hospital. Despite efforts to alleviate A’s pains, she died of a heart attack.
It turned out she was suffering from a heart ailment. What crime, if any, could
B be held guilty of?
A: Parricide. Although A died of a heart attack, the said attack was
generated by B’s felonious act of hitting her with his fists. Such felonious
act was the immediate cause of the heart attack, having materially contributed
to and hastened A’s death. Even though B
had no intent to kill his wife, lack of such intent is of no moment when the
victim dies. B. however, may be given the mitigating circumstance of having
acted without intent to commit so grave a wrong (Art. 13(3), RPC).
Q: On his way home from the office, ZZ rode in a jeepney. Subsequently,
XX boarded the same jeepney. Upon reaching a secluded spot in QC, XX pulled out
a grenade from his bag and announced a hold-up. He told ZZ to surrender his
watch, wallet and cellphone. Fearing for his life, ZZ jumped out of the
vehicle. But as he fell, his head hit the pavement, causing his instant death.
Is XX liable
for ZZ’s death? Explain briefly.
A (Suggested):
Yes, XX is liable for ZZ’s death because his acts of pulling a grenade and
announcing a hold-up, coupled with a demand for the watch, wallet and cellphone
of ZZ is felonious, and such felonious act was the proximate cause of ZZ’s
jumping out of the jeepney, resulting in the latter’s death. Stated otherwise,
the death of ZZ was the direct, natural and logical consequence of XX’s
felonious act which created an immediate sense of danger in the mind of ZZ who
tried to avoid such danger by jumping out of the jeepney (People v. Arpa, 27
SCRA 1036).
Aberratio ictus
In aberratio
ictus, a person directed the blow at an intended victim, but because of poor
aim, that blow landed on someone else. In aberratio ictus, the intended victim
as well as the actual victim are both at the scene of the crime.
Distinguish
this from error in personae, where the victim actually received the blow, but
he was mistaken for another who was not at the scene of the crime. The
distinction is important because the legal effects are not the same.
In aberratio ictus, the offender delivers the blow upon the intended
victim, but because of poor aim the blow landed on somebody else. You have a
complex crime, unless the resulting consequence is not a grave or less grave
felony. You have a single act as against the intended victim and also giving
rise to another felony as against the actual victim. To be more specific, let
us take for example A and B. A and B are enemies. As soon as A saw B at the
distance, A shot at B. However, because of poor aim, it was not B who was hit
but C. You can readily see that there is only one single act—the act of firing
at B. In so far as B is concerned, the crime at least is attempted homicide or
attempted murder, as the case may be, if there is any qualifying circumstance.
As far as the third party C is concerned, if C were killed, the crime is
homicide. If C was only wounded, the crime is only physical injuries. You
cannot have attempted or frustrated homicide or murder as far as C is
concerned, because as far as he is concerned, there is no intent to kill. As
far as that other victim is concerned, only physical injuries— serious or less
serious or slight.
If the
resulting physical injuries were only slight, then you cannot complex; you will
have one prosecution for the attempted homicide or murder, and another
prosecution for slight physical injuries for the innocent party. But if the
innocent party was seriously injured or less seriously injured, then you have
another grave or less grave felony resulting from the same act which gave rise
to attempted homicide or murder against B; hence, a complex crime.
In other words,
aberratio ictus, generally gives rise to a complex crime. This being so, the
penalty for the more serious crime is imposed in the maximum period. This is
the legal effect. The only time when a complex crime may not result in
aberratio ictus is when one of the resulting felonies is a light felony.
The facts were
one of aberratio ictus, but the facts stated that the offender aimed carelessly
in firing the shot. Is the felony the result of dolo or culpa? What crime was
committed?
All three
instances under paragraph 1, Article 4 are the product of dolo. In aberratio
ictus, error in personae and praeter intentionem, never think of these as the
product of culpa. They are always the result of an intended felony, and, hence
dolo. You cannot have these situations out of criminal negligence. The crime
committed is attempted homicide or attempted murder, not homicide through
reckless imprudence.
Error in personae
In error in
personae, the intended victim was not at the scene of the crime. It was the
actual victim upon whom the blow was directed, but he was not really the
intended victim. There was really a mistake in identity.
This is very
important because Article 49 applies only in a case of error in personae and
not in a case of aberratio ictus.
In Article 49,
when the crime intended is more serious than the crime actually committed or
vice versa, whichever crime carries the lesser penalty, that penalty will be
the one imposed. But it will be imposed in the maximum period. For instance,
the offender intended to commit homicide, but what was actually committed was
parricide because the person killed by mistake was somebody related to him
within the degree of relationship in parricide. In such a case, the offender
will be charged with parricide, but the penalty that would be imposed will be
that of homicide. This is because under Article 49, the penalty for the lesser
crime will be the one imposed, whatever crime the offender is prosecuted under.
In any event, the offender is prosecuted for the crime committed not for the
crime intended.
Illustrations:
A thought of
killing B. He positioned himself at one corner where B usually passes. When a
figure resembling B was approaching, A hid and when that figure was near him,
he suddenly hit him with a piece of wood on the nape, killing him. But it
turned out that it was his own father. The crime committed is parricide,
although what was intended was homicide. Article 49, therefore, will apply
because out of a mistake in identity, a crime was committed different from that
which was intended.
In another
instance, A thought of killing B. Instead of B, C passed. A thought that he was
B, so he hit C on the neck, killing the latter. Just the same the crime
intended to be committed is homicide and what was committed is actually
homicide, Article 49 does not apply. Here, error in personae is of no effect.
How does error
in personae affect criminal liability of the offender?
Error in
personae is mitigating if the crime committed is different from that which was
intended. If the crime committed is the same as that which was intended, error
in personae does not affect the criminal liability of the offender.
In mistake of
identity, if the crime committed was the same as the crime intended, but on a
different victim, error in personae does not affect the criminal liability of
the offender. But if the crime committed was different from the crime intended,
Article 49 will apply and the penalty for the lesser crime will be applied. In
a way, mistake in identity is a mitigating circumstance where Article 49
applies. Where the crime intended is more serious than the crime committed, the
error in personae is not a mitigating circumstance.
Praeter intentionem
In People
vs. Gacogo, 53 Phil 524, two persons quarreled. They had fist blows. The
other started to run away and Gacogo went after him, struck him with a fist
blow at the back of the head. Because the victim was running, he lost balance,
fell on the pavement and his head struck the cement pavement. He suffered
cerebral hemorrhage. Although Gacogo claimed that he had no intention of
killing the victim, his claim is useless. Intent to kill is only relevant when
the victim did not die. This is so because the purpose of intent to kill is to
differentiate the crime of physical injuries from the crime of attempted
homicide or attempted murder or frustrated homicide or frustrated murder. But
once the victim is dead, you do not have talk of intent to kill anymore. The
best evidence of intent to kill is the fact that the victim was killed.
Although Gacogo was convicted for homicide for the death of the person, he was
given the benefit of paragraph 3 of Article 13, that is, “that the offender did
not intend to commit so grave a wrong as that committed.”
This is the
consequence of praeter intentionem. In short, praeter intentionem is
mitigating, particularly covered by paragraph 3 of Article 13. In order
however, that the situation may qualify as praeter intentionem, there must be a
notable disparity between the means employed and the resulting felony. If there
is no disparity between the means employed by the offender and the resulting
felony, this circumstance cannot be availed of. It cannot be a case of praeter
intentionem because the intention of a person is determined by the means
resorted to by him in committing the crime.
Illustrations:
A stabbed his
friend when they had a drinking spree. While they were drinking, they had some
argument about a basketball game and they could not agree, so he stabbed him
eleven times. His defense is that he had no intention of killing his friend. He
did not intend to commit so grave a wrong as that committed. It was held that
the fact 11 wounds were inflicted on A’s friend is hardly compatible with the
idea that he did not intend to commit so grave a wrong as that committed.
In another
instance, the accused was a homosexual. The victim ridiculed or humiliated him
while he was going to the restroom. He was so irritated that he just stabbed
the victim at the neck with a lady’s comb with a pointed handle, killing the
victim. His defense was that he did not intend to kill him. He did not intend
to commit so grave a wrong as that of killing him. The contention was rejected,
because of the instrument used was pointed. The part of the body wherein it was
directed was the neck which is a vital part of the body. In praeter
intentionem, it is mitigating only if there is a notable or notorious disparity
between the means employed and the resulting felony. In criminal law, intent of
the offender is determined on the basis employed by him and the manner in which
he committed the crime. Intention of the offender is not what is in his mind;
it is disclosed in the manner in which he committed the crime.
In still
another case, the accused entered the store of a Chinese couple, to commit
robbery. They hogtied the Chinaman and his wife. Because the wife was so
talkative, one of the offenders got a pan de sal and placed it in her mouth.
But because the woman was trying to wiggle from the bondage, the pan de sal
slipped through her throat. She died because of suffocation. The offenders were
convicted for robbery with homicide because there was a resulting death, although
their intention was only to rob. They were given the benefit of paragraph 3 of
Article 13, “that they did not intend to commit so grave a wrong as that
committed.” There was really no intention to bring about the killing, because
it was the pan de sal that they put into the mouth. Had it been a piece of rag,
it would be different. In that case, the Supreme Court gave the offenders the
benefit of praeter intentionem as a mitigating circumstance. The means employed
is not capable of producing death if only the woman chewed the pan de sal.
A man raped a
young girl. The young girl was shouting so the man placed his hand on the mouth
and nose of the victim. He found out later that the victim was already dead;
she died of suffocation. The offender begged that he had no intention of
killing the girl and that his only intention was to prevent her from shouting.
The Supreme Court rejected the plea saying that a person who is suffocated may
eventually die. Do the offender was prosecuted for the serious crime of rape
with homicide and was not given the benefit of paragraph 3 of Article 13.
Differentiating
this first case with the case of the Chinaman and his wife, it would seem that
the difference lies in the means employed by the offender.
In praeter inentionem,
it is essential that there is a notable disparity between the means employed or
the act of the offender and the felony which resulted. This means that the
resulting felony cannot be foreseen from the act of the offender. If the
resulting felony can be foreseen or anticipated from the means employed, the
circumstance of praeter intentionem does not apply.
For example, if
A gave B a karate blow in the throat, there is no praeter intentionem because
the blow to the throat can result in death.
So also, if A
tried to intimidate B by poking a gun at the latter’s back, and B died of
cardiac arrest, A will be prosecuted for homicide but will be given the
mitigating circumstance of praeter intentionem.
In Ramos-Andan
v. People (2006) the court said that the mitigating circumstance of lack of
intention to commit so grave a wrong may not be availed of when fraud is
employed.
Impossible crime
An impossible
crime is an act which would be an offense against person or property were it
not for the inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.
1.
Accused was a houseboy in a house where only a
spinster resides. It is customary for the spinster to sleep in the nude because
her room was warm. It was also the habit of the houseboy that whenever she
enters her room, the houseboy would follow and peek into the keyhole. Finally,
when the houseboy could no longer resist the urge, he climbed into the ceiling,
went inside the room of his master, placed himself on top of her and abused
her, not knowing that she was already dead five minutes earlier. Was an
impossible crime committed?
Yes. Before,
the act performed by the offender could not have been a crime against person or
property. The act performed would have been constituted a crime against
chastity. An impossible crime is true only if the act done by the offender
constitutes a crime against person or property. However, with new rape law
amending the Revised Penal Code and classifying rape as a crime against
persons, it is now possible that an impossible crime was committed. Note,
however, that the crime might also fall under the Revised Administrative
Code—desecrating the dead.
2. A was driving his car
around Roxas Boulevard
when a person hitched a ride. Because this person was exquisitely dressed, A
readily welcomed the fellow inside his car and he continued driving. When he
reached a motel, A suddenly swerved his car inside. A started kissing his
passenger, but he found out that his passenger was not a woman but a man, and
so he pushed him out of the car and gave him fist blows. Is an impossible crime
committed? If not, is there any crime committed at all?
It cannot be an
impossible crime, because the act would have been a crime against chastity. The
crime is physical injuries or acts of lasciviousness, if this was done against
the will of the passenger. There are two ways of committing acts of
lasciviousness.
Under Article
336, where the acts of lasciviousness were committed under circumstances of
rape, meaning to say, there is employment of violence or intimidation or the
victim is deprived of reason. Even if the victim is a man, the crime of acts of
lasciviousness is committed. This is a crime that is not limited to a victim
who is a woman. Acts of lasciviousness require a victim to be a woman only when
it is committed under the circumstances of seduction. If it is committed under
the circumstances of rape, the victim may be a man or a woman. The essence of
an impossible crime is the inherent impossibility of accomplishing the crime or
the inherent impossibility of the means employed to bring about the crime. When
we say inherent impossibility, this means that under any and all circumstances,
the crime could not have materialized. If the crime could have materialized
under a different set of facts, employing the same mean or the same act, it is
not an impossible crime; it would be an attempted felony.
Under Article
4, paragraph 2, impossible crime is true only when the crime committed would
have been against person or against property. It is therefore important to know
what are the crimes against Title VIII, against persons and those against
property under Title X. An impossible crime is true only to any of those
crimes.
3. A entered a department
store at about midnight ,
when it was already closed. He went directly to the room where the safe or
vault was being kept. He succeeded in opening the safe, but the safe was empty.
Is an impossible crime committed? If not, what crime was possibly committed?
This is not an
impossible crime. That is only true if there is nothing more to steal. But in a
department store, there is plenty to steal, not only the money inside the vault
or safe. The fact that the vault had turned out to be empty is not really
inherently impossible to commit the crime of robbery. There are other things
that he could take. The crime committed therefore is attempted robbery,
assuming that he did not lay his hands on any other article. This could not be
trespass to dwelling because there are other things that can be stolen.
4. A and B were lovers. B was willing to
marry A except that A is already married. A thought of killing his wife. He
prepared her breakfast every morning, and every morning, he placed a little
dose of arsenic poison into the breakfast of the wife. The wife consumed all
the food prepared by her husband including the poison but nothing happened to
the wife. Because of the volume of the household chores that the wife had to
attend to daily, she developed a physical condition that rendered her strong
and resistant to any kind of poisoning, so the amount of poison applied to her
breakfast had no effect on her. Is there an impossible crime?
No impossible
crime is committed because the fact itself stated that what prevented the
poison from taking effect is the physical condition of the woman. So it implies
that if the woman was not of such physical condition, the poison would have
taken effect. Hence, it is not inherently impossible to realize the killing. The
crime committed is frustrated parricide.
If it were a
case of poisoning, an impossible crime would be constituted if a person who was
thinking that it was a poison that he was putting into the food of the intended
victim but actually it was vetsin or sugar or soda. Under any and all
circumstances, the crime could not have been realized. But if due to the
quantity of the vetsin, sugar or soda, the intended victim developed LBM and
was hospitalized, then it would not be a case of impossible crime anymore. It
would be a case of physical injuries, if the act done does not amount to some
other crime under the Revised Penal Code.
Do not confuse
an impossible crime with the attempted or frustrated stage.
5. Scott and Charles are roommates in a
boarding house. Everyday, Scott leaves for work but before leaving he would
lock the food cabinet where he kept his food. Charles resented this. One day,
he got an electric cord, tied the one end to the door know and plugged the
other end to an electric outlet. The idea was that, when Scott comes home to
open the doorknob, he would be electrocuted. Unknown to Charles, Scott is
working in an electric shop where he received a daily dosage of electric shock.
When Scott opened the doorknob, nothing happened to him. He was just surprised
to find out that there was an electric cord plugged to the outlet and the other
end to the doorknob. Was an impossible crime committed?
It is not an
impossible crime. The means employed is not inherently impossible to bring
about the consequence of his felonious act. What prevented the consummation of
the crime was because of some cause independent of the will of the perpetrator.
6. A and B are enemies. A, upon seeing B,
got the revolver of his father, shot B, but the revolver did not discharge
because the bullets were old, none of them discharged. Was an impossible crime
committed?
No. It was
purely accidental that the firearm did not discharge because the bullets were
old. If they were new, it would have fired. That is a cause other than the
spontaneous desistance of the offender, and therefore, an attempted homicide.
But if let us
say, when he started squeezing the trigger, he did not realize that the firearm
was empty. There was not bullet at all. There is an impossible crime, because
under any and all circumstance, an unloaded firearm will never fire.
Whenever you
are confronted with a problem where the facts suggest that an impossible crime
was committed, be careful about the question asked. If the question asked is:
“Is an impossible crime committed?” Then you judge that question on the basis
of the facts. If the facts really constitute an impossible crime, then you
suggest that an impossible crime is committed, then you state the reason for
the inherent impossibility.
If the question
asked is “Is he liable for an impossible crime?”, this is a catching question.
Even though the facts constitute an impossible crime, if the act done by the
offender constitutes some other crimes under the Revised Penal Code, he will
not be liable for an impossible crime. He will be prosecuted for the crime so
far by the act done by him. The reason is an offender is punished for an
impossible crime just to teach him a lesson because of his criminal perversity.
Although objectively, no crime is committed, but subjectively, he is a
criminal. That purpose of the law will also be served if he is prosecuted for
some other crime constituted by his acts which are also punishable under the
Revised Penal Code.
7. A and B are neighbors. They are jealous
of each other’s social status. A thought of killing B so A climbed the house of
B through the window and stabbed B on the heart, not knowing that B died a few
minutes ago of bangungot. Is A liable for an impossible crime?
No. A shall be
liable for qualified trespass to dwelling. Although the act done by A against B
constitutes an impossible crime, it is the principle of criminal law that the
offender shall be punished for an impossible crime only when his act cannot be
punished under some other provision of the Revised Penal Code.
In other words,
this idea of an impossible crime is one of last resort, just to teach the
offender a lesson because of his criminal perversity. If he could be taught of
the same lesson by charging him with some other crime constituted by his act,
then that will be the proper way. If you want to play safe, you state there
that although an impossible crime is constituted, yet it is a principle of
criminal law that he will only be penalized for an impossible crime if he
cannot be punished under some other provision of the Revised Penal Code.
If the question
is “Is an impossible crime committed?”, the answer is yes, because on the basis
of the facts stated, an impossible crime is committed. But to play safe, add
another paragraph: However, the offender will not be prosecuted for an
impossible crime but for _____ [state the crime]. Because it is a principle in
criminal law that the offender can only be prosecuted for an impossible crime
if his acts do not constitute some other crimes punishable under the Revised
Penal Code. An impossible crime is a crime of last resort.
Modified
Concept of impossible crime
In a way, the
concept of impossible crime has been modified by the decision of the Supreme
Court in the case of Intod vs. CA, et. al., 285 SCRA 52. In this case,
four culprits, all armed with firearms and with intent to kill, went to the
intended victim’s house and after having pinpointed the latter’s bedroom, all
four fired at and riddled the said room with bullets, thinking that the
intended victim was already there as it was about 10:00 in the evening. It so happened that the intended
victim did not come home on that evening and so was not in her bedroom at that
time. Eventually the culprits were prosecuted and convicted by the trial court
for attempted murder. The Court of Appeals affirmed the judgment but the
Supreme Court modified the same and held the petitioner liable only for the
so-called impossible crime. As a result, petitioner-accused was sentenced to
imprisonment of only six months of arresto mayor for the felonious act he
committed with intent to kill: this despite the destruction done to the
intended victim’s house. Somehow, the decision depreciated the seriousness of
the act committed, considering the lawlessness by which the culprits carried
out the intended crime, and so some members of the bench and bar spoke out
against the soundness of the ruling. Some asked questions, was it really the
impossibility of accomplishing the killing that brought about its non-accomplishment?
Was it not purely accidental that the intended victim did not come home that
evening and, thus, unknown to the culprits, she was not in her bedroom at the
time it was shot and riddled with bullets? Suppose, instead of using firearms,
the culprits set fire on the intended victim’s house, believing that she was
there when in fact she was not, would the criminal liability be for an
impossible crime?
Until the Intod case, the prevailing attitude was that the provision of
the Revised Penal Code on impossible crime would only apply when the wrongful
act, which would have constituted a crime against persons or property, could
not and did not constitute another felony. Otherwise, if such act constituted
any other felony although different from what the offender intended, the
criminal liability should be for such other felony and not for an impossible
crime. The attitude was so because Article 4 of the Code provides two
situations where criminal liability shall be incurred, to wit:
Article 4. Criminal liability—Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means.
Paragraph 1
refers to a situation where the wrongful act done constituted a felony although
it may be different from what he intended. Paragraph 2 refers to a situation
where the wrongful act done did not constitute any felony, but because the act
would have given rise to a crime against persons or against property, the same
is penalized to repress criminal tendencies to curtail their frequency. Because
criminal liability for impossible crime presupposes that no felony resulted
form the wrongful act done, the penalty is fixed at arresto mayor or a fine
from P200.00 to P500.00, depending on the “social danger and degree of
criminality shown by the offender”(Article 59), regardless of whether the
wrongful act was an impossible crime against persons or against property.
There is no
logic in applying paragraph 2 of Article 4 to a situation governed by paragraph
1 of the same Article, that is, where a felony resulted. Otherwise, a
redundancy or duplicity would be perpetrated.
In the Intod
case, the wrongful acts of the culprits caused destruction to the house of the
intended victim; this felonious act negates the idea of an impossible crime.
But whether we agree or not, the Supreme Court has spoken, we have to respect
its ruling.
NO CRIME UNLESS
THERE IS A LAW PUNISHING IT
When a person
is charged in court, and the court finds that there is no law applicable, the
court will acquit the accused and the judge will give his opinion that the said
act should be punished.
Article 5
covers two situations:
1. The court cannot convict the accused because the acts do not constitute
a crime. The proper judgment is acquittal, but the court is mandated to report
to the Chief Executive that said act be made subject of penal legislation and
why.
2. Where the court finds the penalty prescribed for the crime too harsh
considering the conditions surrounding the commission of the crime, the judge
should impose the law. The most that he could do is recommend to the Chief
Executive to grand executive clemency.
STAGES IN THE
COMMISSION OF A FELONY
The
classification of stages of a felony in Article 6 are true only to crimes under
the Revised Penal Code. This does not apply to crimes punished under special
laws. But even certain crimes which are punished under the Revised Penal Code
do not admit of these stages.
The purpose of
classifying penalties is to bring about a proportionate penalty and equitable
punishment. The penalties are graduated according to their degree of severity.
The stages may not apply to all kinds of felonies. There are felonies which do
not admit of division.
Formal Crimes
Formal crimes
are crimes which are consummated in one instance. For example, in oral
defamation, there is no attempted oral defamation or frustrated oral
defamation; it is always in the consummated stage.
So also, in
illegal exaction under Article 213 is a crime committed when a public officer
who is authorized to collect taxes, licenses or impose for the government,
shall demand an amount bigger than or different from what the law authorizes
him to collect. Under sub-paragraph a of Article 213 on illegal exaction, the
law uses the word “demanding.” Mere demanding of an amount different from what
the law authorizes him to collect will already consummate a crime, whether the
taxpayer pays the amount being demanded or not. Payment of the amount being
demanded is not essential to the consummation of the crime.
The difference
between the attempted stage and the frustrated stage lies on whether the
offender has performed all the acts of execution for the accomplishment of a
felony. Literally, under the article, if the offender has
performed all the acts of execution which should produce the felony as a
consequence but the felony was not realized, then the crime is already in the
frustrated stage. If the offender has not yet performed all the acts of
execution—there is something yet to be performed—but he was not able to perform
all the acts of execution due to some cause or accident other than his own
spontaneous desistance, then you have an attempted felony.
You will notice
that the felony begins when the offender performs an overt act. Not any act
will mark the beginning of a felony, and therefore, if the act so far being
done does not begin a felony, criminal liability correspondingly does not
begin. In criminal law, there is such a thing as preparatory act. These acts do
not give rise to criminal liability.
A and B are
husband and wife. A met C who was willing to marry him, but he is already
married. A thought of eliminating B and to poison her. So, he went to the
drugstore and bought arsenic poison. On the way out, he met D. D asked him who
was sick in the family, A confided to D that he bought the poison to poison his
wife in order to marry C. After that, they parted ways. D went directly to the
police and reported that A is going to kill his wife. So the policemen went to
A’s house and found A still unwrapping the arsenic poison. The policemen asked
A if he was planning to poison his wife B and A said yes. The police arrested
him and charged him with attempted parricide. Is the charge correct?
No. Overt act
begins when the husband mixed the poison with the food his wife is going to
take. Before this, there is no attempted stage yet.
An overt act is
that act which if allowed to continue its natural course would definitely
result into a felony.
In the
attempted stage, the definition uses the word “directly.” This is significant.
In the attempted stage, the acts so far performed may already be a crime or it
may just be an ingredient of another crime. The word “directly” emphasizes the
requirement that the attempted felony is that which is directly linked to the
overt act performed by the offender, no the felony he has in his mind.
In criminal
law, you are not allowed to speculate, not to imagine what crime is intended,
but apply the provisions of the law to the facts given.
When a person
starts entering the dwelling of another, that act is already trespassing. But
the act of entering is an ingredient of robbery with force upon things. You
could only hold him liable for attempted robbery when he has already completed
all acts performed by him directly leading to robbery. The act of entering
alone is not yet indicative of robbery although that may be what he may have
planned to commit. In law, the attempted stage is only that overt act which is
directly linked to the felony intended to be committed.
In US vs.
Namaja, the accused was arrested while he was detaching some of the wood
panels of a store. He was already able to detach two panels. To a layman, the
only conclusion that will come to your mind is that this fellow started to
enter the store to steal something. He would not be there just to sleep there.
But in criminal law, since the act of removing the panel indicates only at most
the intention to enter. He can only be prosecuted for trespass. The removal of
the paneling is just an attempt to trespass, not an attempt to rob. Although
Namaja was prosecuted for attempted robbery, the Supreme Court held it is only
attempted trespass because that is the crime that can be directly linked to his
act of removing the wood panel.
There are some
acts which are ingredients of a certain crime, but which are, by themselves,
already criminal offenses.
In abduction,
your desire may lead to acts of lasciviousness. In so far the woman being
carried is concerned, she may already be the victim of lascivious acts. The crime
is not attempted abduction but acts of lasciviousness. You only hold him liable
for an attempt, so far as could be reasonably linked to the overt act done by
him. Do not go far and imagine what you should do.
A awakened one
morning with a man sleeping in his sofa. Beside the man was a bag containing
picklocks and similar tools. He found out that the man entered the sala by
cutting the screen on his window. If you were to prosecute this fellow, for
what crime are you going to prosecute him?
The act done by
him of entering through an opening not intended for the purpose is only
qualified trespass. Qualified trespass because he did so by cutting through the
screen. There was force applied in order to enter. Other than that, under
Article 304 of the Revised Penal Code, illegal possession of picklocks and
similar tools is a crime. Thus, he can be prosecuted for two crimes: 1.
qualified trespass to dwelling, and 2. illegal possession of picklocks and
similar tools; not complex because one is not necessary means to commit the
other.
Desistance
Desistance on
the part of the offender negates criminal liability in the attempted stage.
Desistance is true only in the attempted stage of the felony. If under the
definition of the felony, the act done is already in the frustrated stage, no
amount of desistance will negate criminal liability.
The spontaneous
desistance of the offender negates only the attempted stage but not necessarily
all criminal liability. Even though there was desistance on the part of the
offender, if the desistance was made when acts done by him already resulted to
a felony, that offender will still be criminally liable for the felony brought
about his act. What is negated is only the attempted stage, but there may be
other felonies constituting his act.
Illustrations:
A fired at B
and B was hit on the shoulder. But B’s wound was not mortal. What A then did
was to approach B, and told B, “Now you are dead, I will kill you.” But A took
pity and kept the revolver and left. The crime committed is attempted homicide
and not physical injuries, because there was an intention to kill. The
desistance was with the second shot and would not affect the first shot because
the first shot had already hit B. The second attempt has nothing to do with the
first.
In another
instance, A has a very seductive neighbor in the person of B. A had always been
looking at B and had wanted to possess her but their status were not the same.
One evening, after A saw B at her house and thought that B was already asleep,
he entered the house of B through the window to abuse her. He, however, found
out that B was nude so he lost interest and left. Can A be accused of attempted
rape? No, because there was desistance, which prevented the crime from being
consummated. The attempted stage was erased because the offender desisted after
having commenced the commission of the felony.
The attempted
felony is erased by desistance because the offender spontaneously desisted from
pursuing the acts of execution. It does not mean, however, that there is no
more felony committed. He may be liable for a consummated felony constituted by
his act of trespassing. When A entered the house through the window, which is
not intended for entrance, it is always presumed to be against the will of the
owner. If the offender proceeded to abuse the woman, but the latter screamed,
and A went out of the window again, he could not be prosecuted for qualified
trespass. Dwelling is taken as an aggravating circumstance so he will be
prosecuted for attempted rape aggravated by dwelling.
In deciding
whether a felony is attempted or frustrated or consummated, there are three
criteria involved:
1. The manner of committing the crime;
2. The elements of the crime; and
3. The nature of the crime itself.
Manner of committing
a crime
For example,
let us take the crime of bribery. Can the crime of frustrated bribery be
committed? No. (Incidentally, the common concept of bribery is that it is the
act of one who corrupts a public officer. Actually, bribery is the crime of the
receiver, not the giver. The crime of the giver is corruption of public
official. Bribery is the crime of the public officer who in consideration of an
act having to do with his official duties would receive something, or accept
any promise or present in consideration thereof.)
The confusion
arises from the fact that this crime requires two to commit—the giver and the
receiver. The law called the crime of the giver as corruption of public
official and the receiver as bribery. Giving the idea that these are
independent crimes, but actually, they cannot arise without the other. Hence,
if only one side of the crime is present, only corruption, you cannot have
consummated corruption without the corresponding consummated bribery. There
cannot be a consummated bribery without the corresponding consummated
corruption. If you have bribery only, it is only possible in the attempted
stage. If you have corruption only, it is possible only in the attempted stage.
A corruptor gives money to a public officer for the latter not to prosecute
him. The public officer received the money but just the same, arrested him. He
received the money to have evidence of corruption. Do not think that because
the corruptor has already delivered the money, he has already performed all the
acts of execution and, therefore, the corruption is already beyond the
attempted stage. That thinking does away with the concept of the crime that it
requires two to commit. The manner of committing the crime requires the meeting
of the minds between the giver and the receiver.
When the giver
delivers the money to the supposed receiver, but there is no meeting of the
minds, the only act done by the giver is an attempt. It is not possible for him
to perform all the acts of execution because in the first place, the receiver
has no intention of being corrupted. Similarly, when a public officer demands a consideration by
official duty, the corruptor turns down the demand, there is no bribery.
If the one to
whom the demand was made pretended to give, but he had reported the matter to
higher authorities, the money was marked and this was delivered to the public
officer. If the public officer was arrested, do not think that because the
public officer already had the money in his possession, the crime is already
frustrated bribery, it is only attempted bribery. This is because the supposed
corruptor has no intention to corrupt. In short, there is no meeting of the
minds. On the other hand, if there is a meeting of the minds, there is
consummated bribery or consummated corruption. This leaves out the frustrated
stage because of the manner of committing the crime.
But indirect
bribery is always consummated. This is because the manner of consummating the
crime does not admit of attempt or frustration.
You will notice
that under the Revised Penal Code, when it takes two to commit the crime, there
could hardly be a frustrated stage. For instance, the crime of adultery. There
is frustrated adultery. Only attempted or consummated. This is because it requires
the link of two participants. If that link is there, the crime is consummated;
if such link is absent, there is only an attempted adultery. There is no middle
ground when the link is there and when the link is absent.
There are
instances where an intended felony could already result from the acts of
execution already done. Because of this, there are felonies where the offender
can only be determined to have performed all the acts of execution when the
resulting felony is already accomplished. Without the resulting felony, there
is no way of determining whether the offender has already performed all the
acts of execution or not. It is in such felonies that the frustrated stage does
not exist because without the felony being accomplished, there is no way of
stating that the offender has already performed all the acts of execution. An
example of this is the crime of rape. The essence of the crime is carnal
knowledge. No matter what the offender may do to accomplish a penetration, if
there was no penetration yet, it cannot be said that the offender has performed
all the acts of execution. We can only say that the offender in rape has
performed all the acts of execution when he has effected a penetration. Once
there is penetration already, no matter how slight, the offense is consummated.
For this reason, rape admits only of the attempted and consummated stages, no
frustrated stage. This was the ruling in the case of People vs. Orita.
In rape, it
requires the connection of the offender and the offended party. No penetration
at all, there is only an attempted stage. Slightest penetration or slightest
connection, consummated. You will notice this from the nature of the crime
requiring two participants.
This is also
true in the crime of arson. It does not admit of the frustrated stage. In
arson, the moment any particle of the premises intended to be burned is
blackened, that is already an indication that the premises have begun to burn.
It does not require that the entire premises be burned to consummate arson.
Because of that, the frustrated stage of arson has been eased out. The
reasoning is that one cannot say that the offender, in the crime of arson, has
already performed all the acts of execution which could produce the destruction
of the premises through the use of fire, unless a part of the premises has
begun to burn. If it has not begun to burn, that means that the offender has
yet to perform all the acts of execution. On the other hand, the moment it
begins to burn, the crime is consummated. Actually, the frustrated stage is
already standing on the consummated stage except that the outcome did not
result. As far as the stage is concerned, the frustrated stage overlaps the
consummated stage.
Because of this
reasoning by the Court of Appeals in People vs. Garcia, the Supreme
Court followed the analysis that one cannot say that the offender in the crime
of arson has already performed all the acts of execution which would produce
the arson as a consequence, unless and until a part of the premises had begun
to burn.
In US vs.
Valdez, the offender had tried to burn the premises by gathering jute sacks
laying these inside the room. He lighted these, and as soon as the jute sacks
began to burn, he ran away. The occupants of the room put out the fire. The court
held that what was committed was frustrated arson.
This case was
much the way before the decision in the case of People vs. Garcia was
handed down and the Court of Appeals ruled that there is no frustrated arson.
But even then, the analysis in the case of US vs. Valdez is correct.
This is because, in determining whether the felony is attempted, frustrated or
consummated, the court does not only consider the definition under Article 6 of
the Revised Penal Code, or the stages of execution of the felony. When the
offender has already passed the subjective stage of the felony, it is beyond
the attempted stage. It is already on the consummated or frustrated stage
depending on whether a felony resulted. If the felony did not result,
frustrated.
The attempted
stage is said to be within the subjective phase of execution of a felony. On
the subjective phase, it is that point in time when the offender begins the
commission of an overt act until that point where he loses control of the
commission of the crime already. If he has reached that point where he can no
longer control the ensuing consequence, the crime has already passed the
subjective phase and, therefore, it is no longer attempted. The moment the
execution of the crime has already gone to that point where the felony should
follow as a consequence, it is either already frustrated or consummated. If the
felony does not follow as a consequence, it is already frustrated. If the
felony follows as a consequence, it is consummated.
The trouble is
that, in the jurisprudence recognizing the objective phase and the subjective
phase, the Supreme Court considered not only the acts of the offender, but also
his belief. That although the offender may not have done the act to bring about
the felony as a consequence, if he could have continued committing those acts
but he himself did not proceed because he believed that he had done enough to
consummate the crime, Supreme Court said the subjective phase has passed. This
was applied in the case of US vs. Valdez, where the offender, having
already put kerosene on jute sacks, lighted the same, he had no reason not to
believe that the fire would spread, so he ran away. That act demonstrated that
in his mind, he believed that he has performed all the acts of execution and that
it is only a matter of time that the premises will burn. The fact that the
occupant of the other room came out and put out the fire is a cause independent
of the will of the perpetrator.
The ruling in
the case of US vs. Valdez is still correct. But in the case of People
vs. Garcia, the situation is different. Here, the offender who put the
torch over the house of the offended party, the house being a nipa hut, the
torch which was lighted could easily burn the roof of the nipa hut. But the
torch burned out.
In that case,
you cannot say that the offender believed that he had performed all the acts of
execution. There was not even a single burn of any instrument or agency of the
crime.
The analysis
made by the Court of Appeals is still correct: that they could not demonstrate
a situation where the offender has performed all the acts of execution to bring
about the crime of arson and the situation where he has not yet performed all
the acts of execution. The weight of authority is that the crime of arson cannot
be committed in the frustrated stage. The reason is because we can hardly
determine whether the offender has performed all the acts of execution that
would result in arson, as a consequence, unless a part of the premises has
started to burn. On the other hand, the moment a particle or a molecule of the
premises has blackened, in law, arson is consummated. This is because
consummated arson does not require that the whole of the premises be burned. It
is enough that any part of the premises, no matter how small, bas begun to
burn.
There are also
certain crimes that do not admit of the attempted or frustrated stage, like
physical injuries. One of the known commentators in criminal law has advanced
the view that the crime of physical injuries can be committed in the attempted
as well as the frustrated stage. He explained that by going through the
definition of an attempted and a frustrated felony under Article 6, if a person
was about to give a fist blow to another raises his arms, but before he could throw
a blow, somebody holds that arm, there would be attempted physical injuries.
The reason for this is because the offender was not able to perform all the
acts of execution to bring about physical injuries.
On the other
hand, he also stated that the crime of physical injuries may be committed in
the frustrated stage when the offender
was able to throw the blow but somehow, the offended party was able to sidestep
away from the blow. He reasoned out that the crime would be frustrated because
the offender was able to perform all the acts of execution which would bring
about the felony were it not for a cause independent of the will of the
perpetrator.
The explanation
is academic. You will notice that under the Revised Penal Code, the crime of
physical injuries is penalized on the basis of the gravity of the injuries.
Actually, there is no simple crime of physical injuries. You have to categorize
because there are specific articles that apply whether the physical injuries
are serious, less serious or slight. If you say physical injuries, you do not
know which article to apply. This being so, you could not punish the attempted
or frustrated stage because you do not know what crime of physical injuries was
committed.
1. Is there an attempted slight physical
injuries?
If there is no
result, you do not know. Criminal law cannot stand on any speculation or
ambiguity; otherwise, the presumption of innocence would be sacrificed.
Therefore, the commentator’s opinion cannot stand because you cannot tell what
particular physical injuries was attempted or frustrated unless the consequence
is there. You cannot classify the physical injuries.
2. A threw muriatic acid on the face of B.
The injuries would have resulted in deformity were it not for timely plastic
surgery. After the surgery, B became more handsome. What crime is committed? Is
it attempted, frustrated or consummated?
The crime
committed here is serious physical injuries because of the deformity. When
there is deformity, you disregard the healing duration of the wound or the
medical treatment required by the wound. In order that in law, a deformity can
be said to exist, three factors must concur:
1. The injury should bring about the ugliness;
2. The ugliness must be visible;
3. The ugliness would not disappear through natural healing process.
Along this
concept of deformity in law, the plastic surgery applied to B is beside the
point. In law, what is considered is not the artificial or the scientific
treatment but the natural healing of the injury. So the fact that there was
plastic surgery applied to B does not relieve the offender from the liability
for the physical injuries inflicted. The crime committed is serious physical
injuries. It is consummated. In determining whether a felony is attempted, frustrated
or consummated, you have to consider the manner of committing the felony, the
element of the felony and the nature of the felony itself. There is no real
hard and fast rule.
Elements of the
crime
In the crime of
estafa, the element of damage is essential before the crime could be
consummated. If there is no damage, even if the offender succeeded in carting
away the personal property involved, estafa cannot be considered as
consummated. For the crime of estafa to be consummated, there must be misappropriation
already done, so that there is damage already suffered by the offended party.
If there is no damage yet, the estafa can only be frustrated or attempted.
On the other
hand, if it were a crime of theft, damage or intent to cause damage is not an
element of theft. What is necessary only is intent to gain, not even gain is
important. The mere intent to derive some profit is enough but the thinking
must be complete before a crime of theft shall be consummated. That is why we
made that distinction between theft and estafa.
If the personal
property was received by the offender, this is where you have to decide whether
what was transferred to the offender is juridical possession or physical
possession only. If the offender did not receive the personal property, but
took the same from the possession of the owner without the latter’s consent,
then there is no problem. That cannot be estafa; this is only theft or none at
all.
In estafa, the
offender receives the property; he does not take it. But in receiving the
property, the recipient may be committing theft, not estafa, if what was
transferred to him was only the physical or material possession of the object.
It can only be estafa if what was transferred to him is not only material or
physical possession but juridical possession as well.
When you are
discussing estafa, do not talk about intent to gain. In the same manner that
when you are discussing the crime of theft, do not talk of damage.
The crime of
theft is the one commonly given under Article 6. This is so because the concept
of theft under the Revised Penal Code differs from the concept of larceny under
American common law. Under American common law, the crime of larceny which is
equivalent to out crime of theft here requires that the offender must be able
to carry away or transport the thing being stolen. Without that carrying away,
the larceny cannot be consummated.
In our concept
of theft, the offender need not move an inch from where he was. It is not a
matter of carrying away. It is a matter of whether he has already acquired
complete control of the personal property involved. That complete control
simply means that the offender has already supplanted his will from the will of
the possessor or owner of the personal property involved, such that he could
exercise his own control over the thing.
Illustration:
I placed a
wallet on a table inside a room. A stranger comes inside the room, gets the
wallet and puts it in his pocket. I suddenly started searching him and I found
the wallet inside his pocket. The crime of theft is already consummated because
he already acquired complete control of my wallet. This is so true when he
removed the wallet from the confines of the table. He can exercise his will
over the wallet already, he can drop this on the floor, etc. But as long as the
wallet remains on the table, the theft is not yet consummated; there can only
be attempted or frustrated theft. If he has started lifting the wallet, it is
frustrated. If he is in the act of trying to take the wallet or place it under,
attempted.
“Taking” in the
concept of theft, simply means exercising control over the thing.
If instead of
the wallet, the man who entered the room pretended to carry the table out of
the room, and the wallet is there. While taking the table out of the room, I
apprehended him. It turned out that he is not authorized at all and is
interested only in the wallet, not the table. The crime is not yet consummated.
It is only frustrated because as far as the table is concerned, it is the confines
of this room that is the container. As long as he has not taken this table out
of the four walls of this room, the taking is not complete.
A man entered a
room and found a chest on the table. He opened it and found some valuables
inside. He took the valuables, put them in his pocket and was arrested. In this
case, theft is consummated.
But if he does
not take the valuables but lifts the entire chest, and before he could leave
the room, he was apprehended, there is frustrated theft.
If the thing is
stolen from a compound or from a room, as long as the object has not been
brought out of that room, or from the perimeter of the compound, the crime is
only frustrated. This is the confusion raised in the case of US vs. Dino compared
with People vs. Espiritu and People vs. Adio.
In US vs.
Dino, the accused loaded boxes of rifles on their truck. When they were on
their way out of the South
Harbor , they were checked
at the checkpoint, so they were not able to leave the compound. It was held
that what was committed was frustrated theft.
In People
vs. Espiritu, the accused were on their way out of the supply house when
they were apprehended by the military police who found them secreting some
hospital linen. It was held that what was committed was consummated theft.
The emphasis,
which was erroneously laid in some commentaries, is that, in both cases, the
offenders were not liable to pass the checkpoint. But why is it that in one, it
is frustrated and in the other, it is consummated?
In the case of US
vs. Dino, the boxes of rifle were stocked inside the compound of the South Harbor .
As far as the boxes of rifle are concerned, it is the perimeter of the compound
that is the container. As long as they were not able to bring these boxes of
rifle out of the compound, the taking is not complete. On the other hand, in
the case of People vs. Espiritu, what were taken were hospital linens.
These were taken from a warehouse. Hospital linens were taken from the boxes
that were diffused or destroyed and brought out of the hospital. From the
moment they took it out of the boxes where the owner or the possessor had
placed it, the control is complete. You do not have to go out of the compound
to complete the taking or the control.
This is very
decisive in the problem because in most problems given in the bar, the
offender, after having taken the object out of the container changed his mind
and returned it. Is he criminally liable? Do not make a mistake by saying that
there is desistance. If the crime is one of theft, the moment he brought it
out, it was consummated. The return of the thing cannot be desistance because
in criminal law, desistance is true only in the attempted stage. You cannot
talk of desistance anymore when it is already in the consummated stage. If the
offender has already acquired complete control of what he intended to take, the
fact that he changed his mind and returned the same will no longer affect his
criminal liability. It will only affect the civil liability of the crime
because he will no longer be required to pay the object. As far as the crime
committed is concerned, the offender is criminally liable and the crime is
consummated theft.
Illustration:
A and B are
neighbors. One evening, A entered the yard of B and opened the chicken coop where
B keeps his fighting cocks. He discovered that the fighting cocks were not
physically fit for cockfighting so he returned it. The crime is consummated
theft. The will of the owner is to keep the fighting cock inside the chicken
coop. When the offender succeeded in bringing the coop, it is clear that his
will is completely governed or superseded the will of the owner to keep such
cock inside the chicken coop. Hence, the crime was already consummated, and
being consummated, the return of the owner’s property is not desistance
anymore. The offender is criminally liable but he will not be civilly liable
but he will not be civilly liable because the object was returned.
When the
receptacle is locked or sealed, and the offender broke the same, in lieu of theft,
the crime is robbery with force upon things. However, that the receptacle is
locked or sealed has nothing to do with the stage of the commission of the
crime. It refers only to whether it is theft or robbery with force upon things.
Nature of the crime
itself
In crimes
involving the taking of human life—parricide, homicide, and murder—in the
definition of the frustrated stage, it is indispensable that the victim be
mortally wounded. Under the definition of the frustrated stage, to consider the
offender as having performed all the acts of execution, the acts already done
by him must produce or be capable of producing a felony as a consequence. The
general rule is that there must be a fatal injury inflicted, because it is only
then that death will follow.
If the wound is
not mortal, the crime is only attempted. The reason is that the wound inflicted
is not capable of bringing about the desired felony of parricide, murder or
homicide as a consequence; it cannot be said that the offender has performed all
the acts of execution which would produce parricide, homicide or murder as a
result.
An exception to
the general rule is the so-called subjective phase. The Supreme Court has
decided cases which applied the subjective standard that when the offender himself
believed that he had performed all the acts of execution, even though no mortal
wound was inflicted, the act is already in the frustrated stage.
CONSPIRACY AND
PROPOSAL TO COMMIT A FELONY
Two ways for
conspiracy to exist:
1. There is an agreement.
2. The participants acted in concert or simultaneously which is indicative
of a meeting of the minds towards a common criminal goal or criminal objective.
When several offenders act in a synchronized. Coordinated manner, the fact that
their acts complimented each other is indicative of the meeting of the minds.
There is an implied agreement.
Two kinds of
conspiracy:
1. Conspiracy as a crime; and
2. Conspiracy as a manner of incurring criminal liability.
When conspiracy
itself as a crime, no overt act is necessary to bring about the criminal
liability. The mere conspiracy is the crime itself. This is
only true when the law expressly punishes the mere conspiracy; otherwise, the
conspiracy does not bring about the commission of the crime because conspiracy
is not an overt act but a mere preparatory act. Treason, rebellion, sedition
and coup d’ etat are the only crimes where the conspiracy and proposal to
commit them are punishable.
There is no
crime committed. Proposal to commit sedition is not a crime. But if Union B
accepts the proposal, there will be conspiracy to commit sedition which is a
crime under the Revised Penal Code.
When the
conspiracy is only a basis of incurring criminal liability, there must be an
overt act done before the co-conspirators become criminally liable.
When the
conspiracy itself is a crime, this cannot be inferred or deduced because there
is no overt act. All that there is is the agreement. On the other hand, if the
co-conspirator or any of them would execute an overt act, the crime would no
longer be the conspiracy but the overt act itself.
Illustration:
A, B, C and D
came to an agreement to commit rebellion. Their agreement was to bring about
the rebellion on a certain date. Even if none of them has performed the act of
rebellion, there is already criminal liability arising from the conspiracy to
commit the rebellion. But if anyone of them has committed the overt act of
rebellion, the crime of all is no longer conspiracy but rebellion itself. This
subsists even though the other co-conspirator does not know that one of them
had already done the act of rebellion.
This legal
consequence is not true if the conspiracy is not a crime. If the conspiracy is
only a basis of criminal liability, none of the co-conspirators would be
liable, unless there is an overt act. So, for long as anyone shall desist
before an overt act in furtherance of the crime was committed, such a
desistance would negate criminal liability.
Illustration:
Three persons
plan to rob a bank. For as long as none of the conspirators has committed an
overt act, there is no crime yet. But when one of them commits any overt act,
all of them shall be held liable, unless a co-conspirator was absent from the
scene of the crime or he showed up, but he tried to prevent the commission of
the crime.
As a general
rule, if there has been a conspiracy to commit a crime in a particular place,
anyone who did not appear shall be presumed to have desisted. The exception to
this is if such person who did not appear was the mastermind.
We have to
observe the distinction between the two because conspiracy as a crime, must
have a clear and convincing evidence of its existence. Ever crime must be
proved beyond reasonable doubt.
When the
conspiracy is just a basis of incurring criminal liability, however, the same
may be deduced or inferred from the acts of several offenders in carrying out
the commission of the crime. The existence of a conspiracy may be reasonably
inferred from the acts of the offenders when such acts disclose or show a
common pursuit of the criminal objective. This was the ruling in People vs.
Pinto, 204 SCRA 9.
Although
conspiracy is defined as two or more persons coming to an agreement regarding
the commission of a felony and deciding to commit it, the word “person” here
should not be understood to require a meeting of the co-conspirator regarding
the commission of the felony. A conspiracy of the second kind can be inferred
or deduced even though they have not met as long as they acted in concert or
simultaneously, indicative of a meeting of the minds toward a common goal or
objective.
Conspiracy is a
matter of substance which must be alleged in the information, otherwise, the
court will not consider the same.
In People
vs. Laurio, 200 SCRA 489, it was held that it must be established by
positive and conclusive evidence, not by conjectures or speculations.
In Taer vs.
CA, 186 SCRA 5980, it was held that mere knowledge, acquiescence to, or
approval of the act, without cooperation at least, agreement to cooperate, is
not enough to constitute a conspiracy. There must be an intentional
participation in the crime with a view to further the common felonious
objective.
When several
persons who do not know each other simultaneously attack the victim, the act of
one is the act of all, regardless of the degree of injury inflicted by any one
of them. All will be liable for the consequences. A conspiracy is possible even
when participants are not known to each other. Do not think that participants
are always known to each other.
Illustrations:
A thought of
having her husband killed because the latter was maltreating her. She hired
some persons to kill him and pointed at her husband. The goons got hold of her
husband and started mauling him. The wife took pity and shouted for them to
stop but the goons continued. The wife ran away. The wife was prosecuted for
parricide. But the Supreme Court said that there was desistance so she is not
criminally liable.
A law student
resented the fact that his brother was killed by A. He hired B to kill A and
offered him P50,000.00. He disclosed to B that A was being arraigned in the City Hall of Manila and told him to execute the plan
on following day. In the evening of that same day, the law student changed his
mind so he immediately went to the police and told them to dispatch police
officers to prevent B from committing the crime. Unfortunately, the police were
caught in traffic causing their delay, so that when they reached the place, B
had already killed A. In this case, there was no proposal but a conspiracy.
They have conspired to execute a crime but the crime involved here is murder and
a conspiracy to commit murder is not a crime in itself but merely a basis for
incurring criminal liability. This is just a preparatory act, and his
desistance negates criminal liability.
Proposal is
true only up to the point where the party to whom the proposal was made has not
yet accepted the proposal. Once the proposal was accepted, a conspiracy arises.
Proposal is unilateral, one party makes a proposition to the other; conspiracy
is bilateral, it requires two parties.
As pointed out
earlier, desistance is true only in the attempted stage. Before this stage,
there is only a preparatory stage. Conspiracy is only in the preparatory stage.
The Supreme Court has ruled that one who desisted is not criminally liable. “When a person has set foot to the path of wickedness and brings back his foot to the path of righteousness, the law shall reward him for doing so.”
Where there are
several persons who participated, like in a killing, and they attacked the
victim simultaneously, so much that it cannot be known what participation each
one had, all these participants shall be considered as having acted in
conspiracy and they will be held collectively responsible.
Do not search
for an agreement among the participants. If they acted simultaneously to bring
about their common intention, conspiracy exists. And when conspiracy exists, do
not consider the degree of participation of each conspiracy because the act of
one is the act of all. As a general rule, they have equal responsibility.
There are
several offenders who acted simultaneously. When they fled, a victim was found
dead. Who should be liable for the killing if who actually killed the victim is
not known?
There is
collective responsibility here. Without the principle of conspiracy, nobody
would be prosecuted; hence, there is the rule on collective responsibility
since it cannot be ascertained who actually killed the victim.
There is
conspiracy when the offenders acted simultaneously pursuing a common criminal
design; thus, acting out a common criminal intent.
Illustration:
A, B and C have
been courting the same lady for several years. On several occasions, they even
visited the lady on intervening hours. Because of this, A, B and C became
hostile with one another. One day, D invited the young lady and she accepted
the invitation. Eventually, the young lady agreed to marry D. When A, B and C
learned about this, they all stood up to leave the house of the young lady
feeling disappointed. When A looked back at the young lady with D, he saw D laughing
menacingly. At that instance, A stabbed D. C and B followed. In this case, it
was held that conspiracy was present.
The common
notion is that when there is conspiracy involved, the participants are punished
as principals. This notion is no longer absolute. In the case of People vs.
Nierra, the Supreme Court ruled that even though there was conspiracy, if a
co-conspirator merely cooperated in the commission of the crime with
insignificant or minimal acts, such that even without his cooperation, the crime
could be carried out as well, such co-conspirator should be punished as an
accomplice only. The reason given is that penal laws always favor a milder form
of responsibility upon and offender. So it is no longer accurate to think that
when there is a conspiracy, all are principals.
Notwithstanding
that there is conspiracy, a co-conspirator may be held liable only as an
accomplice. That means the penalty which shall be imposed upon him is one
degree lower. For example, there was a planned robbery, and the taxi driver was
present during the planning. There, the conspirators told the taxi driver that
they are going to use his taxicab in going to the place of robbery. The taxi
driver agreed but said, “I will bring you there, and after committing the robbery
I will return later.” The taxi driver brought the conspirators where the
robbery would be committed. After the robbery was finished, he took the
conspirators back to his taxi and brought them away. It was held that the taxi
driver was liable only as an accomplice. His cooperation was not really
indispensable. The robbers could have engaged another taxi. The taxi driver did
not really stay during the commission of the robbery. At most, what he only
extended was his cooperation. That is why he was given only that penalty for an
accomplice.
A, B, and C,
under the influence of marijuana, broke into a house because they learned that
the occupants have gone on an excursion. They ransacked the house. A got a
colored TV, B saw a camera and took that, and C found a can of salmon and took
that. In the crime of robbery with force upon things, the penalty is based on
the totality of the value of the personal property taken and not on the
individual property taken by him.
In Siton vs.
CA, it was held that the idea of a conspiracy is incompatible with the idea
of a free for all. There is no definite opponent or definite intent as when a
basketball crowd beats a referee to death.
The prosecution must prove conspiracy by the same quantum of evidence
as the felony charged itself although, proof of previous agreement among the
malefactors to commit the crime is not essential to prove conspiracy. It is not
necessary to show that all the conspirators actually hit and killed the victim;
what is primordial is that all the participants performed specific acts with
such closeness and coordination as to indicate a common purpose or design to
bring out the victim’s death. (People v. Bulan, 2005)
Expressed Conspiracy
Q: Store janitors A & B planned to kill their employer C at midnight and take the money kept in
the cash register. A & B together drew the sketch of the store, where they
knew C would be sleeping, and planned the sequence of their attack. Shortly
before midnight , A & B
were ready to carry out the plan. When A was about to lift C’s mosquito net to
thrust the dagger, a police car with sirens blaring passed by. Scared, B ran
outside the store and fled, while A went on to stab C to death, put the money
in the bag and ran outside to look for B. The latter was nowhere in sight.
Unknown to him, B already left the place. What was the participation and
corresponding criminal liability of each, if any?
A(Suggested):
There was an expressed conspiracy between A and B to kill C and take his money.
The planned killing and taking of the money appears to be intimately related as
component crimes, a special complex crime of robbery and homicide. The
conspiracy being expressed, both are bound as co-conspirators after they have
planned and agreed on the sequence of attack prior to the commission of the
crime. In conspiracy, the act of one is the act of all.
A(Alternative):
Only A is liable for robbery with homicide. B spontaneously desisted before all
acts of execution were performed. Conspiracy to rob and kill is not per se
punishable.
Implied
Conspiracy
In PP vs
Pangilinan, it was reiterated that conspiracy need not be direct but may be
inferred from the conduct of the parties, their joint purpose, community of
interest and in the mode and manner of commission of the offense.
Q:
State the concept of “implied conspiracy” and give its legal effects
A: An “implied conspiracy” is one which is only inferred or deduced
from the manner the participants in the commission of the crime carried out its
execution. Where the offenders acted in concert in the commission of the crime,
meaning their acts are coordinated or synchronized in a way indicative of a
common criminal objective, they are deemed acting in conspiracy and their
criminal liability shall be collective.
The legal effects of implied conspiracy are:
1. Not all those present at the crime scene will be considered
conspirators;
2. Only those who participated in the criminal acts during the
commission of the crime will be considered co-conspirators;
3. Mere
acquiescence to or approval of the commission of the crime, without any act of
criminal participation, shall not render one criminally liable as
co-conspirator.
Composite crimes
Composite
crimes are crimes which, in substance, consist of more than one crime but in
the eyes of the law, there is only one crime. For example, the crimes of
robbery with homicide, robbery with rape, robbery with physical injuries.
In case the
crime committed is a composite crime, the conspirator will be liable for all
the acts committed during the commission of the crime agreed upon. This is
because, in the eyes of the law, all those acts done in pursuance of the crime
agreed upon are acts which constitute a single crime.
Illustrations:
A, B, and C
decided to commit robbery in the house of D. Pursuant to their agreement, A
would ransack the second floor, B was to wait outside, and C would stay on the
first floor. Unknown to B and C, A raped a girl upstairs. All of them will be
liable for robbery with rape. The crime committed is robbery with rape, which
is not a complex crime, but an indivisible felony under the Article 294 of the
Revised Penal Code. Even if B and C did not know that rape was being committed
and they agreed only and conspired to rob, yet rape was part of robbery. Rape can
not be separated from robbery.
A, B, and C
agreed to rob the house of D. It was agreed that A would go to the second
floor, B would stay in the first floor, and C stands guard outside. All went to
their designated areas in pursuit of the plan. While A was ransacking the
second floor, the owner was awakened. A killed him. A, B, and C will be liable
for robbery with homicide. This is because, it is well settled that any killing
taking place while robbery is being committed shall be treated as a single indivisible
offense.
As a general
rule, when there is conspiracy, the rule is that the act of one is the act of
all. This principle applies only to the crime agreed upon.
The exception
is if any of the co-conspirator would commit a crime not agreed upon. This
happens when the crime agreed upon and the crime committed by one of the
co-conspirators are distinct crimes.
Exception to
the exception: In acts constituting a single indivisible offense, even though
the co-conspirator performed different acts bringing about the composite crime,
all will be liable for such crime. They can only evade responsibility for any
other crime outside of that agreed upon if it is proved that the particular
conspirator had tried to prevent the commission of such other act.
The rule would
be different if the crime committed was not a composite crime.
Illustration:
A, B, and C
agreed to kill D. When they saw the opportunity, A, B, and C killed D and after
that, A and B ran into different directions. C inspected the pocket of the
victim and found that the victim was wearing a ring—a diamond ring—and he took
it. The crimes committed are homicide and theft. As far as the homicide is
concerned, A, B, and C are liable because that was agreed upon and theft was
not an integral part of homicide. This is a distinct crime so the rule will not
apply because it was not the crime agreed upon. Insofar as the crime of theft
is concerned, C will be the only one liable. So C will be liable for homicide
and theft.
CLASSIFICATION OF FELONIES
This question
was asked in the bar examination: How do you classify felonies and how are
felonies classified?
What the
examiner had in mind was Articles 3, 6 and 9. Do not write the classification
of felonies under Book 2 of the Revised Penal Code. That was not what the
examiner had in mind because the question does not require the candidate to
classify but also to define. Therefore, the examiner was after the
classifications under Articles 3, 6 and 9.
Felonies are
classified as follows:
1. According to the manner of their commission
Under Article 3, they are classified as, intentional felonies or those
committed with deliberate intent; and culpable felonies or those resulting from
negligence, reckless imprudence, lack of foresight or lack of skill.
2. According to the stages of their execution
Under Article 6, felonies are classified as attempted felony when the
offender commences the commission of a felony directly by overt acts, and does
not perform all the acts of execution which should produce the felony by reason
of some cause or accident other than his own spontaneous desistance; frustrated
felony when the offender commences the
commission of a felony as a consequence but which would produce the felony as a
consequence but which nevertheless do not produce the felony by reason of
causes independent of the will of the perpetrator; and consummated felony when
all the elements necessary for its execution are present.
3. According to their gravity
Under Article 9, felonies are classified as grave felonies or those to
which attaches the capital punishment of penalties which in any of their
periods are afflictive; less grave felonies or those to which the law punishes
with penalties which in their maximum period was correctional; and light
felonies or those infractions of law for the commission of which the penalty is
arresto menor.
Why is it
necessary to determine whether the crime is grave, less grave or light?
To determine
whether these felonies can be complexed or not, and to determine the prescription
of the crime and the prescription of the penalty. In other words, these are
felonies classified according to their gravity, stages and the penalty attached
to them. Take note that when the Revised Penal Code speaks of grave and less
grave felonies, the definition makes a reference specifically to Article 25 of
the Revised Penal Code. Do not omit the phrase “In accordance with Article 25”
because there is also a classification of penalties under Article 26 that was
not applied.
If the penalty
is a fine and exactly P200.00, it is only considered a light felony under
Article 9.
If the fine is
imposed as an alternative penalty or as a single penalty, the fine of P200.00
is considered a correctional penalty under Article 26.
If the penalty
is exactly P200.00, apply Article 26. It is considered as a correctional
penalty and it prescribes in 10 years. If the offender is apprehended at any
time within ten years, he can be made to suffer the fine.
This
classification of felony according to gravity is important with respect to the
question of prescription of crimes.
In the case of
light felonies, crimes prescribe in two months. After two months, the state
loses the right to prosecute unless the running period is suspended. If the
offender escapes while in detention after he has been loose, if there was
already judgment that was passed, it can be promulgated even if absent under
the New Rules on Criminal Procedure. If the crime is correctional, it
prescribes in ten years, except arresto mayor, which prescribes in five years.
SUPPLETORY
APPLICATION OF THE REVISED PENAL CODE
Article 10 is
the consequence of the legal requirement that you have to distinguish those
punished under special laws and those under the Revised Penal Code. With regard
to Article 10, observe the distinction.
In Article 10,
there is a reservation “provision of the Revised Penal Code may be applied
suppletorily to special laws.” You will only
apply the provisions of the Revised Penal Code as a supplement to the special
law, or simply correlate the violated special law, if needed to avoid an
injustice. If no justice would result, do not give suppletory application of
the Revised Penal Code to that of the special law.
For example, a special law punishes a certain act as a crime. The
special law is silent as to the civil liability of one who violates the same.
Here is a person who violated the special law and he was prosecuted. His
violation caused damage or injury to a private party. May the court pronounce
that he is civilly liable to the offended party, considering that the special
law is silent on this point? Yes, because Article 100 of the Revised Penal Code
may be given suppletory application to prevent an injustice from being done to
the offended party. Article 100 states that every person criminally liable for
a felony is also civilly liable. That article shall be applied suppletorily to
avoid an injustice that would be caused to the private offended party, if he
would not be indemnified for the damages or injuries sustained by him.
In People
vs. Rodriguez, it was held that the use of arms is an element of rebellion,
so a rebel cannot be further prosecuted for possession of firearms. A violation
of a special law can never absorb a crime punishable under the Revised Penal
Code, because violations of the Revised Penal Code are more serious than a
violation of a special law. But a crime in the Revised Penal Code can absorb a
crime punishable by a special law if it is a necessary ingredient of the crime
in the Revised Penal Code.
In the crime of
sedition, the use of firearms is not an ingredient of the crime. Hence, two
prosecutions can be had: 1. sedition; and 2. illegal possession of firearms.
But do not
think that when a crime is punished outside of the Revised Penal Code, it is
already a special law. For example, the crime of cattle-rustling is not a mala
prohibitum but a modification of the crime of theft of large cattle. So
Presidential Decree No. 533, punishing cattle-rustling, is not a special law.
It can absorb the crime of murder. If in the course of cattle rustling, murder
was committed, the offender cannot be prosecuted for murder. Murder would be a
qualifying circumstance in the crime of qualified cattle rustling. This was the
ruling in People vs. Martinada.
The amendments
of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) by Republic
Act NO. 7659, which adopted the scale of penalties in the Revised Penal Code,
means that mitigating and aggravating circumstances can now be considered in
imposing penalties. Presidential Decree No. 6425 does not expressly prohibit
the suppletory application of the Revised Penal Code. The stages of the
commission of felonies will also apply since suppletory application is now
allowed.
CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY
There are five
circumstances affecting criminal liability:
1. Justifying circumstances; Art. 11 (6)
2. Exempting circumstances; Art. 12 (7)
3. Mitigating circumstances; Art. 13 (10)
4. Aggravating circumstances; Art. 14 (21)
5. Alternative circumstances. Art. 15 (3)
There are
others which are found elsewhere in the provisions of the Revised Penal Code:
1. Absolutory cause; and
2. Extenuating circumstances.
In justifying
and exempting circumstances, there is no criminal liability. When an accused
invokes them, he in effect admits the commission of a crime but tries to avoid
the liability thereof. The burden is upon him to establish beyond reasonable
doubt the required conditions to justify of exempt his acts from criminal
liability. What is shifted is only the burden of evidence, not the burden of
proof.
Justifying
circumstances contemplate intentional acts and, hence, are incompatible with
dolo. Exempting circumstances may be invoked in culpable felonies.
Absolutory cause
The effect of
this is to absolve the offender from criminal liability, although not from
civil liability. It has the same effect as an exempting circumstance, but do
not call it as such in order not to confuse it with the circumstances under
Article 12.
Article 20
provides that 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 of accessories who profited
themselves by assisting the offender to profit by the effects of the crime.
Then, Article
89 provides how criminal liability is extinguished:
·
Death of the convict as to the personal penalties,
and as to pecuniary penalties, liability therefore is extinguished is death
occurs before final judgment;
·
Service of the sentence;
·
Amnesty;
·
Absolute pardon;
·
Prescription of the crime;
·
Prescription of the penalty; and
·
Marriage of the offended woman as provided in
Article 344.
Under Article
247, a legally married person who kills or inflicts physical injuries upon his
or her spouse whom he surprised having sexual intercourse with his or her
paramour or mistress in not criminally liable.
Under Article
219, discovering secrets through seizure of correspondence of the ward by their
guardian is not penalized.
Under Article
332, in the case of theft, swindling and malicious mischief, there is no
criminal liability but only civil liability, when the offender and the offended
party are related as spouse, ascendant, descendant, brother and sister-in-law
living together or where in case the widowed spouse and the property involved
is that of the deceased spouse, before such property had passed on to the
possession of third parties.
Under Article
344, in cases of seduction, abduction, acts of lasciviousness, and rape, the
marriage of the offended party shall extinguish the criminal action.
Absolutory
cause has the effect of an exempting circumstance and they are predicated on
lack of voluntariness like instigation. Instigation is associated with criminal
intent. Do not consider culpa in connection with instigation. If the crime is
culpable, do not talk of instigation. In instigation, the crime is committed
with dolo. It is confused with entrapment.
Entrapment is
not an absolutory cause. Entrapment does not exempt the offender or mitigate
his criminal liability. But instigation absolves the offender from criminal
liability because in instigation, the offender simply acts as a tool of the law
enforcers and, therefore, he is acting without criminal intent because without
the instigation, he would not have done the criminal act which he did upon
instigation of the law enforcers.
Difference
between instigation and entrapment
In instigation,
the criminal plan or design exists in the mind of the law enforcer with whom
the person instigated cooperated so it is said that the person instigated is
acting only as a mere instrument or tool of the law enforcer in the performance
of his duties.
On the other
hand, in entrapment, a criminal design is already in the mind of the person
entrapped. It did not emanate from the mind of the law enforcer entrapping him.
Entrapment involves only ways and means which are laid down or resorted to
facilitate the apprehension of the culprit.
Illustrations:
An agent of the
narcotics command had been tipped off that a certain house is being used as an
opium den by prominent members of the society. The law enforcers cannot
themselves penetrate the house because they do not belong to that circle so
what they did was to convince a prominent member of society to visit such house
to find out what was really happening inside and that so many cars were
congregating there. The law enforcers told the undercover man that if he is offered
a cigarette, then he should try it to find out whether it is loaded with
dangerous drugs or not. This fellow went to the place and mingled there. The
time came when he was offered a cigarette and he tried it to see if the
cigarette would affect him. Unfortunately, the raid was conducted and he was
among those prosecuted for violation of the Dangerous Drugs Act. Is he
criminally liable? No. He was only there upon instigation of the law enforcers.
On his own, he would not be there. The reason he is there is because he
cooperated with the law enforcers. There is absence of criminal intent. If the
law enforcers were able to enter the house and mingle there, nobody would offer
him a cigarette because he is unknown. When he saw somebody, he pleaded to spare
him a cigarette so this fellow handed him the cigarette he was smoking and
found out that it was loaded with a dangerous drug. He arrested the fellow.
Defense was that he would not give a cigarette if he was not asked. Is he
criminally liable? Yes. This is a case of entrapment and not instigation. Even
if the law enforcer did not ask for a cigarette, the offender was already
committing a crime. The law enforcer ascertained if it is a violation of the
Dangerous Drugs Act. The means employed by the law enforcer did not make the
accused commit a crime. Entrapment is not an absolutory cause because in
entrapment, the offender is already committing a crime.
In another
instance, a law enforcer pretended to be a buyer of marijuana. He approached a
person suspected to be a pusher and prevailed upon his person to sell him two
kilos of dried marijuana leaves and this fellow gave him and delivered them. He
apprehended the fellow. Defense is instigation, because he would not have come
out for the marijuana leaves if the law enforcer had not instigated him. It is
a case of entrapment because the fellow is already committing a crime from the
mere fact that he his possessing marijuana. Even without selling, there is a
crime committed by him: illegal possession of dangerous drugs. How can one sell
marijuana if he is not in possession thereof? The law enforcer is only
ascertaining if this fellow is selling marijuana leaves, so this is entrapment,
not instigation. Selling is not necessary to commit the crime, mere possession is
already a crime.
A fellow wants
to make money. He was approached by a law enforcer and was asked if he wanted
to deliver a package to a certain person. When that fellow was delivering the
package, he was apprehended. Is he criminally liable? This is a case of
instigation; he is not committing a crime.
A policeman
suspected a fellow was selling marijuana. The law enforcer asked him, “Are you
selling that? How much? Could you bring that to the other fellow there?” When
he brought it there, the person, who happens to be a law enforcer, to whom the
package was brought to found it to be marijuana. Even without bringing, he is
already possessing the marijuana. The fact that he was appointed to another
person to find out its contents, is to discover whether the crime is committed.
This is entrapment.
The element
which makes instigation an absolutory cause is the lack of criminal intent as
an element of voluntariness.
If the
instigator is a law enforcer, the person instigated cannot be criminally
liable, because it is the law enforcer who planted that criminal mind in him to
commit the crime, without which he would not have been a criminal. If the
instigator is not a law enforcer, both will be criminally liable, you cannot
have a case of instigation. In instigation, the private citizen upon
instigation of the law enforcer incriminates himself. It would be contrary to
public policy to prosecute a citizen who only cooperated with the law enforcer.
The private citizen believes that he is a law enforcer and that is why when the
law enforcer tells him, he believes that it is a civil duty to cooperate.
If the person
instigated does not know that the person is instigating him is a law enforcer
or he knows him to be not a law enforcer, this is not a case of instigation.
This is a case of inducement, both will be criminally liable.
In entrapment,
the person entrapped should not know that the person trying to entrap him was a
law enforcer. The idea is incompatible with each other because in entrapment,
the person entrapped is actually committing a crime. The officer who entrapped
him only lays down ways and means to have evidence of the commission of the
crime, but even without those ways and means, the person entrapped is actually
engaged in a violation of the law.
Instigation
absolves the person instigated from criminal liability. This is based on the
rule that a person cannot be a criminal if his mind is not criminal. On the
other hand, entrapment is not an absolutory cause. It is not even mitigating.
In case of
somnambulism or one who acts while sleeping, the person involved is definitely
acting without freedom and without sufficient intelligence, because he is
asleep. He is moving like a robot, unaware of what he is doing. So the element
of voluntariness which is necessary in dolo and culpa is not present.
Somnambulism is an absolutory cause. If the element of voluntariness is absent,
there is no criminal liability, although there is civil liability, and if the
circumstance is not among those enumerated in Article 12, refer to the
circumstance as an absolutory cause.
Mistake of fact
is not an absolutory cause. The offender is acting without criminal intent. So
in mistake of fact, it is necessary that had the facts been true as the accused
believed them to be, this act is justified. If not, there is criminal
liability, because there is no mistake of fact anymore. The offender must
believe he is performing a lawful act.
Q: Distinguish
fully between entrapment and instigation. Exemplify each.
A: In entrapment, the criminal design originates
from and is already in the mind of the lawbreaker even before entrapment. The
law enforcers merely resort to ways and means for the purpose of capturing the
lawbreaker in flagrante delicto. This circumstance is no bar to the prosecution
and conviction of the lawbreaker.
Example of
entrapment - - A, a government anti-narcotics agent, acted as a poseur buyer of
shabu and negotiated with B, a suspected drug pusher who is unaware that A is a
police officer. A then paid B in marked money and the latter handed over a
sachet of shabu. Upon signal, the cops closed in on B.
In instigation,
the idea and design to bring about the commission of the crime originated in
the mind of the law enforcers. They induce or incite a person not otherwise
minded to commit a crime and would not otherwise commit it to do so. This
absolved the accused from liability.
Example of
instigation - - A, leader of an anti-narcotics team, approached and persuaded B
to act as a buyer of shabu and transact with C, a suspected pusher. B was given
marked money to pay C for a sachet of shabu. After the sale was consummated,
the cops closed in and arrested both B and C.
Extenuating
circumstances
The effect of
this is to mitigate the criminal liability of the offender. In other words,
this has the same effect as mitigating circumstances, only you do not call it
mitigating because this is not found in Article 13.
Illustrations:
An unwed mother
killed her child in order to conceal a dishonor. The concealment of dishonor is
an extenuating circumstance insofar as the unwed mother or the maternal
grandparents are concerned, but not insofar as the father of the child is
concerned. Mother killing her new born child to conceal her dishonor, penalty
is lowered by two degrees. Since there is a material lowering of the penalty or
mitigating the penalty, this is an extenuating circumstance.
The concealment
of honor by mother in the crime of infanticide is an extenuating circumstance
but not in the case of parricide when the age of the victim is three days old
and above.
In the crime of
adultery on the part of a married woman abandoned by her husband, at the time
she was abandoned by her husband, is it necessary for her to seek the company
of another man. Abandonment by the husband does not justify the act of the
woman. It only extenuates or reduces criminal liability. When the effect of the
circumstance is to lower the penalty there is an extenuating circumstance.
A kleptomaniac
is one who cannot resist the temptation of stealing things which appeal to his
desire. This is not exempting. One who is a kleptomaniac and who would steal
objects of his desire is criminally liable. But he would be given the benefit
of a mitigating circumstance analogous to paragraph 9 of Article 13, that of
suffering from an illness which diminishes the exercise of his will poser
without, however, depriving him of the consciousness of his act. So this is an
extenuating circumstance. The effect is to mitigate the criminal liability.
Distinctions
between justifying circumstances and exempting circumstances
In justifying
circumstances—
1. The circumstance affects the act, not he actor;
2. The act complained of is considered to have been done within the bounds
of law; hence, it is legitimate and lawful in the eyes of the law;
3. Since the act is considered lawful, there is no crime, and because
there is no crime, there is no criminal;
4. Since there is no crime or criminal, there is no criminal liability as
well as civil liability.
In exempting circumstances—
1. The circumstances affect the actor, not the act;
2. The act complained of is actually wrongful, but the actor acted without
voluntariness. He is a mere tool or instrument of the crime;
3. Since the act complained of is actually wrongful, there is a crime. But
because the actor acted without voluntariness, there is absence of dolo or
culpa. There is no criminal;
4. Since there is a crime committed but there is no criminal, there is
civil liability for the wrong done. But there is no criminal liability.
However, in paragraphs 4 and 7 of Article 12, there is neither criminal nor
civil liability. (Accident and insuperable cause)
When you apply
for justifying or exempting circumstances, it is confession and avoidance and
burden of proof shifts to the accused and he can no longer rely on the weakness
of the prosecution’s evidence.
Justifying
circumstances
Since the
justifying circumstances are in the nature of defensive acts, there must be
always unlawful aggression. The reasonableness of the means employed depends on
the gravity of the aggression. If the unlawful aggressor was killed, this can
only be justified if it was done to save the life of the person defending or
the person being defended. The equation is “life was taken to save life.”
Self
Defense
In justifying circumstances, the most important is self-defense. When
this is given in the bar, it is the element of unlawful aggression that is in
issue. Never confuse unlawful aggression with provocation. Mere provocation is
not enough.
Illustration:
A and B are
long standing enemies. Because of their continuous quarrel over the boundaries
of their adjoining properties, when A saw B one afternoon, he approached the
latter with a bolo in his hand. When he was about five feet away from B, B
pulled out his revolver and shot A on the chest, killing him. Is B criminally
liable? What crime was committed, if any?
The act of A is
nothing but a provocation. It cannot be characterized as an unlawful aggression
because in criminal law, an unlawful aggression is an attack or a threatened
attack which produces an imminent danger to the life and limb of the one
resorting to self-defense. In the facts of the problem given above, what was
said was that A was holding a bolo. That bolo does not produce any real or imminent
danger unless A raises his arm with the bolo. As long as that arm of A was down
holding the bolo, there is no imminent danger to the life or limb of B.
Therefore, the act of B in shooting A is not justified.
In People
vs. Cueto, 2003, the Court held that self-defense is questionable when
there is FLIGHT, for such is an act of evading the course of justice and
responsibility. It tends to indicate guilt.
It was also
held that the facts constituting treachery are irreconcilable with self-defense
(Sullon v. People, 2005)
In Soplente
v. People (2005), the Court that the determination of whether there is
unlawful aggression for the purposes of self-defense
Defense of
rights is included in the circumstances of defense and so is defense of honor.
In US vs.
Mateo, while a woman was sleeping, her sister and brother-in-law went to
see a movie and came home late that evening. The accused was already asleep.
The brother-in-law came up first while his wife was still in the staircase. He
started feeling through the dark, and in the process, he awakened the accused.
Believing that her honor was at stake, she got a pair of scissors and stabbed
the man. When the lights were turned on, she realized that she had stabbed her
brother-in-law. The accused claimed as having acted in defense of her honor and
mistake of fact. She said that she believed that her own honor was at stake. It
was held that the whole matter is purely her imagination. Touching the arm
could not produce such danger as would really be imminent to the honor of the
woman.
Apparently,
under the Revised Penal Code, the honor of a woman in respect of her defense is
equated with her virginity.
In US vs.
Jaurigue, it was held that it was not possible to rape the accused because
the whole thing transpired in the church, where there were so many people.
Therefore, her availing of defense of honor is not tenable. She could not
possibly be raped in that place. Defense of honor here is being equated with
one of abuse of chastity of a woman. In this case, the offended party placed
his hand on the thigh of the woman who was then praying. There was already some
sort of aggression but it was not enough to warrant the act resorted to by the
accused in getting a small knife from her bag and thrusting it on the chest of
the offended party.
Do not confuse
unlawful aggression with provocation. What justifies the killing of a supposed
unlawful aggressor is that if the offender did not kill the aggressor, it will
be his own life that will be lost. That will be the situation. If that is not
the situation, even if there was an unlawful aggression that has already begun,
you cannot invoke self-defense.
Illustration:
Two policemen
quarreled inside a police precinct. One shot the other. The other was wounded
on his thigh. The policeman who was wounded on the thigh jumped on the arm of
the fellow who shot him. In the process, they wrestled for possession of the
gun. The policeman who shot the other guy fell on the floor. On that point,
this policeman who was shot at the thigh was already able to get hold of the
revolver. In that position, he started emptying the revolver of the other
policeman who was lying on the floor. In this case, it was held that the
defense of self-defense is not available. The shooting was not justified.
In People
vs. Rodriguez, a woman went into the house of another woman whom she
suspected of having an affair with her husband. She started pouring gasoline on
the house of the woman. Since the woman has children inside the house, she
jumped out to prevent this other woman from pouring gasoline around the house.
The woman who was pouring gasoline had a bolo, so she started hacking the other
woman with it. They grappled with the bolo. At that moment, the one who jumped
out of the house was able to wrest the bolo away and started hacking the other
woman. It was held that the hacking was not justified. Actually, when she
killed the supposed unlawful aggressor, her life and limb were no longer in
imminent danger. That is the focal point.
At the time the accused killed the supposed unlawful aggressor, was her life in danger? If the answer is no, there is no self-defense. But while there may be no justifying circumstance, do not forget the incomplete self-defense. This is a mitigating circumstance under paragraph 1 of Article 13. This mitigating circumstance is either privileged or ordinary. If ordinary, it has the effect of reducing the imposable penalty to the minimum period. But if it is privileged, it has the effect of lowering the penalty by one to two degrees, depending on how the court will regard the absence or presence of conditions to justify the act.
One who invokes self-defense admits responsibility for the killing.
Accordingly, the burden of proof shifts to the accused who must then prove the
justifying circumstance. He must show by clear and convincing evidence that he
indeed acted in self-defense, or in defense of a relative or a stranger. (Cabuslay
v. People, 2005)
Defense
of property rights
This can only
be invoked if the life and limb of the person making the defense is also the
subject of unlawful aggression. Life cannot be equal to property.
Defense
of relatives
This may be availed of if one acts in defense of the person of rights
of one’s spouse, ascendants, descendants, legitimate, natural or adopted
brothers or sisters, or of his relatives by affinity in the same degree and
those by affinity to the fourth degree. The requisites for self-defense must
likewise be present.
Defense
of stranger
If the person
being defended is already a second cousin, you do not invoke defense of a
relative anymore. It will be defense of stranger. This is vital because if the
person making the defense acted out of revenge, resentment or some evil motive
in killing the aggressor, he cannot invoke the justifying circumstance if the
relative defended is already a stranger in the eyes of the law. On the other
hand, if the relative defended is still within the coverage of defense of
relative, even though he acted out of some evil motive, it would still apply. It
is enough that there was unlawful aggression against the relative defended, and
that the person defending did not contribute to the unlawful aggression.
The person
being defended was a relative—a first cousin. But the fellow who killed the
aggressor had some score to settle with the aggressor. Is he entitled to a
justifying circumstance?
Yes. In law,
the condition that a person making the defense did not act out of revenge,
resentment or evil motive is not a requirement in defense of relative. This is
only required in defense of strangers.
Incomplete
self-defense or incomplete justifying circumstance or incomplete exempting
circumstances
When you say
incomplete justifying circumstance, it means that not all the requisites to
justify the act are present or not the requisite to exempt from criminal
liability are present.
How, if at all,
may incomplete self-defense affect the criminal liability of the offender?
If the question
specifically refers to incomplete self-defense, defense of relative or defense
of stranger, you have to qualify your answer.
First, to have
incomplete self-defense, the offended party must be guilty of unlawful
aggression. Without this, there can be no incomplete self-defense, defense of
relative, or defense of stranger.
Second, if only
the element of unlawful aggression is present, the other requisites being
absent, the offender shall be given only the benefit of an ordinary mitigating
circumstance.
Third, if aside
from the element of unlawful aggression another requisite, but not all, are
present, the offender shall be given the benefit of a privileged mitigating
circumstance. In such a case, the imposable penalty shall be reduced by one or
two degrees depending upon how the court regards the importance of the requisites
present. Or absent.
If the question
refers generally to justifying or exempting circumstances, the question should
be, “how many incomplete justifying circumstance can affect criminal liability
of the offender, if at all?”
Make a separate
answer with respect to self-defense, defense of relative or defense of stranger
because in these cases, you always shave to specify the element of unlawful
aggression; otherwise, there would be no incomplete self-defense, defense of
relative or defense of stranger. In general, with respect to other
circumstances, you need only to say this: If less than a majority of the
requisites necessary to justify the act or exempt from criminal liability are
present, the offender shall be entitled to an ordinary mitigating circumstance.
If a majority
of the requisites needed to justify the act or exempt from criminal liability
are present, the offender shall be given the benefit of a privileged mitigating
circumstance. The penalty shall be lowered by one or two degrees. When there
are only two conditions to justify the act or to exempt from criminal
liability, the presence of one shall be regarded as the majority.
Avoidance
of greater evil or injury
To invoke this
justifying circumstance, the evil sought to be avoided must actually exist and
the injury feared must be greater than that done to avoid it. Also, there should be no other practical and less harmful means
of preventing it.
The evil or
injury sought to be avoided must not have been created by the one invoking the
justifying circumstances. For example, A drove his car beyond the speed limit
so much so that when he reached the curve, his vehicle skidded towards a
ravine. He swerved his car towards a house, destroying it and killing the
occupant therein. A cannot be justified because the state of necessity was
brought about by his own felonious act.
Civil liability
referred to here is based not on the act committed but on the benefit derived
from the avoidance of the evil or injury. So the accused will not be civilly liable
if he did not receive any benefit out of such avoidance. On the other hand,
persons who did not participate in the damage or injury would be pro tanto
civilly liable if they derived benefit from the same.
Civil liability
is based on the benefit derived and not on the act, damage or injury caused. It
is wrong to treat this as an exception to the rule that in justifying
circumstances, there is no criminal nor civil liability, on the principle that
“no one should enrich himself at the expense of another.”
Illustration:
A and B are
owners of adjoining lands. A owns the land for planting certain crops. B owns
the land for raising certain goats. C used another land for a vegetable garden.
There was heavy rain and floods. Dam was opened. C drove all the goats of B to
the land of A. The goats rushed to the land to be
saved, but the land
of A was destroyed. The
author of the act is C, but C is not civilly liable because he did not receive
benefits. It was B who was benefited, although he was not the actor. He cannot
claim that it was a fortuitous event. B will answer only to the extent of the
benefit derived by him. If C who drove all of the goats is accused of malicious
mischief, his defense would be that he acted out of a state of necessity. He
will not be civilly liable.
BB and CC, both armed with knives, attacked FT. The
victim’s son, ST, upon seeing the attack, drew his gun but was prevented from
shooting the attackers by AA, who grappled with him for the possession of the
gun. FT died from knife wounds. AA, BB and CC were charged with murder.
In his defense,
AA invoked the justifying circumstance of greater evil or injury, contending
that by preventing ST from shooting BB and CC, he merely avoided a greater
evil.
Will AA’s
defense prosper? Reason briefly.
A: No, AA’s defense will not prosper because obviously there was a
conspiracy among BB, CC and AA, such that the principle that when there is a
conspiracy, the act of one shall be the act of all shall govern. The act of ST,
the victim’s son, appears to be a legitimate defense of relatives; hence
justified as a defense of his father against the unlawful aggression by BB and CC. ST ’s act to
defend his father’s life cannot be regarded as an evil inasmuch as it is, in
the eyes of the law, a lawful act.
What AA did was
to stop a lawful defense, not a greater evil, to allow BB and CC to achieve
their criminal objective of stabbing FT.
Fulfillment
of duty
In the
justifying circumstance of a person having acted out of fulfillment of a duty
and the lawful exercise of a right or office, there are only two conditions:
1. The felony was committed while the offender was in the fulfillment of a
duty or in the lawful exercise of a right or office;
2. The resulting felony is the unavoidable consequence of the due
fulfillment of the duty or the lawful exercise of the right or office.
Invariably,
when you are given a problem on this premise, and the first condition is
present, but the second is not because the offender acted with culpa, the
offender will be entitled to a privileged mitigating circumstance. This is what
you call incomplete justification of fulfillment of duty or incomplete
justification of exercise of a right. In that case, the penalty would be
reduced by one or two degrees.
In People
vs. Oanis and Callanta, the accused Chief of Police and the constabulary
soldier were sent out to arrest a certain Balagtas, supposedly a notorious
bandit. There was an order to kill Balagtas if he would resist. The accused
arrived at the house of a dancer who was supposedly the girlfriend of Balagtas.
When they were there, they saw a certain person who resembled Balagtas in all
his bodily appearance sleeping on a bamboo bed but facing the other direction.
The accused, without going around the house, started firing at the man. They
found out later that the man was not really Balagtas. They tried to invoke the
justifying circumstance of having acted in fulfillment of a duty.
The second
requisite is absent because they acted with negligence. There was nothing that
prevented them from looking around the house and looking at the face of the
fellow who was sleeping. There could not be any danger on their life and limb.
Hence, they were held guilty of the crime of murder because the fellow was
killed when he was sleeping and totally defenseless. However, the Supreme Court
granted them the benefit of incomplete justification of fulfillment of duty and
the penalty was reduced by one or two degrees.
Do not confuse
fulfillment of a duty with self-defense.
Illustration:
A, a policeman,
while waiting for his wife to go home, was suddenly stabbed at the back by B, a
hoodlum, who mistook him for someone else. When A saw B, he drew his revolver
and went after B. After firing a shot in the air, B did not stop so A shot B
who was hit at a vital part of the body. B died. Is the act of A justified?
Yes. The
justifying circumstance of self-defense cannot be invoked because the unlawful
aggression had already ceased by the time A shot B. When the unlawful aggressor
started fleeing, the unlawful aggression ceased. If the person attacked runs
after him, in the eyes of the law, he becomes the unlawful aggressor.
Self-defense cannot be invoked. You apply paragraph 5 on fulfillment of duty.
The offender was not only defending himself but was acting in fulfillment of a
duty, to bring the criminal to the authorities. As long as he was not acting
out of malice when he fired at the fleeing criminal, he cannot be made
criminally liable. However, this is true only if it was the person who stabbed was
the one killed. But if, let us say, the policeman was stabbed and despite the
fact that the aggressor ran into a crowd of people, the policeman still fired
indiscriminately. The policeman would held criminally liable because he acted
with imprudence in firing toward several people where the offender had run. But
although he will be criminally liable, he will be given the benefit of an
incomplete fulfillment of duty.
Obedience to a lawful order
The order must have been issued by a superior for some lawful purpose
and the means used to carry it out must be lawful.
Exempting
circumstances
In exempting
circumstances, the reason for the exemption lies on the involuntariness of the
act—one or some of the ingredients of voluntariness such as criminal intent,
intelligence, or freedom of action on the part of the offender is missing. In
case it is a culpable felony, there is absence of freedom of action or
intelligence, or absence of negligence, imprudence, lack of foresight or lack
of skill.
Imbecility
and Insanity
There is
complete absence of intelligence. The intellectual deficiency is permanent.
There is no lucid interval unlike in insanity. An imbecile is a person whose
mental development is like that of a child between 2 to 7 years of age.
The insanity
that is exempting is limited only to mental aberration or disease of the mind
and must completely impair the intelligence of the accused. Under common law
countries, emotional or spiritual insanity are exempting circumstances unlike
in this jurisdiction because the Revised Administrative Code, as defined is
limited to mental aberration of the mind. This was the ruling in People vs.
Dungo.
In People
vs. Rafanan, the following are the two tests for exemption on the grounds
of insanity:
1. The test of cognition, or whether the accused acted with complete
deprivation of intelligence in committing the said crime;
2. The test of volition, or whether the accused acted in total deprivation
of freedom of will.
Schizophrenia
(dementia praecox) can only be considered a mitigating circumstance
because it does not completely deprive the offender of consciousness of his
acts.
In People vs
Galigao, the defense of insanity, to be tenable, should be based on more
than the non-medical opinion of the defense counsel that his client is insane.
Minority
In exempting
circumstances, the most important issue is how the minority of the offender
affected his criminal liability. It seems that the view of many is that when
the offender is a youthful offender, he must necessarily be confined in a
reformatory. This is wrong. A youthful offender can only be confined in a
reformatory upon order of the court. Under the amendment to Presidential Decree
No. 1179 requires that before a youthful offender may be given the benefit if a
suspension of sentence, there must be an application filed with the court which
should pronounce sentence. Now, however, the suspension is already automatic.
Note that the commitment of the offender in a reformatory is just a consequence
of the suspension of the sentence. If the sentence is not suspended, there is
no commitment in a reformatory. The commitment is in a penitentiary, since
suspension of sentence requires certain conditions:
1. The crime committed should not be punishable by reclusion perpetua or
death penalty;
2. The offender should not have been given the benefit of a suspended
sentence before. This means he is a first-timer;
3. He must be below 18 years old because a youthful offender is one who is
below 18.
Note that the
age of majority has been reduced to 18. There is no more bracket where the
offender is a minor yet no longer entitled to a mitigating circumstance. An
offender below 18 is always entitled to a mitigating or exempting circumstance.
How
does the minority of the offender affect his criminal liability?
1. If the offender is within the bracket of nine years old
exactly or less, he is exempt from criminal liability but not from civil
liability. This type of offenders are absolutely exempt. Even if the offender
nine years or below acted with discernment, this should not be taken against
him because in his age bracket, the exemption is absolute.
2. If over nine but below 15, a distinction has to be made
whether the offender acted with or without discernment. The burden is upon the
prosecution to prove that the offender acted with discernment. It is not for
the minor to prove that he acted without discernment. All that the minor has to
show is that he is within the age bracket. If the prosecution would want to pin
criminal liability on him, it has to prove that the crime was committed with
discernment. Here, if the offender was exempt from criminal liability because
the prosecution was not able to prove that the offender acted with discernment,
he is only civilly liable but he will be committed to the surveillance of his
parents who will be required to report to the court periodically on the
progress or development of the offender.
If the offender is proven to have acted with discernment,
this is where the court may give him the benefit of a suspended sentence. He
may be given the benefit of a suspended sentence under the conditions mentioned
earlier and only if he would file an application therefore.
Suspension
of sentence is now automatic.
3. If at the time the judgment is to be promulgated he is
already above 18, he cannot avail of a suspended sentence. The reason is
because if the sentence were to be suspended, he would be committed in a
reformatory. Since he cannot be committed to a reformatory anymore because he
is not less than 18 years old, he would have to be committed to a penitentiary.
That means promulgation of the sentence shall not be suspended. If the sentence
should not be suspended, although the minor may be qualified, the court will
promulgate the sentence but the minor shall be entitled to the reduction of the
penalty by at least two degrees.
When the offender is over
nine but below 15, the penalty to be imposed is discretionary on the court, but
lowered by at least two degrees.
4. If the offender is 15 years old and above but below 18,
there is no exemption anymore but he is also given the benefit of a suspended
sentence under the conditions stated earlier and if at the time the sentence is
promulgated, he is not yet 18 years old or over yet. If the sentence is
promulgated, the court will impose a penalty one degree lower. This time it is
fixed. It is to be imposed one degree lower and in the proper periods subject
to the rules in Article 64.
Q: A was 2 months below 18 years
of age when he committed the crime. He was charged 3 months later and was 23
years old when he was finally convicted and sentenced. Instead of preparing to
serve a jail term, he sought a suspension of sentence on the ground of being a
juvenile offender. Is he entitled to suspension?
A: No, A is not entitled to a suspension of sentence since
he is no longer a minor at the time of the promulgation of the sentence. He was
already 23 years old. For purposes of suspension of sentence, his age at the
time of promulgation is the determining factor, not the age at the time of
commission of the offense.
Q:
Can juvenile offenders, who are recidivists, validly ask for the suspension of
sentence?
A: YES, so long as the offender is still a minor at the
time of promulgation of sentence. RA 8369 provides that if the minor is found
guilty, the court should promulgate the sentence and ascertain any civil
liability incurred. However, the sentence shall be suspended without need of
application pursuant to PD 603. Under PD 603, suspension of sentence is required
and thereunder it is one of the conditions for suspension of sentence that the
convict is a first time offender. RA 8369 already displaced such.
Damnum
absque injuria
Under Article
12, paragraph 4, the offender is exempt not only from criminal but also from
civil liability. This paragraph embodies the Latin maxim “damnum absque
injuria.”
Illustration:
A person who is
driving his car within the speed limit, while considering the condition of the
traffic and the pedestrians at that time, tripped on a stone with one of his
car tires. The stone flew hitting a pedestrian on the head. The pedestrian
suffered profuse bleeding. What is the liability of the driver?
There is no
civil liability under paragraph 4 of Article 12. Although this is just an
exempting circumstance, where generally there is civil liability, yet, in
paragraph 4 of Article 12, there is no civil liability as well as criminal
liability. The driver is not under obligation to defray the medical expenses.
However,
correlate paragraph 4 of Article 12 with the second paragraph of Article 275.
Article 275 gives you the crime of abandoning the victim of one’s own accident.
It is a crime. Here, the accident referred to in paragraph 2 of Article 275 is
in the concept of paragraph 4 of Article 12. This means that the offender must
be performing a lawful act, that he was doing it with due care but somehow,
injury resulted by mere accident without fault or intention of causing it.
If at the very
beginning, the offender was negligent, you do not apply Article 275, paragraph
2. Instead, it will be Article 365 on criminal negligence. Notice that in the
last paragraph of Article 365, in the case of the so-called hit and run drivers
who have injured somebody and would abandon the victim of the accident, the penalty
is qualified to a higher degree. Here, under paragraph 4 of Article 12, the
infliction of the injury by mere accident does not give rise to a criminal or
civil liability, but the person who caused the injury is duty bound to attend
to the person who was injured. If he would abandon him, it is in that
abandonment that the crime arises which is punished under the second paragraph
of Article 275.
Compulsion of irresistible force and under the impulse of an
uncontrollable fear
The offender
must be totally deprived of freedom. If the offender still has freedom of
choice, whether to act or not, even if the force was employed on him or even if
he is suffering from uncontrollable fear, he is not exempt from criminal
liability because he is still possessed with voluntariness. In exempting
circumstances, the offender must act without voluntariness.
In a situation
where the offender would otherwise be exempt, but the requisites for exemption
are not all present, the offender is still entitled to a mitigating
circumstance of incomplete exemption under paragraph 1 of Article 13. Apply the
rule if majority of the requisites to exempt from criminal liability are
present. The offender shall be given the benefit of privileged mitigating
circumstances. That means that the penalty prescribed of the crime committed
shall be reduced by one or two degrees in accordance with Article 69 of the
Revised Penal Code. If less than a majority of the requisites for exemption are
present, the offender shall be given only the benefit of ordinary mitigating
circumstances. That means the penalty shall be reduced to the minimum period of
the prescribed penalty, unless the mitigating circumstance is offset by an
aggravating circumstance.
Mitigating
circumstances
Distinctions
between ordinary mitigating circumstances and privileged mitigating
circumstances
1. As to
the nature of the circumstances
Ordinary mitigating circumstances can
be offset by aggravating circumstances.
Privileged mitigating circumstance can never be offset by any
aggravating circumstance.
2. As to
effect
Ordinary mitigating circumstances, if
not offset, will operate to reduce the penalty to the minimum period, provided
the penalty is a divisible one.
Privileged mitigating circumstances operate to reduce the penalty by
one or two degrees, depending upon what the law provides.
You can easily
detect whether the circumstance which mitigates the liability of the offender
is privileged or not, that is, if the penalty is reduced by one degree. If the
penalty is lowered by one or two degrees, it is privileged; therefore, even if
there is an aggravating circumstance, do not compensate because that would be
violating the rules.
The
circumstances under Article 13 are generally ordinary mitigating, except in paragraph
1, where it is privileged, Article 69 would apply. So also, paragraph 2, in
cases where the offender is below 18 years old, such an offender if criminally
liable is entitled to the lowering of penalty by one degree. But if over nine
but under 15, he is entitled to a discretionary penalty of at least two degrees
lower. When there is a lowering of penalties by degrees, it is a privilege. It
cannot be offset by an aggravating circumstance.
Although the
bulk of the circumstances in Article 13 are ordinary mitigating circumstances,
yet, when the crime committed is punishable by a divisible penalty, two or more
of this ordinary mitigating circumstances shall have the effect of a privileged
mitigating circumstance if there is no aggravating circumstance at all.
Correlate
Article 13 with Articles 63 and 64. Article 13 is meaningless without knowing
the rules of imposing the penalties under Articles 63 and 64.
In bar
problems, when you are given
indeterminate sentences, these articles are very important.
When the
circumstance which mitigates criminal liability is privileged, you give effect
to it above all considerations. In other words, before you go into any
circumstance, lower first the penalty to the proper degree. That is precisely
why this circumstance is considered privileged, it takes preference over all
other circumstances.
A 17-year old boy committed parricide. Will he be given the benefit of
the Indeterminate Sentence Law? Then, the facts state, penalty for parricide is
reclusion perpetua to death.
You have
learned that the Indeterminate Sentence Law does not apply, among other
situations, when the penalty imposed is death or life imprisonment. But then in
the problem given, the offender is a 17-year old boy, therefore the penalty would
go one degree lower and the penalty for parricide which now stands at reclusion
perpetua will go down to reclusion temporal. Reclusion temporal is already
governed by the Indeterminate Sentence Law.
The answer,
therefore, is yes. He shall be given the benefit of the Indeterminate Sentence
Law. Although the penalty prescribed for the crime committed is reclusion
perpetua, that is not the imposable penalty, since being 17 years old is a
privileged mitigating circumstance. That privilege lowers the penalty by one
degree. The imposable penalty, therefore, is reclusion temporal. The
Indeterminate Sentence Law applies to this and so the offender will be given
its benefit.
Criminal laws
are to be construed always in a manner liberal or lenient to the offender.
Between giving the offender the benefit of the Indeterminate Sentence Law and
withholding it away from him, there is more reason to give him its benefit. It
is wrong for you to determine whether the Indeterminate Sentence Law will apply
or not on the basis of reclusion perpetua because that is not the imposable
penalty. The moment you do that, you disregard the privileged character of
minority. You are only treating it as an ordinary mitigating circumstance.
Privileged mitigating circumstances will apply over and above all other
considerations. When you arrive at the correct penalty, that is the time when
you find out whether the Indeterminate Sentence Law will apply or not.
For purposes of
lowering the penalty by one or two degrees, the age of the offender at the
time of the commission of the crime
shall be the basis, not the age of the offender at the time the sentence is to
be imposed. But for the purposes of suspension of the sentence, the age of the
offender at the time the crime was committed is not considered, it is the age
of the offender at the time the sentence is to be promulgated.
Praeter intentionem
The common
circumstance given in the bar of praeter intentionem, under paragraph 3, means
that there must be a notable disproportion between the means employed by the
offender compared to that of the resulting felony. If the resulting felony
could be expected from the means employed, this circumstance does not avail.
This circumstance does not apply when the crime results from criminal negligence
or culpa. When the crime is the product of reckless imprudence or simple
negligence, mitigating circumstances does not apply. This is one of the three
instances where the offender has performed a felony different from that which
he intended. Therefore, this is the product of intentional felony, not a
culpable one.
Sufficient
threat or provocation
This is
mitigating only if the crime was committed on the very person who made the
threat or provocation. The common set-up given in a bar problem is that of
provocation was given by somebody. The person provoked cannot retaliate against
him; thus the person provoked retaliated on a younger brother or on an elder
father. Although in fact, there is sufficient provocation, it is not mitigating
because the one who gives the provocation is not the one against whom the crime
was committed.
A was walking
in front of the house of B. B at that time was with his brother C. C told B
that sometime in the past, A boxed him, and because he was small, he did not
fight back. B approached A and boxed him, but A cannot hit back at B because B
is bigger, so A boxed C. Can A invoke sufficient provocation to mitigate
criminal liability?
No. Sufficient
provocation must come from the offended party. There may actually be sufficient
provocation which immediately preceded the act, but if the provocation did not
come from the person offended, paragraph 4 of Article 13 will not apply.
The commission
of the felony must be immediate to the threat or provocation in order that this
circumstance be mitigating. If there is no sufficient break of time before the
provocation or threat and the consequent commission of the crime, the law
presupposes that during that interval, whatever anger or diminished
self-control may have emerged from the offender had already vanished or
disappeared. In applying this mitigating circumstance, the courts are generally
considering that there must be no break between the provocation or threat and
the commission of the felony. In other words, the felony was committed
precisely because he was then and there provoked.
However, the
recent rulings of the Supreme Court, as well as the Court of Appeals, has
stretched this criterion—it is not only a matter of time anymore. Before, there
was a ruling that if a period of one hour had lapsed between the provocation
and the commission of the felony, this mitigating circumstance is no longer
applicable.
Illustration:
The accused
went to a barrio dance. In that gathering, there was a bully and he told the accused
that he is not allowed to go inside. The accused tried to reason out but the
bully slapped him several times in front of so many people, some of whom were
ladies who were being courted by the accused, so he was humiliated and
embarrassed. However, he cannot fight the bully at that time because the latter
was much bigger and heavier. Accused had no choice but to go home. When he saw
the bully again, this time, he was armed with a knife and he stabbed the bully
to death. The evidence for the accused showed that when he went home, he was
not able to sleep throughout the night, thinking of the humiliation and outrage
done to him, despite the lapse of about 22 hours. The Supreme Court gave him
the benefit of this mitigating circumstance. The reason stated by the Supreme
Court for allowing the accused to be benefited by this mitigating circumstance
is that the effect of the humiliation and outrage emitted by the offended party
as provocation upon the accused was
still present when he committed the crime and, therefore, the reason for
paragraph 4 still applies. The accused was still acting under a diminished
self-control because he was thinking of the humiliation he suffered in the
hands of the offended party. The outrage was so serious unless vindicated.
This is the
correct interpretation of paragraph 4, Article 13. As long as the offender at
the time he committed the felony was still under the influence of the outrage
caused by the provocation or threat, he is acting under a diminished
self-control. This is the reason why it is mitigating.
You have to
look at two criteria:
1. If from the element of time, there is a material laps of time stated in
the problem and there is nothing stated in the problem that the effect of the
threat of provocation had prolonged and affected the offender at the time he
committed the crime, they you use the criterion based on the time element.
2. However, if there is that time element and at the same time, facts are
given indicating that at the time the offender committed the crime, he is still
suffering from outrage of the threat or provocation done to him, then he will
still get the benefit of this mitigating circumstance.
In People
vs. Diokno, a Chinaman eloped with a woman. Actually, it was almost three
days before the accused was able to locate the house where the Chinaman brought
the woman. Here, sufficient provocation was one of the mitigating circumstances
considered by the Supreme Court in favor of the accused.
Vindication
of a grave offense
The word
“offense” should not be taken as a crime. It is enough if what was imputed or
what was done was wrong. In considering whether the wrong is a grave one upon
the person who committed the crime, his age, education and social status will
be considered.
Here, in
vindication of a grave offense, the vindication need not be done by the person
upon whom the grave offense was committed. So, unlike in sufficient threat or
provocation where the crime should be inflicted upon the very person who made
the threat or provocation, here, it need not be the same person who committed
the grave offense or who was offended by the wrong done by the offended party.
The word
“immediate” here does not carry the same meaning as that under paragraph 4. The
word “immediate” here is an erroneous Spanish translation because the Spanish
word is “proxima” and not “immediatementa.” Therefore, it is enough that the
offender committed the crime with the grave offense done to him, his spouse,
his ascendant or descendant or to his brother or sister, whether natural,
adopted or legitimate and that is the proximate cause of the commission of the
crime.
Passion
or obfuscation
This stands on
the premise or proposition that the offender is suffering from a diminished
self control because of the passion or obfuscation. The same is true with the
circumstances under paragraphs 4 and 5. So, there is a ruling to the effect
that if the offender is given the benefit of paragraph 4, he cannot be given
the benefit of paragraph 5 or 6, or vice-versa. Only one of the three
mitigating circumstances should be given in favor of the offender.
However, in one
case, one of the mitigating circumstances under paragraphs 4, 5 and 6 stands or
arises from a set of facts, and another mitigating circumstance arises from
another set of facts. Since they are predicated on different sets of facts,
they may be appreciated together, although they arose from one and the same
case. Hence, the prohibition against considering all these mitigating
circumstances together and not as one applies only if they would be taken on
the basis of the same set of facts.
If the case
involves a series of facts, then you can predicate any one of these
circumstances on one fact and the other on another fact and so on.
The passion
must be legitimate. As a rule, it cannot be based on common law relationship
because common law relationships are illicit. However, consider whether passion
or obfuscation is generated by common law relationship or some other human
consideration.
In a case where
the relationship between the accused and the woman he was living with was one
of common law, he came home and surprised his common law wife having sexual
intercourse with a friend. This infuriated him. He killed the friend and he
claimed passion or obfuscation. The trial court denied his claim because the
relationship was a common law one. On review, the accused was given the benefit
of the circumstances and the basis of considering passion or obfuscation in
favor of the accused was the act of the common law wife in committing adultery
right from the conjugal bed. Whether or not they are married, any man who
discovers that infidelity was committed on the very bed provided by him to the
woman would naturally be subjected to obfuscation.
When a married
person surprised his better half in the act of sexual intercourse with another,
he gets the benefit of Article 247. However, that requisite which in the first
place, the offender must have surprised his/ her spouse actually committing
sexual intercourse should be present. If the surprising was done not in the
actual act of sexual intercourse but before or after it, then Article 247 does
not apply.
Although this
is the ruling, still, the accused will be given the benefit of sufficient
provocation if the intercourse was done in his dwelling. If this act was done
somewhere else and the accused kills the paramour or the spouse, this may be
considered as mitigation of a grave offense to him or otherwise as a situation
sufficient to create passion or obfuscation. Therefore, when a married man upon
coming home, surprises his wife who was nude, Article 247 does not apply. If he
kills them, vindication of a grave offense will be mitigating in favor of the
offender.
Illustrations:
A is courting
B, a receptionist in a beerhouse. C danced with B. A saw this and stabbed C. It
was held that jealousy is an acknowledged basis of passion.
A, a male
classmate is escorting B, a female classmate. On the way out, some men whistled
lustfully. The male classmate stabbed said men. This was held to be
obfuscation.
When a man saw
a woman bathing, almost naked, almost naked, for which reason he raped her,
such man cannot claim passion as a mitigating circumstance.
A man and a
woman were living together for 15 years. The man left the village where they
were living and never returned home. The common law wife learned that he was
getting married to a classmate. On the scheduled wedding day, she stabbed the
groom in the chest, instantly killing him. She confessed and explained that any
woman cannot tolerate what he did to her. She gave him the best years of her
life. She practically waited for him day and night. It was held that passion
and obfuscation were considered mitigating. Ingratitude was shown here.
Voluntary
surrender
The essence of
voluntary surrender requires that the offender, after having committed the
crime, had evaded the law enforcers and the law enforcers do not know of his
whereabouts. In short, he continues to elude arrest. If, under this
circumstance, the offender would come out in the open and he gives himself up,
his act of doing so will be indicative of repentance and he also saves the
government the time and the expense of looking for him.
As a general
rule, if after committing the crime, the offender did not flee and he went with
the responding law enforcers meekly, voluntary surrender is not applicable.
However, there
is a ruling that if after committing the crime, the offender did not flee and
instead waited for the law enforcers to arrive and he surrendered the weapon he
used in killing the victim, the ruling was that voluntary surrender was
mitigating. In this case, the offender had the opportunity to go into hiding,
the fact that he did not flee is not voluntary surrender.
However, if he
comes out from hiding because he is seriously ill and he went to get medical
treatment, the surrender is not considered as indicative of remorse or
repentance. The surrender here is only done out of convenience to save his own
self. Hence, it is not mitigating.
Even if the
offenders may have gone into hiding, if the law enforcers had already known
where he is hiding and it is just a matter of time before he is flushed out of
that place, then even if the law enforcers do not know exactly where he was
hiding and he would come out, this is not voluntary surrender.
Whether or not
a warrant of arrest had been issued against the offender is immaterial and
irrelevant. The criterion is whether or not the offender had gone into hiding
and the law enforcers do not know of his whereabouts. If he would give up, his
act of surrendering under such circumstances indicates that he is willing to
accept the consequences of the wrong he has done and also thereby saves the
government the effort, the time and the expenses to be incurred in looking for
him.
Where the
offender went to the municipal building 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 vs. Mindac.
Surrender to be
considered voluntary and thus mitigating, must be spontaneous, demonstrating an
intent to submit himself unconditionally to the person in authority or his
agent in authority, because 1. he acknowledges his guilt, 2. he wishes to save
the government the trouble and expenses of searching and capturing him. Where
the reason for the surrender of the accused was to insure his safety, his
arrest by policemen pursuing him being inevitable, the surrender is not
spontaneous.
Physical
defect
The physical
defect that a person may have must have a relation to the commission of the
crime. In a case where the offender is deaf and dumb, personal property was entrusted
to him and he misappropriated the same. The crime committed was estafa. The
fact that he was deaf and dumb is not mitigating since that does not bear any
relation to the crime committed.
Not any
physical defect will affect the crime. It will only do so if it has some
relation to the crime committed. If a person is deaf and dumb and he has been
slandered, he cannot talk so what he did was he got a piece of wood and struck
the fellow on the head. The crime committed was physical injuries. The Supreme
Court held that being a deaf and dumb is mitigating because the only way is to
use his force because he cannot strike back in any other way.
If the offender
is blind in one eye, as long as his means of action, defense or communication
with others are not restricted, such circumstance is not mitigating. This
circumstance must also have a bearing on the crime committed and must depend on
how the crime was committed.
Analogous
cases
The act of the offender of leading the law enforcers to the place where
he buried the instrument of the crime has been considered as equivalent to
voluntary surrender. The act of a thief in leading the authorities to the place
where he disposed of the loot has been considered as analogous to voluntary
surrender.
Stealing by a
person who is driven to do so out of extreme poverty is considered as analogous
to incomplete state of necessity. However, this is not so where the offender
became impoverished because of his own way of living his life. If his lifestyle
is one of having so many vices, as a result of which he became poor, his
subsequent stealing because of his poverty will not be considered mitigating by
incomplete state of necessity.
Aggravating
circumstances
Kinds of
aggravating circumstances:
1. Generic or those that can generally apply to all crimes;
2. Specific or those that apply only to a particular crime;
3. Qualifying or those that change the nature of the crime;
4. Inherent or those that must of necessity accompany the commission of
the crime.
The aggravating
circumstances must be established with moral certainty, with the same degree of
proof required to establish the crime itself.
The most
important of the classification of aggravating circumstances are the qualifying
and the generic aggravating circumstances.
In practice,
the generic aggravating circumstances are referred to simply as aggravating
circumstances. The so-called qualifying aggravating circumstances are simply
referred to as qualifying circumstances. This is so because there is no
qualifying circumstance that is not aggravating. To say qualifying aggravating
circumstance is redundant. In the examination, if you find qualifying
circumstances, you have to think about these as aggravating circumstances which
are the ingredients of the crime.
Distinctions
between aggravating and qualifying circumstances:
In aggravating
circumstances—
1. The circumstance can be offset by an ordinary mitigating circumstance;
2. This circumstance must be alleged in the information. If it is proved
during trial, the court would consider the same in imposing the penalty.
3. It is not an ingredient of the crime. It only affects the penalty to be
imposed but the crime remains the same.
In qualifying
circumstance—
1. The circumstance affects the nature of the crime itself such that the
offender shall be liable for a more serious crime. The circumstance is actually
an ingredient of the crime;
2. Being an ingredient of the crime, it cannot be offset by any mitigating
circumstance;
3. Qualifying circumstances to be appreciated as such must be specifically
alleged in the complaint or information. If not alleged but proven during
trial, it will be considered only as a generic aggravating circumstance. If his
happens, they are susceptible of being offset by a mitigating circumstance.
An aggravating
circumstance is qualifying when it is an ingredient of the crime. Therefore it
is included in the provision of law defining the crime. If it is not so
included, it is not qualifying.
In Article 248, in the crime of murder, the law specifically mentions
several circumstances which are aggravating under Article 14. All of these will
qualify a killing from homicide to murder; however, you understand that only
one is qualifying.
If let us say
that the accused was charged with murder. Three of these circumstances:
treachery, evident premeditation and act was done in consideration of a price,
reward or promise were alleged as aggravating. Only one of these is qualifying.
If any one of the three circumstances was proven, the crime was already murder.
If the other two are also proven, even if they are not alleged in the
information or complaint, they are only to be taken as generic. If there is any
mitigating circumstance in favor of the offender, the two other circumstances
which are otherwise qualifying could be offset by the mitigating, provided the
mitigating circumstance is not a privileged mitigating circumstance. Therefore,
if there are three of the qualifying circumstances alleged in the complaint or
information, only one will qualify the crime. The others will merely be
considered as generic. Thus, if there is any ordinary mitigating circumstance
in favor of the accused, such will be wiped out by these circumstances,
although initially they are considered as qualifying. Do not hesitate to offset
on the principle that a qualifying circumstance cannot be offset by an ordinary
mitigating circumstance because only one is necessary.
Even if any of
the qualifying circumstances under Article 248 on murder was proven, if that is
not the circumstance alleged in the information, it cannot qualify the crime.
Let us say, what was alleged in the information was treachery. During the
trial, what was proven was the price, reward or promise as a consideration for
killing. The treachery was not proved. Just the same, the accused cannot be
convicted of murder because the circumstance proven is not qualifying but
merely generic. It is generic because it is not alleged in the information at
all. If any of these qualifying circumstances is not alleged in the information,
it cannot be considered qualifying because a qualifying circumstance is an
ingredient of the crime and it cannot be taken as such without having been
alleged in the information because it will violate the right of the accused to
be informed of the nature of the accusation against him.
Correlate
Article 14 with Article 62. Article 62 gives you the different rules regarding
aggravating circumstances. Aggravating circumstances will not be considered
when it is the crime itself. If the crime charged is qualified trespass to
dwelling, dwelling is no longer aggravating. When the aggravating circumstance
refers to the material execution of the crime, like treachery, it will only
aggravate the criminal liability of those who employed the same.
Illustration:
A person
induced another to kill somebody. That fellow killed the other guy and employed
treachery. As far as the killing is concerned, the treachery will qualify only
the criminal liability of the actual executioner. The fellow who induced him
becomes a co-principal and therefore, he is liable for the same crime
committed. However, let us say, the fellow was hired to kill the parent of the
one who hired him. He killed a stranger and not the parent. What was committed
was different from what was agreed upon. The fellow who hired him will not be
liable for the crime he had done because that was not the crime he was hired to
commit.
Q: When would qualifying circumstances be deemed, if
at all, elements of a crime?
A: A qualifying circumstance would be deemed an element of a crime when
- -
1. it changes
the nature of the offense, bringing about a more serious crime and a heavier
penalty;
2. it is
essential to the crime involved, otherwise some other crime is committed;
3. it is specifically alleged in
the information and proven during the trial;
Taking
advantage of public position
Article 62 was
also amended by Republic Act No. 7659. The legal import of the amendment is
that the subject circumstance has been made a qualifying or special aggravating
that shall not be offset or compensated by a mitigating circumstance. If not
alleged in the information, however, but proven during trial, it is only
appreciated as a generic aggravating circumstance.
The mitigating
circumstance referred to in the amendment as not affecting the imposition of
the penalty in the maximum are only ordinary mitigating circumstances.
Privileged mitigating circumstances always lower the penalty accordingly.
Disrespect
due to rank, age, sex
Aggravating
only in crimes against persons and honor, not against property like Robbery
with homicide. (People vs. Ga, 156 SCRA 790)
Teachers,
professors, supervisors of public and duly recognized private schools, colleges
and universities, as well as lawyers are persons in authority for purposes of
direct assault and simple resistance, but not for purposes of aggravating
circumstances in paragraph 2, Article 14. (People vs. Taoan, 182 SCRA 601)
Abuse
of confidence
Do not confuse
this with mere betrayal of trust. This is aggravating only when the very
offended party is the one who reposed the confidence. If the confidence is
reposed by another, the offended party is different from the fellow who reposed
the confidence and abuse of confidence in this case is not aggravating.
Illustrations:
A mother left
her young daughter with the accused because she had nobody to leave the child
with while she had to go on an errand. The accused abused the child. It was
held that the abuse of confidence was not aggravating. What is present is
betrayal of trust and that is not aggravating.
In a case where
the offender is a servant, the offended party is one of the members of the
family. The servant poisoned the child. It was held that abuse of confidence is
aggravating. This is only true, however, if the servant was still in the
service of the family when he did the killing. If he was driven by the master
out of the house for some time and he came back to poison the child, abuse of
confidence will no longer be aggravating. The reason is because that confidence
has already been terminated when the offender was driven out of the house.
Dwelling
Dwelling will
only be aggravating if it is the dwelling of the offended party. It should also
not be the dwelling of the offender. If the dwelling is both that of the
offender and the offended party, dwelling is not aggravating.
Dwelling need
not be owned by the offended party. It is enough that he used the place for his
peace of mind, rest, comfort and privacy. The rule that dwelling, in order to
be aggravating must be owned by the offended party is no longer absolute.
Dwelling can be aggravating even if it is not owned by the offended party,
provided that the offended party is considered a member of the family who owns
the dwelling and equally enjoys peace of mind, privacy and comfort.
Illustration:
Husband and
wife quarreled. Husband inflicted physical violence upon a wife. The wife left
the conjugal home and went to the house of her sister bringing her personal
belongings with her. The sister accommodated the wife in her home. The husband
went to the house of the sister-in-law and tried to persuade the wife to return
to the conjugal home but the wife refused since she was more at peace in her
sister’s home than in their conjugal abode. Due to the wife’s refusal to go
back to the conjugal home and live with her husband, the latter pulled out a
knife and stabbed the wife to death. It was held that dwelling was aggravating
although it is not owned by the victim since she is considered a member of the
family who owns the dwelling and that place is where she enjoyed privacy, peace
of mind and comfort.
Even a room in a hotel if rented as a dwelling, like what the salesmen
do when they are assigned in the provinces and they rent rooms, is considered a
dwelling. A room in a hotel or motel will be considered dwelling if it is used
with a certain degree of permanence, where the offended party seeks privacy,
rest, peace of mind and comfort.
If a young man
brought a woman in a motel for a short time and he gets killed there, dwelling
is not aggravating.
A man was
killed in the house of his common law wife. Dwelling is aggravating in this
case because the house was provided by the man.
Dwelling should
not be understood in the concept of a domicile. A person has more than one
dwelling. So, if a man has so many wives and he gave them places of their own,
each one is his own dwelling. If he is killed there, dwelling will be
aggravating, provided that he also stays there once in a while. When he is only
a visitor there, dwelling is not aggravating.
The crime of
adultery was committed. Dwelling was considered aggravating on the part of the
paramour. The paramour is not a resident of the same dwelling. However, if the
paramour was also residing in the same dwelling, it will not be aggravating.
The term
“dwelling” includes all the dependencies necessary for a house or for rest or
for comfort or a place of privacy. If the place used is on the second floor,
the stairs which are used to reach the second floor is considered a dwelling
because the second floor cannot be enjoyed without the stairs. If the offended
party was assaulted while on the stairs, dwelling is already aggravating. For
this reason, any dependency necessary for the enjoyment of a place of abode is
considered a dwelling.
Illustrations:
A and B are
living in one house. A occupies the ground floor while B the upper floor. The
stairs here would form part of part only of B’s dwelling, the same being
necessary and an integral part of his house or dwelling. Hence, when an attack
is made while A is on the stairs, the aggravating circumstance of dwelling is
not present. If the attack is made while B was on the stairs, then the
aggravating circumstance of dwelling is present.
Whenever one is
in his dwelling, the law is presuming that he is not intending to commit a
wrong so one who attacks him while in the tranquility of his home shows a
degree of perversity in him.
Dwelling is not
limited to the house proper. All the appurtenances necessary for the peace and
comfort, rest and peace of mind in the abode of the offended party are
considered dwellings.
Illustrations:
A man was
fixing something on the roof of his house when he was shot. It was held that
dwelling is aggravating. The roof still forms part of the house.
In the
provinces where the comfort rooms are usually far from the house proper, if the
offended party while answering the call of nature is killed, then dwelling is
aggravating since the comfort room is a necessary dependency of the house
proper.
A person while in the room of his house, maintaining the room, was shot. Dwelling is aggravating. If the offender entered the house and the offended party jumped out of the house, even if the offender caught up with him as he was already out of the house, dwelling is still aggravating. The reason is because he could not have left his dwelling were it not for the fact that the attacker entered his house.
If the offended
party was inside the house and the offender was outside and the latter shot the
former inside the house while he was still outside. Dwelling is still
aggravating even though the offender did not enter the house.
A garage is
part of the dwelling when connected with an interior passage to the house
proper. If not connected, it is not considered part of the dwelling.
One-half of a
house is used as a store and the other half is used for dwelling but there is
only one entrance. If the dwelling portion is attacked, dwelling is not
aggravating because whenever a store is open for business, it is a public place
and as such is not capable of being the subject of trespass. If the dwelling
portion is attacked where even the store is open, there is another separate
entrance to the portion used for dwelling, then the circumstance is
aggravating. However, in case the store closed, dwelling is aggravating since
here, the store is not a public place as in the first case.
A balcony is
part of the dwelling because it is appurtenant to the house.
Dwelling is
aggravating in robbery with homicide because the crime can be committed without
the necessarily transgressing the sanctity of the home. (People vs. De Los
Reyes, decided October 22, 1992)
Dwelling is
aggravating where the place is, even for a brief moment, a “home,” although he
is not the owner thereof as when the victim gets shot in the house of his own
parents.
Band
In band, there
should at least be four persons. All of them should be armed. Even if there are
four, but only three or less are armed, it is not a band. Whenever you talk of
band, always have in mind four at the very least. Do not say three or more
because it is four or more. The way the law defines a band is somewhat
confusing because it refers simply to more than 3, when actually it should be 4
or more.
Correlate this
with Article 306—Brigandage. The crime is the band itself. The mere forming of
a band even without the commission of a crime is already a crime so that band
is not aggravating in brigandage because the band itself is the way to commit
brigandage.
However, where
brigandage is actually committed, band becomes aggravating.
Uninhabited
place
It is
determined not by the distance of the nearest house to the scene of the crime
but whether or not in the place of the commission of the offense, there was a
reasonable possibility of the victim receiving some help.
Illustration:
A is on board a
banca, not so far away. B and C also are on board on their respective bancas.
Suddenly, D showed up from underwater and stabbed B. Is there an aggravating
circumstance of uninhabited place here? Yes, considering the fact that A and C
before being able to give assistance still have to jump into the water and swim
towards B and the time it would take them to do that, the chances of B
receiving some help was very little, despite the fact that there were other
persons not so far from the scene.
Evidence
tending to prove that the offender took advantage of the place and purposely
availed of it is to make it easier to commit the crime, shall be necessary.
Nighttime
What if the
crime started during the daytime and continued all the way to nighttime? This
is not aggravating.
As a rule, the
crime must begin and end during the night. Crime began at day and ended at
night as well as crime began at night and ended at day is not aggravated by the
circumstance of nighttime.
Darkness is
what makes this circumstance aggravating. The darkness of night must be
purposely sought.
Illustration:
One evening, a
crime was committed near the lamppost. The Supreme Court held that there is no
aggravating circumstance of nighttime. Even if the crime was committed at
night, but there was light, hence, darkness was not present, no aggravating
circumstance just by the fact of nighttime alone.
Even if there
was darkness but the nighttime was only and incident of a chance meeting, there
is no aggravating circumstance. It must be shown that the offender deliberately
sought the cover of darkness and the offender purposely took advantage of
nighttime to facilitate the commission of the offense.
Nocturnity is
the period of time after sunset to sunrise, from dusk to dawn.
Different forms
of repetition or habituality of offender
1. Recidivism under Article 14 (9)—The offender at the time of his trial
for one crime shall have been previously convicted by final judgment of another
embraced in the same title of the Revised Penal Code.
2. Repetition or reiteracion under Article 14 (10)—The offender has been
previously punished for an offense to which the law attaches an equal or even
greater penalty or for two or more crimes to which it attaches a lighter
penalty.
3. Habitual delinquency under Article 62 (5)—The offender within a period
of 10 years from the date of his release or last conviction of the crimes of
serious or less serious physical injuries, robo, hurto, estafa or
falsification, is found guilty of any of the said crimes a third time or
another.
4. Quasi-recidivism under Article 160—Any person who shall commit a felony
after having been convicted by final judgment before beginning to serve such
sentence or while serving such sentence shall be punished by the maximum period
prescribed by law for the new felony.
Distinctions
between recidivism and habitual delinquency
In recidivism—
1. Two convictions are enough.
2. The crimes are not specified; it is enough that they may be embraced
under the same title of the Revised Penal Code.
3. There is no time limit between the first conviction and the subsequent
conviction. Recidivism is imprescriptible.
4. It is a generic aggravating circumstance which can be offset by an
ordinary mitigating circumstance. If not offset, it would only increase the
penalty prescribed by law for the crime committed to its maximum period.
5. The circumstance need not be alleged in the information.
In habitual delinquency—
1. At least three convictions are required.
2. The crimes are limited and specified to: a. serious physical injuries,
b. Less serious physical injuries, c. robbery, d. theft, e. estafa or swindling
and f. falsification.
3. There is a time limit of not more than 10 years between every conviction
computed from the first conviction or release from punishment thereof to
conviction computed from the second conviction or release therefrom to the
third conviction and so on…
4. Habitual delinquency is a special aggravating circumstance, hence it
cannot be offset by any mitigating circumstance. Aside from the penalty
prescribed by law for the crime committed, an additional penalty shall be
imposed depending upon whether it is already the third conviction, the fourth,
the fifth and so on…
5. The circumstance must be alleged in the information; otherwise the
court cannot acquire jurisdiction to impose the additional penalty.
Recidivism
In recidivism,
the emphasis is on the fact that the offender was previously convicted by final
judgment of a felony and subsequently found guilty of another felony embraced
in the same title of the Revised Penal Code. The law considers this aggravating
when a person has been committing felonies embraced in the same title because
the implication is that he is specializing on a king of crime and the law wants
to prevent any specialization. Hence, ordinarily, when a person commits a crime
under different titles, no aggravating circumstance is present. It is important
that the conviction which cam earlier must refer to the crime committed earlier
than the subsequent conviction.
Illustration:
In 1980, A
committed robbery. While the case was being tried, he committed theft in 1983.
He was also found guilty and was convicted of theft also in 1983. The
conviction became final because he did not appeal anymore and the trial for hi
earlier crime which was robbery ended in 1984 where he was also convicted. He
also did not appeal this decision. Is the accused a recidivist? The subsequent
conviction must refer to a felony committed later in order to constitute
recidivism. The reason for this is as the time the first crime was committed,
there was no other crime of which he was convicted so he cannot be regarded as
a repeater.
In recidivism,
the crimes committed should be felonies. Recidivism cannot be had if the crime
committed is a violation of a special law.
Recidivism does
not prescribe. No matter how long ago the offender was convicted, if he is
subsequently convicted of a crime embraced in the same title of the Revised
Penal Code, it is taken into account as aggravating in imposing the penalty.
Pardon does not
erase recidivism, even if it is absolute because only it only excuses the
service of the penalty, not the conviction.
If the offender
has already served his sentence and he was extended an absolute pardon, the
pardon shall erase the conviction including recidivism because there is no more
penalty so it shall be understood as referring to the conviction or the effects
of the crime.
Recidivism may
be considered even though not alleged in the information because this is only a
generic aggravating circumstance.
It is necessary
to allege recidivism in the information, but if the defense does not object to
the presentation of evidence during the trial and the same was proven, the
court shall consider such aggravating circumstance because it is only generic.
In recidivism,
although the law defines it as a circumstance where a person having been
convicted by final judgment was previously convicted also by final judgment for
a crime embraced in the same title of the Revised Penal Code, it is necessary
that the conviction must come in the order in which they are committed.
In 1975, the
same offender committed robbery. While the same was being tried in 1978, he
committed theft. In 1980, he was convicted of theft and he did not appeal the
decision. The trial for robbery ended in 1981. May the judge in imposing the
penalty for robbery consider the accused a recidivist considering that he was
already convicted in 1980 for the crime of theft which is under the same title
of the Revised Penal Code as that of robbery?
No, because the
robbery which was committed earlier would be decided later. It must be the
other way around. This is because in 1975 when he committed the robbery, there
was no crime committed yet. Thus, even though in imposing the penalty for
robbery, there was already a prior conviction, if that conviction is subsequent
to the commission of robbery, he is not a recidivist. If you will interpret the
definition of recidivism, this would seem to be covered but that is not so.
Habitual
delinquency
We have to
consider the crimes in it and take note of the titles of crimes in the Revised
Penal Code.
If the offender
had committed and was convicted of each of the crimes under each category so
that no two crimes fall under the same title of the Revised Penal Code, you
have a situation where the offender is a habitual delinquent because no two
crimes fall under the same title of the Code.
If the first
conviction is for serious physical injuries and the second conviction is for
robbery, theft or estafa and the third is for falsification, then the moment
the habitual delinquent is on his fourth conviction already, you cannot avoid
that he is a habitual delinquent and at the same time a recidivist because at
least, the fourth time will have to fall under any of the three categories.
When the
offender is a recidivist and a the same time a habitual delinquent, the penalty
for the crime for which he will be convicted will be increased to the maximum
period unless offset by a mitigating circumstance. After determining the
correct penalty for the last crime committed, an added penalty will be imposed
in accordance with Article 62.
Habitual
delinquency, being a special or specific aggravating circumstance must be
alleged in the information. If it is not alleged in the information and in the
course of the trial, the prosecution tried to prove that the offender is a
habitual delinquent over the objection of the accused, the court has no
jurisdiction to consider the offender a habitual delinquent. Even if the
accused is in fact a habitual delinquent but it is not alleged in the
information, the prosecution when introducing evidence was objected to, the
court cannot admit the evidence presented to prove habitual delinquency over
the objection of the accused.
On the other
hand, recidivism is a generic aggravating circumstance. It need not be alleged
in the information. Thus, even if recidivism is not alleged in the information,
if proven during the trial, the court can appreciate the same. If the
prosecution tried to prove recidivism and the defense objected, the objection
should be overruled. The reason is that recidivism is a generic aggravating
circumstance only. As such, it does not have to be alleged in the information
because even if not alleged, if proven during the trial, the trial court can
appreciate it.
Right now, the
present rule is that it can be appreciated even if not alleged in the
information. This is the correct view because recidivism is a generic
aggravating circumstance. The reason why habitual delinquency cannot be
appreciated unless alleged in the information is because recidivism has nothing
to do with the crime committed. Habitual delinquency refers to prior conviction
and therefore this must be brought in the information before the court can
acquire jurisdiction over this matter.
Generally, when
the prosecutor alleges habitual delinquency, it must specify the crimes
committed, the dates when they were committed, the court which tried the case,
the date when the accused was convicted or discharged. If these are not
alleged, then the information is defective.
However, in a
relatively recent ruling of the Supreme Court, it was held that even though the
details of habitual delinquency was not set forth in the information, as long
as there is a habitual delinquent, that is enough to confer jurisdiction upon a
court to consider it. In the absence of details set forth in the information,
the accused has the right to avail of the so-called bill of particulars. Even
in a criminal case, the accused may file a motion for a bill of particulars. If
the accused fails to file such, he is deemed to have waived the required
particulars and so the court can admit evidence of the habitual delinquency,
even though over and above the objection of the defense.
Reiteracion
This has
nothing to do with the classification of the felonies. In reiteracion, the
offender has already tasted the bitterness of punishment. This is the philosophy
on which the circumstance becomes aggravating.
It is necessary
in order that there be reiteracion that the offender has already served out the
penalty. If the offender had not yet served out his penalty, forget about
reiteracion. That means that he has not yet tasted the bitterness of life but
if he had already served out the penalty, the law expects that since he has
already tasted punishment, he will more or less refrain from committing crimes
again. That is why if the offender committed a subsequent felony which carries
a penalty lighter than what he had served, reiteracion is not aggravating since
the law considers that somehow, this fellow was corrected because instead of
committing a serious crime, he committed a lesser one. If he committed another
lesser one, then he becomes a repeater.
So, in
reiteracion, the penalty attached to the crime subsequently committed should be
higher or at least equal to the penalty that he has already served. If that is
the situation, that means that the offender was never reformed by the fact that
he already served the penalty imposed on him on the first conviction. However,
if he commits a felony carrying a lighter penalty, subsequently, the law
considers that he has somehow been reformed but if he, again commits another
felony which carries a lighter penalty, then he becomes a repeater because that
means he has not yet reformed.
You will only
consider the penalty in reiteracion if there is already a second conviction.
When there is a third conviction, you disregard whatever penalty for the
subsequent crimes committed. Even if the penalty for the subsequent crimes
committed are lighter than the ones already served, since there are already two
of them, subsequently the offender is already a repeater.
However, if
there is only a second conviction, pay attention to the penalty attached to the
crime which was committed for the second crime. That is why it is said that
reiteracion is not always aggravating. This is so because if the penalty
attached to the felony subsequently committed is not equal to or higher than
the penalty already served, even if literally the offender is a repeater,
repetition is not aggravating.
Quasi-recidivism
This is found
in Article 160. The offender must already be convicted by final judgment and
therefore to have served the penalty already, but even at this stage, he
committed a felony before beginning to serve sentence or while serving
sentence.
Illustration:
Offender has
already been convicted by final judgment. Sentence was promulgated and he was
under custody in Muntinlupa. While he was in Muntinlupa, he escaped from his
guard and in the course of his escape, he killed someone. The killing was
committed before serving sentence but convicted by final judgment. He becomes a
quasi-recidivist because the crime committed was a felony.
The emphasis
here is on the crime committed before sentence or while serving sentence which
should be a felony, a violation of the Revised Penal Code. In so far as the
earlier crime is concerned, it is necessary that it be a felony.
Reverse the
situation. Assume that the offender was found guilty of illegal use of
prohibited drugs. While he was serving sentence, he got involved in a quarrel
and killed a fellow inmate. He is a quasi-recidivist because while serving
sentence, he committed a felony.
The emphasis is
on the nature of the crime committed while serving sentence or before serving
sentence. It should not be a violation of a special law.
Quasi-recidivism
is a special aggravating circumstance. This cannot be offset by any mitigating
circumstance and the imposition of the penalty in the maximum period cannot be
lowered by any ordinary mitigating circumstance. When there is a privileged
mitigating circumstance, the penalty prescribed by law for the crime committed
shall be lowered by 1 or 2 degrees, as the case may be, but then it shall be
imposed in the maximum period if the offender is a quasi-recidivist.
In consideration of a price, reward or promise
The Supreme
Court rulings before indicate this circumstance aggravates only the criminal
liability of the person who committed the crime in consideration of the price,
promise or reward but not the criminal liability of the person who gave the
price, reward or consideration. However, when there is a promise, reward or
price offered or given as consideration for the commission of a crime, the
person making the offer is an inducer, a principal by inducement while the
person on the receiving end is a principal by direct participation. Hence, their
responsibilities are the same. They are both principals and that is why the
recent rulings of the Supreme Court are to the effect that this aggravating
circumstance affects or aggravates not only the criminal liability of the
receiver of the price, reward or promise but also the criminal liability of the
one giving the offer.
By
means of inundation or fire
Fire is not
aggravating in the crime of arson.
Whenever a
killing is done with the use of fire, as when you kill someone, you burn down
his house while the latter is inside, this is murder.
There is no
such crime as murder with arson or arson with homicide. The crime is only
murder.
If the victim
is already dead and the house is burned, the crime is arson. It is either arson
or murder.
If the intent
is to destroy property, the crime is arson even if someone dies as a
consequence. If the intent is to kill, there is murder even if the house is
burned in the process.
Illustration:
A and B were
arguing about something. One argument led to another until A struck B to death
with a bolo. A did not know that C, the son of B was also in their house and
who was peeping through the door and saw what A did. Afraid that A might kill
him too, he hid somewhere in the house. A then dragged B’s body and poured
gasoline on it and burned the house altogether. As a consequence, C was burned
and eventually died too.
As far as the
killing of B is concerned, it is homicide since it is noted that they were
arguing. It could not be murder. As far as the killing of C is concerned, it is
arson since he intended to burn the house only.
No such crime
of arson with homicide. Law enforcers only use this to indicate that a killing
occurred while arson was being committed. At most, you could designate is as
death as a consequence of arson.
Evident
premeditation
For evident
premeditation to be aggravating, the following conditions must concur:
1. The time when the accused determined to commit the crime.
2. An act manifestly indicating that the accused has clung to his determination.
3. Sufficient lapse of time between such determination and execution, to
allow him to reflect upon the consequences of his act.
Illustration:
A, on Monday,
thought of killing B on Friday. A knew that B is coming home only on Friday so
A decided to kill B on Friday evening when he comes home. On Thursday, A met B
and killed him. Is there evident premeditation? None. But there is treachery as
the attack was sudden.
Can there be
evident premeditation when the killing is accidental? No. In evident
premeditation, there must be a clear reflection on the part of the offender.
However, if the killing was accidental, there was no evident premeditation.
What is necessary to show and to bring about evident premeditation aside from
showing that at some prior time, the offender has manifested the intention to
kill the victim, and subsequently killed the victim.
Illustrations:
A and B fought.
A told B that someday he will kill B. On Friday, A killed B. A and B fought on
Monday but since A already suffered so many blows, he told B, “This week shall
not pass, I will kill you.” On Friday, A killed B. Is there evident
premeditation in both cases? None in both cases. What condition is missing to
bring about evident premeditation? Evidence to show that between Monday and
Friday, the offender clung to his determination to kill the victim, acts
indicative of his having clung to his determination to kill B.
A and B had a
quarrel. A boxed B. A told B, “I will kill you this week.” A bought firearms.
On Friday, he waited for B but killed C instead, was there evident
premeditation? There is aberratio ictus. So, qualify. Insofar as B is
concerned, the crime is attempted murder because there is evident
premeditation. However, that murder cannot be considered for C. Insofar as C is
concerned, the crime is homicide because there was no evident premeditation.
Evident
premeditation shall not be considered when the crime refers to a different
person other than the person premeditated against.
While it is
true that evident premeditation may be absorbed in treachery because the means,
method and form of attack may be premeditated and would be resorted to by the
offender. Do not consider both aggravating circumstances of treachery and
evident premeditation against the offender. It is only treachery because the
evident premeditation is the very conscious act of the offender to ensure its
execution.
But there may
be evident premeditation and there is treachery also when the attack was so
sudden.
A and B are
enemies. They fought on Monday and parted ways. A decided to seek revenge. He
bought a firearm and practiced shooting and then sought B. When A saw B in a
restaurant with so many people, A did not dare fire at B for fear that he might
hit a stranger but instead, A saw a knife and used it to stab B with all
suddenness. Evident premeditation was not absorbed in treachery because
treachery refers to the manner of committing the crime. Evident premeditation
is always absorbed in treachery.
This is one
aggravating circumstance where the offender who premeditated, the law says
evident. It is not enough that there is some premeditation. Premeditation must
be clear. It is required that there be evidence showing meditation between the
time when the offender determined to commit the crime and the time when the
offender executed the act. It must appear that the offender clung to his
determination to commit the crime. The fact that the offender premeditated is
not prima facie indicative of evident premeditation as the meeting or encounter
between the offender and the offended party was only by chance or accident.
In order for
evident premeditation to exist, the very person/ offended party premeditated
against must be the one who is the victim of the crime. It is not necessary
that the victim is identified. It is enough that the victim is determined so he
or she belongs to a group or class that may be premeditated against. This is a
circumstance that will qualify a killing from homicide to murder.
Illustration:
A person who
has been courting a lady for several years now has been jilted. Because of
this, he thought of killing somebody. He then bought a knife, sharpened it and
stabbed the first man he met on the street. It was held that evident
premeditation was not present. It is essential that the victim be identified
from the beginning.
A premeditated
kill of any member of a particular fraternity. He then killed one. This is
murder—a homicide which has been qualified into murder by evident premeditation
which is a qualifying circumstance. The same is true where A planned to kill
any member of the Iglesia ni Kristo.
There are some
crimes which cannot be aggravated by evident premeditation because they require
some planning before they can be committed. Evident premeditation is part of
the crime like kidnapping for ransom, robbery with force upon things where
there is entry into the premises of the offended party, and estafa through
false pretenses where the offender employs insidious means which cannot happen
accidentally.
Craft
Aggravating in
a case where the offenders pretended to be bona fide passengers of a jeepney in
order for them not to arouse suspicion, but once inside the jeep, robbed the
passengers and the driver. (People vs. Lee)
Abuse
of superior strength
There must be
evidence of notorious inequality of forces between the offender and the
offended party in their age, size and strength, and that the offender took
advantage of such superior strength in the commission of the crime. The mere
fact that there were two persons who attacked the victim does not per se
constitute abuse of superior strength. (People vs. Carpio, 191 SCRA 12)
Treachery
Treachery
refers to the employment of means, methods and form in the commission of the
crime which tend directly and specially to ensure its execution without risk to
himself arising form the defense which the offended party might make. The
means, method or form employed may be an aggravating circumstance which like
availing of the total darkness in nighttime or of superior strength taken
advantage of by the offender, employing means to weaken the defense.
Illustration:
A and B have
been quarreling for some time. One day, A approached B and befriended him. B
accepted. A proposed that to celebrate their renewed friendship, they were
going to drink. B was having too much to drink. A was just waiting for him to
get intoxicated and after which, he stabbed B.
A pretended to
befriend B, just to intoxicate the latter. Intoxication is the means
deliberately employed by the offender to weaken the defense of the other party.
If this was the very means employed, the circumstance may be treachery and not
abuse of superior strength or means to weaken the defense.
What is the
essence of treachery?
The essence of
treachery is that by virtue of the means, method or form employed by the
offender, the offended party was not able to put up any defense. If the
offended party was able to put up a defense, even only a token one, there is no
treachery. Instead, some other aggravating circumstance may be present but it
is no longer treachery.
Illustration:
A and B
quarreled. However, A had no chance to fight with B because A is much smaller
than B. A thought of killing B but he cannot just attack because of the
latter’s size. So A thought of committing a crime at nighttime with the cover
of darkness. A positioned himself in the darkest part of the street where B
passes on his way home. One evening, A waited for B and then stabbed the
latter. However, B pulled a knife as well and also stabbed A. A was wounded but
not mortal so he managed to run away. B was able to walk a few steps before he
fell and died. What crime was committed?
The crime is
only homicide. The aggravating circumstance is only nocturnity and nocturnity
is not a qualifying circumstance. Treachery cannot be considered here because
the offended party was able to put up a defense and that negates treachery. In
treachery, the offended party, due to the means, method or form employed by the
offender, the former was denied the chance to defend himself. If because of the
cover of darkness, B was not able to put up a defense and A was able to flee as
B died, the crime will be murder due to the presence of treachery. In the first
situation, the crime was only homicide, the nighttime being a generic
aggravating circumstance.
In the example
where A pretended to befriend B and invited him to celebrate their friendship,
if B despite intoxication was able to put up some fight against A but B
eventually dies, then treachery is no longer present but means employed to
weaken the defense. The crime committed is murder but the proper qualifying
circumstance is the employment of means to weaken the defense.
In the same
manner, if the offender avails of the services of men and in the commission of
the crime, they took advantage of superior strength but somehow, the offended
party fought back, the crime is still murder if the victim dies. Although the
qualifying circumstance is abuse of superior strength and not treachery, the
former also makes it murder under Article 248.
Treachery is
out when the attack was merely incidental or accidental because in the
definition of treachery, the implication is that the offender had consciously
and deliberately adopted the method, means and form used or employed by him.
So, if A and B casually met and there and then A stabbed B, although stabbing
may be sudden since A was not shown to have the intention of killing B,
treachery cannot be considered present.
There must be
evidence on how the crime was committed. It is not enough to show that the
victim sustained a treacherous wound. Example: A had a gunshot wound at the
back of his head, the SC ruled that this is only homicide since treachery must
be proven. It must be shown that the victim was totally defenseless.
Suddenness of
the attack does not by itself constitute treachery in the absence of evidence
that the manner of attack was consciously adopted by the offender to render the
victim defenseless. (People vs. Ilagan, 191 SCRA 643)
But where
children of tender years were killed, being one year old and 12 years old, the
killing is murder even if the manner of attack was not shown. (People vs.
Gahon, decided on April 30, 1991)
In People
vs. Lapan, decided on July 6,
1992 , the accused was prosecuted for robbery with homicide.
Robbery was not proven beyond reasonable doubt. The accused was held liable
only for the killings. Although one of the victims was barely six years old,
the accused was convicted only for homicide, aggravated by dwelling and in
disregard of age.
Treachery is
not appreciated where quarrel and heated discussion preceded a killing, because
the victim would be put on guard (People vs. Gupo). But although a
quarrel preceded a killing where the victim was atop a coconut tree, treachery
was considered as the victim was not in a position to defend himself (People
vs. Toribio).
Treachery may
still be appreciated even when the victim was forewarned of danger to his
person. What is decisive is that the execution of the attack made it impossible
for the victim to defend himself or to retaliate. Thus, even a frontal attack
could be treacherous when unexpected and on an unarmed victim who would be in
no position to repel the attack or avoid it (People v. Malejana, 2006).
Neither does
the fact that other people were present during the shooting negate the
attendance of treachery. The suddenness of the attack prevented the victim’s
unarmed companions from coming to his aid (People v. Malejana, supra).
Furthermore, if
there is conspiracy, treachery shall be considered against all perpetrators (Rivera
v. People, 2006).
Distinction
between ignominy and cruelty
Ignominy shocks
the moral conscience of man while cruelty is physical. Ignominy refers to the
moral effect of a crime and it pertains to the moral order, whether or not the
victim is dead or alive. Cruelty refers to the physical suffering of the victim
so he has to be alive. In plain language, ignominy is adding insult to injury.
A clear example is a married woman being raped before the eyes of her husband.
In a case where
the crime is rape and the accused abused the victims from behind, the Supreme
Court held the crime as aggravated by ignominy. Hence, raping a woman from
behind is ignominous because that is not the normal form of intercourse, it is
something which offends the morals of the offended woman. This is how animals
do it.
In a case of
homicide, while the victim after having been killed by the offender, the
offender shoved the body inside a canal, ignominy was held aggravating.
After having
been killed, the body was thrown into a pile of garbage, ignominy is
aggravating. The Supreme Court held that it added shame to the natural effects
of the crime.
Cruelty and
ignominy are circumstances brought about which are not necessary in the commission
of the crime.
Illustration:
A and B are enemies. A upon seeing B pulled out a knife and stabbed B
60 times. Will the fact be considered as an aggravating circumstance of
cruelty? No, there is cruelty only when there are evidence that the offender
inflicted the stab wounds while enjoying or delighting seeing the victim in
pain. For cruelty to exist as an aggravating circumstance, there must be
evidence showing that the offender inflicted the alleged cruel wounds slowly
and gradually and that he is delighted in seeing the victim suffer in pain. In
the absence of evidence to this effect, there is no cruelty. Sixty stab wounds
do not ipso facto make them aggravating circumstances of cruelty. The crime is
murder if 60 wounds were inflicted gradually; absence of this evidence means
the crime committed was only homicide.
Cruelty is
aggravating in rape where the offender tied the victim to a bed and burnt her
face with a lighted cigarette while raping her laughing all the way. (People
vs. Lucas, 181 SCRA 315)
Unlawful
entry
Unlawful entry
is inherent in the crime of robbery with force upon things but aggravating in
the crime of robbery with violence against or intimidation of persons.
Motor
vehicle
The Supreme
Court considers strictly the use of the word “committed,” that the crime is
committed with the use of a motor vehicle, motorized means of transportation or
motorized watercraft. There is a decision by the Court of Appeals that a
motorized bicycle is a motor vehicle even if the offender used only the foot
pedal because he does not know how to operate the motor so if a bicycle is used
in the commission of the crime, motor vehicle becomes aggravating if the
bicycle is motorized.
This
circumstance is aggravating only when used in the commission of the offense. If
motor vehicles are used only in the escape of the offender, it is not
aggravating. It must have been used to facilitate the commission of the crime
to be aggravating.
Aggravating
when a motorized tricycle was used to commit a crime.
Organized
or syndicated crime group
In the same
amendment to Article 62 of the Revised Penal Code, paragraphs were added which
provide that the maximum penalty shall be imposed if the offense was committed
by any person who belongs to an organized or syndicated crime group.
An organized or
syndicated crime group means a group of two or more persons collaborating,
confederating or mutually helping one another for the purpose of gain in the
commission of a crime.
With this
provision, the circumstance of an organized or syndicated crime group having
committed the crime has been added in the Code as a special aggravating
circumstance. The circumstance being special or qualifying, it must be alleged
in the information and proved during trial. Otherwise, if not alleged in the
information, even though proved during trial, the court cannot validly consider
the circumstances because it is not among those enumerated under Article 14 of
the Code as aggravating. It is noteworthy, however, that there is an organized
or syndicated group even when only two persons collaborated, confederated or
mutually helped one another in the commission of a crime, which acts are
inherent in a conspiracy. Therefore, where conspiracy in the commission of a
crime is alleged in the information, the allegation may be considered as
procedurally sufficient to warrant receiving of evidence on the matter during
trial and consequently, the said special aggravating circumstance may be
appreciated if proven.
Use
of Dangerous Drugs
Under
the Dangerous Drugs Act of 2002 (Section 25), notwithstanding the provisions of
any law to the contrary, a positive finding for the use of dangerous drugs
shall be a qualifying aggravating circumstance in the commission of a crime by
an offender, and the application of the penalty provided for in the Revised
Penal Code shall be applicable.
Alternative
circumstances
Four alternative circumstances
1. Relationship;
2. Intoxication;
3. Degree of instruction; and
4. Education
Use only the
term alternative circumstance for as long as the particular circumstance is not
involved in any case or problem. The moment it is given in a problem, do not
use alternative circumstance, refer to it as aggravating or mitigating
depending on whether the same is considered as such or the other. If relationship is aggravating, refer to it
as aggravating. If mitigating, then
refer to it as such.
Except for the
circumstance of intoxication, the other circumstances in Article 15 may not be
taken into account at all when the circumstance has no bearing on the crime
committed. So the court will not
consider this as aggravating or mitigating simply because the circumstance has
no relevance to the crime that was committed.
Do not think
that because the article says that these circumstances are mitigating or
aggravating, that if the circumstance is present, the court will have to take
it as mitigating, if not mitigating, aggravating. That is wrong. It is only the circumstance of intoxication
which if not mitigating, is automatically aggravating. But the other circumstances, even if they are
present, but if they do not influence the crime, the court will not consider it
at all. Relationship may not be
considered at all, especially if it is not inherent in the commission of the
crime. Degree of instruction also will
not be considered if the crime is something which does not require an educated
person to understand.
Relationship
Relationship is
not simply mitigating or aggravating.
There are specific circumstances where relationship is exempting. Among such circumstances are:
1. In the case of an accessory who is related to the principal within the
relationship prescribed in Article 20;
2. Also in Article 247, a spouse does not incur criminal liability for a
crime of less serious physical injuries or serious physical injuries if this
was inflicted after having surprised the offended spouse or paramour or
mistress committing actual sexual intercourse.
3. Those commonly given in Article 332 when the crime of theft, malicious
mischief and swindling or estafa. There
is no criminal liability but only civil liability if the offender is related to
the offended party as spouse, ascendant, or descendant or if the offender is a
brother or sister or brother-in-law or sister-in-law of the offended party and
they are living together. Exempting
circumstance is the relationship. This
is an absolutory cause.
Sometimes,
relationship is a qualifying and not only a generic aggravating
circumstance. In the crime of qualified
seduction, the offended woman must be a virgin and less than 18 years old. But if the offender is a brother of the
offended woman or an ascendant of the offended woman, regardless of whether the
woman is of bad reputation, even if the woman is 60 years old or more, crime is
qualified seduction. In such a case,
relationship is qualifying.
Intoxication
This
circumstance is ipso facto mitigating, so that if the prosecution wants to deny
the offender the benefit of this mitigation, they should prove that it is
habitual and that it is intentional. The
moment it is shown to be habitual or intentional to the commission of the
crime, the same will immediately aggravating, regardless of the crime
committed.
Intoxication to
be considered mitigating, requires that the offender has reached that degree of
intoxication where he has no control of himself anymore. The idea is the offender, because of the
intoxication is already acting under diminished self-control. This is the rationale why intoxication is
mitigating. So if this reason is not
present, intoxication will not be considered mitigating. So the mere fact that the offender has taken
one or more cases of beer of itself does not warrant a conclusion that
intoxication is mitigating. There must
be an indication that because of the alcoholic intake of the offender, he is
suffering from diminished self-control.
There is diminished voluntariness insofar as his intelligence or freedom
of action is concerned. It is not the quantity of alcoholic drink. Rather it is
the effect of the alcohol upon the offender which shall be the basis of the
mitigating circumstance.
Illustration:
In a case,
there were two laborers who were the best of friends. Since it was payday, they
decided to have some good time and ordered beer. After drinking two cases of
beer they became more talkative until they engaged in an argument. One pulled
out a knife and stabbed the other. When arraigned, he invoked intoxication as a
mitigating circumstance.
Intoxication
does not simply mean that the offender has partaken of so much alcoholic beverages.
The intoxication in law requires that because of the quality of the alcoholic
drink taken, the offender had practically lost self control. So although the
offender may have partaken of two cases of beer, but after stabbing the victim
he hailed a tricycle and even instructed the driver to the place where he is
sleeping and the tricycle could not reach his house and so he has to alight and
walk to his house, then there is no diminished self control. The Supreme Court
did not acknowledge the mitigating circumstance because of the number of wounds
inflicted upon the victim. There were 11 stab wounds and this, the Supreme
Court said, is incompatible with the idea that the offender is already
suffering from diminished self control. On the contrary, the indication is that
the offender gained strength out of the drinks he had taken. It is not the
quantity of drink that will determine whether the offender can legally invoke
intoxication. The conduct of the offender, the manner of committing the crime,
his behavior after committing the crime must show the behavior of a man who has
already lost control of himself. Otherwise, intoxication cannot legally be
considered.
Degree of instruction and education
These are two
distinct circumstances. One may not have any degree of instruction but is
nevertheless educated. Example: A has been living with professionals for
sometime. She may just be a maid in the house with no degree of instruction but
she may still be educated.
It may happen
also that the offender grew up in a family of professionals, only he is the
black sheep because he did not want to go to school. But it does not follow
that he is bereft of education.
If the
offender, who did not go higher than Grade 3 was involved in a felony, was
invoking lack of degree of education, would this be considered as a mitigating
circumstance?. The Supreme Court held that although he did not receive
schooling, yet it cannot be said that he lacks education because he came from a
family of professionals. So he understands what is right or wrong.
The fact that
the offender did not have schooling and is illiterate does not mitigate his
liability if the crime committed is one which he inherently understands as
wrong, such as parricide. If a child would kill his or her parent, illiteracy
will not mitigate because the low degree of instruction has no bearing on the
crime.
In the same
manner, the offender may be a lawyer who committed rape. The fact that he has
knowledge of the law will not aggravate his liability, because such knowledge
has nothing to do with the commission of the crime. But if he committed
falsification and he used his special knowledge as a lawyer, then such will
serve to aggravate his criminal liability.
PERSONS WHO ARE CRIMINALLY LIABLE
Under the
Revised Penal Code, when more than one person participated in the commission of
the crime, the law looks into their participation because in punishing
offenders, the Revised Penal Code classifies them as:
(1) principal;
(2) accomplice; or
(3) accessory.
This
classification is true only under the Revised Penal Code and is not applied
under special laws, because the penalties under the latter are never graduated.
Do not use the term “principal” when the crime committed is a violation of
special law (use the term “offender”). Also, classify offenders only when more
than one took part in the commission of the crime to determine the proper
penalty to be imposed. So, if only one person committed a crime, do not say
“principal.” Use “the offenders,” “culprits,” or “the accused.”
When a problem
is encountered where there are several participants in the crime, the first
thing to find out is if there is a conspiracy.
If there is, as a general rule, the criminal liability of all will be
the same, because the act of one is the act of all.
However, if the participation of one is so insignificant, such that
even without his cooperation, the crime would be committed just as well, then
notwithstanding the existence of a conspiracy, such offender will be regarded
only as an accomplice. The reason for this ruling is that the law favors a
milder form of criminal liability if the act of the participant does not
demonstrate a clear criminal perversity.
As to the
liability of the participants in a felony, the Code takes into consideration
whether the felony committed is grave, less grave, or light.
When the felony
is grave, or less grave, all participants are criminally liable.
But where the
felony is only light, only the principal and the accomplice are liable. The
accessory is not.
But even the
principal and accomplice will not be liable if the felony committed is only
light and the same is not consummated unless such felony is against persons or
property. If they are not and the same is not consummated, even the principal and
the accomplice are not liable.
Therefore, it
is only when the light felony is against persons or property that criminal
liability attaches to the principal or accomplice, even though the felony is
only attempted or frustrated, but accessories are not liable for light
felonies.
Principal by indispensable cooperation distinguished from an accomplice
It is not just
a matter of cooperation, it is more of whether the crime could have been hardly
committed. It is not that the crime would not be committed because if that is
what you would imply, it becomes an ingredient of the crime and that is not
what the law contemplates.
In the case of
rape, where three men were accused, one was on top of the woman, one held the
hands, and one held the legs, the Supreme Court held that all participants are
principals. Those who held the legs and arms are principals by indispensable
cooperation.
The accused are
father and son. The father told his son that the only way to convince the
victim to marry him is to resort to rape. So when the opportunity came, the
young man grabbed the woman, threw her on the ground and placed himself on top
of her while the father held both legs of the woman and spread them. The
Supreme Court held that the father is liable only as an accomplice.
The focus is
not just on participation but on the importance of participation in committing
the crime.
In the first
situation, the facts indicate that if the fellow who held the legs of the
victim and spread them did not do so, the offender on top could hardly
penetrate because the woman was strong enough to move or resist. In the second
situation, the son was much bigger than the woman, so considering the strength
of the son and the victim, penetration is possible even without the assistance
of the father. The son was a robust farmer and the victim was undernourished.
The act of the father in holding the legs merely facilitated the penetration,
but even without it, the son would have succeeded in what he wanted to do.
The basis is
the importance of the cooperation to the consummation of the crime. If the
crime could hardly be committed without such cooperation, then such cooperation
would bring about a principal. But if the cooperation merely facilitated or
hastened the consummation of the crime, this would make the cooperator merely
an accomplice.
In a case, the
offender was running after the victim with a knife. Another fellow came and
blocked the way of the victim and as a result, the one chasing caught up with
the victim and stabbed the latter at the back. It was held that the fellow who
blocked the victim’s way is a principal by indispensable cooperation because if
he did not block the way, the offender could not have caught up with the
latter.
In another
case, A was mauling B. C, a friend of B tried to approach but D stopped C so
that A was able to continuously maul B. The liability of D is as an accomplice.
Obviously, he did not cooperate in the mauling, he only stopped C from rescuing
B in the hands of A.
In case of
doubt, favor the lesser penalty or liability. Apply the doctrine of pro reo.
Principal by inducement
Concept of
inducement—one strong enough that the person induced could not resist. This is
tantamount to an irresistible force compelling the person induced to carry out
the crime. Ill-advised language is not enough unless he who made such remark or
advice is a co-conspirator in the crime committed.
While in the
course of a quarrel, a person shouted to A, “Kill him! Kill him!” A killed the
other person. Is the person who shouted criminally liable? Is that inducement?
No. The shouting must be an irresistible force for the one shouting to be
liable.
There was a
quarrel between two families. One of the sons of family A came out with a
shotgun. His mother then shouted, “Shoot!” He shot and killed someone. Is the
mother liable? No.
Examples of
inducement:
“I
will give you a large amount of money”
“I will not
marry you if you do not kill B”
In People v.
Balderrama, Ernesto shouted to his younger brother Oscar, “Birahin mo na,
birahin mo na!” Oscar stabbed the victim. It was held that there was no
conspiracy. Joint or simultaneous action per se is not indicia of conspiracy
without showing of common design. Oscar has no rancor with the victim for him
to kill the latter. Considering that Ernesto had great moral ascendancy and
influence over Oscar, being much older (35 years old), than the latter, who was
18 years old, and it was Ernesto who provided his allowance, clothing, as well
as food and shelter, Ernesto is principal by inducement.
In People v.
Agapinay, 188 SCRA 812, the one who uttered “kill him, we will bury
him.” while the felonious aggression was taking place cannot be held liable as
principal by inducement. Utterance was said in the excitement of the hour, not
a command to be obeyed.
In People v.
Madall, 188 SCRA 69, the son was mauled. The family was not in good terms
with their neighbors. The father challenged everybody and when the neighbors
approached, he went home to get a rifle. The shouts of his wife “here comes
another, shoot him” cannot make the wife a principal by inducement. It is not
the determining cause of the crime in the absence of proof that the words had
great influence over the husband. Neither is the wife’s act of beaming the
victim with a flashlight indispensable to the killing. She assisted her husband
in taking good aim, but such assistance merely facilitated the felonious act of
shooting. Considering that it was not so dark and the husband could have
accomplished the deed without his wife’s help, and considering further that
doubts must be resolved in favor of the accused, the liability of the wife is
only that of an accomplice.
Accessories
Two situations
where accessories are not criminally liable:
1. When the felony committed is a light felony
2. When the accessory is related to the principal as spouse, or as an
ascendant, or descendant, or as brother or sister whether legitimate, natural
or adopted or where the accessory is a relative by affinity within the same
degree, unless the accessory himself profited from the effects or proceeds of
the crime or assisted the offender to profit therefrom.
One cannot be
an accessory unless he knew of the commission of the crime. One must not have
participated in the commission of the crime. The accessory comes into the
picture when the crime is already consummated. Anyone who participated before
the consummation of the crime is either a principal or an accomplice. He cannot
be an accessory.
When an
offender has already involved himself as a principal or accomplice, he cannot
be an accessory any further even though he performs acts pertaining to an
accessory.
Accessory as a fence
The Revised
Penal Code defines what manners
of
participation shall render an offender liable as an accessory. Among the
enumeration is “by profiting themselves or by assisting the offender to profit
by the effects of the crime.” So the accessory shall be liable for the same
felony committed by the principal. However, where the crime committed by the
principal was robbery or theft, such participation of an accessory brings about
criminal liability under Presidential Decree No. 1612 (Anti-Fencing Law). One
who knowingly profits or assists the principal to profit by the effects of
robbery or theft is not just an accessory to the crime, but principally liable
for fencing under PD 1612.
Any person who,
with intent to gain, acquires and/or sell, possesses, keeps, or in any manner
deals with any article of value which he knows or should be known to him to be
the proceeds of robbery or theft is considered a “fence” and incurs criminal
liability for “fencing” under said decree. The penalty is higher than that of a
mere accessory to the crime of robbery or theft.
Likewise, the
participation of one who conceals the effects pf robbery or theft gives rise to
criminal liability for “fencing”, not simply of an accessory under paragraph 2
of Article 19 of the Code. Mere possession of any article of value which has
been the subject of robbery or theft brings about the presumption of “fencing.”
Presidential
Decree No. 1612 has, therefore, modified Article 19 of the Revised Penal Code.
1.
May one who profited out of the proceeds of estafa
or malversation be prosecuted under the Anti-Fencing Law?
No. There is only a fence when the crime is
theft or robbery. If the crime is embezzlement or estafa, he is still an
accessory to the crime of estafa, not a fence.
2.
If principal committed robbery by snatching a
wristwatch and gave it to his wife to sell, is the wife criminally liable? Can
she be prosecuted as an accessory and as a fence?
The liability
of the wife is based on her assisting the principal profit and that act is
punishable as fencing. She will no longer be liable as an accessory to the
crime of robbery.
In both laws,
PD 1612 and the Revised Penal Code, the same act is the basis of liability and
you cannot punish a person twice for the same act as that would go against the
double jeopardy rule.
Acquiring the effects of piracy or brigandage
It is relevant
to consider in connection with the criminal liability of accessories under the
Revised Penal Code, the liability of persons acquiring property subject of
piracy or brigandage.
The act of
knowingly acquiring or receiving property which is the effect of the proceeds
of a crime generally brings about criminal liability of an accessory under
Article 19, paragraph 1 of the Revised Penal Code. But if the crime was piracy
or brigandage under Presidential Decree 532 (Anti-piracy and Anti-Highway
Robbery Law of 1974), said act constitutes the crime of abetting piracy or
abetting brigandage as the case may be, although the penalty is that for an
accomplice, not just an accessory, to the piracy or brigandage. To this end,
Section 4 of PD 532 provides that any person who knowingly and in any manner…
acquires or receives property taken by such pirates or brigands or in any
manner derives benefit therefrom… shall be considered as an accomplice of the
principal offenders in accordance with the Rules prescribed by the Revised
Penal Code.
It shall be
presumed that any person who does any acts provided in this Section has
performed them knowingly, unless the contrary is proven.
Although
Republic Act 7659, in amending Article 122 of the Revised Penal Code,
incorporated therein the crime of piracy in Philippine territorial waters and
thus correspondingly superseding PD 532, section 4 of said Decree, which
punishes said acts as a crime of abetting piracy or brigandage, still stands as
it has not been repealed nor modified, and is not inconsistent with any
provision of RA 7659.
Destroying the corpus delicti
When the crime
is robbery or theft, with respect to the second involvement of an accessory, do
not overlook the purpose which must be to prevent discovery of the crime.
The corpus
delicti is not the body of the person who is killed. Even if the corpse is not
recovered, as long as that killing is established beyond reasonable doubt,
criminal liability will arise and if there is someone who destroys the corpus
delicti to prevent discovery, he becomes an accessory.
Harboring or concealing an offender
In the third
form or manner of becoming an accessory, take note that the law distinguishes
between a public officer harboring, concealing, or assisting the principal to
escape and a private citizen or civilian harboring, concealing, or assisting
the principal to escape.
In the case of
a public officer, the crime committed by the principal is immaterial. Such
officer becomes an accessory by the mere fact that he helped the principal to
escape by harboring or concealing, making use of his public function and thus
abusing the same.
On the other
hand, in case of a civilian, the mere fact that he harbored, concealed, or
assisted the principal to escape does not ipso facto make him an accessory. The
law requires that the principal must have committed the crime of treason,
parricide, murder or attempt on the life of the Chief Executive. If this is not
the crime, the civilian does not become an accessory unless the principal is
known to be habitually guilty of some other crime. Even if the crime committed
by the principal is treason, or murder, or parricide, or attempt on the life of
the Chief Executive, the accessory cannot be held criminally liable without the
principal being found guilty of any such crime. Otherwise, the effect would be
that the accessory merely harbored or assisted in the escape of an innocent
man, if the principal is acquitted of the charges.
Illustration:
Crime committed
is kidnapping for ransom. Principal was being chased by soldiers. His aunt hid
him in the ceiling of her house and she told the soldiers that her nephew had
never visited her. When the soldiers left, the aunt even gave money to her
nephew for the latter to go to the province. Is the aunt criminally liable? No.
Article 20 does not include an aunt. However, this is not the reason. The
principal must have committed either treason, parricide, murder, or attempt on
the life of the Chief Executive, or that the principal is known to be
habitually guilty of some other crime, for a person who is not a public officer
and who assists an offender to escape or otherwise harbors, or conceals such
offender, to be criminally liable. In this case, the crime committed was
kidnapping.
The crime
committed by the principal is determinative of the liability of the accessory
who harbors or conceals, knowing that the crime is committed. If the person is
a public officer, the nature of the crime is immaterial. What is material is
that he used his public function is assisting the escape.
Although under
paragraph 3 of Article 19, the law specifies the crimes that should be
committed in case a civilian aids in the escape, there is a special law which
punishes the same act but does not specify a particular crime. Presidential
Decree 1829, which took effect on January 16, 1981 , penalizes acts commonly referred to as
“obstructions of justice”. This decree penalizes, under Section 1(c), the act,
inter alia, of “harboring or concealing, or facilitating the escape of any
person he knows or has reasonable ground to believe or suspect, has committed
any offense under existing penal laws in order to prevent his arrest,
prosecution and conviction.”
Under this law
(PD 1829), there is no specification of the crime to be committed by the
offender in order that criminal liability be incurred by private persons for
harboring, concealing or facilitating the escape of the offender, and the
offender need not even be the principal. Under PD 1829, a private individual
who assists in the escape of an offender of any crime is no longer an accessory.
He is simply an offender without regard to the crime of the person assisted to
escape. So in the problem, the aunt is not criminally liable under the Revised
Penal Code because the crime is kidnapping, but under PD 1829.
Whether the
accomplice and the accessory may be tried and convicted even before the
principal is found guilty
There is an
earlier Supreme Court ruling that the accessory and accomplice must be charged
together with the principal and that if the latter is acquitted, the accomplice
and accessory shall also not be criminally liable, unless the acquittal is
based on a defense which is personal only to the principal.
Although this
ruling may be correct if the facts charged do not make the principal criminally
liable at all because there is no crime committed, this is not true in all
cases. It is not always true that the accomplice and accessory cannot be
criminally liable without the principal being first convicted. Under Rule 110
of the Revised Rules on Criminal Procedure, it is required that all those
involved in the commission of the crime must be included in the information
that may be filed. And in filing an information against the person involved in
the commission of a crime, the law does not distinguish between principal,
accomplice, and accessory. All will be accused and whether a certain accused
will be principal, accomplice, or accessory will depend on what the evidence
would show. In other words, the liability of the accused will depend on the
quantum of evidence adduced by the prosecution against the particular accused.
But the prosecution must initiate the proceedings against the principal.
Even if the
principal is convicted, if the evidence presented against a supposed accomplice
or accessory does not meet the required proof beyond reasonable doubt, then
said accused will be acquitted. So the criminal liability of an accomplice or
accessory does not depend on the criminal liability of the principal but
depends on the quantum of evidence. But if the evidence shows that the act done
does not constitute a crime and the principal is acquitted, then the supposed
accomplice and accessory should also be acquitted. If there is no crime, then
there is no criminal liability, whether principal, accomplice, or accessory.
Under paragraph
3, Article 19, take note that before the civilian can be held liable as an
accessory in assisting the escape of an offender of the particular crimes
specified, the principal must first be found guilty of the crime charged,
either treason, parricide, murder, or attempt on the life of the Chief
Executive. If the principal is acquitted, the civilian who harbored, concealed,
or assisted in the escape did not violate Article 19. That is as far as the
Revised Penal Code is concerned. But not PD 1829. This special law does not
require that there be prior conviction. It is a malum prohibitum, no need for
guilt, or knowledge of the crime.
In Taer v.
CA, accused received from his co-accused two stolen male carabaos.
Conspiracy was not proven. Taer was held liable as an accessory in the crime of
cattle-rustling under PD 533. [Taer should have been liable for violation of
the Anti-Fencing Law since castle-rustling is a form of theft or robbery of
large cattle, except that he wasn’t charged with fencing.]
In Enrile v.
Amin, a person charged with rebellion should not be separately charged
under PD 1829. The theory of absorption must not confine itself to common
crimes but also to offenses punished under special laws which are perpetrated
in furtherance of the political offense.
PENALTIES
Measures of prevention not considered as penalty
The following
are the measures of prevention or safety which are not considered penalties under
Article 24:
(1) The
arrest and temporary detention of accused persons as well as their detention by
reason of insanity or imbecility or illness requiring their confinement in a
hospital.
(2) The
commitment of a minor to any of the institutions mentioned in Art. 80 for the
purposes specified therein.
(3) Suspension
from the employment or public office during the trial or in order to institute
proceedings.
(4) Fines
and other corrective measures which, in the exercise of their administrative
disciplinary powers, superior officials may impose upon their subordinates.
(5) Deprivation
of rights and reparations which the civil laws may establish in penal form.
Why does the
Revised Penal Code specify that such detention shall not be a penalty but
merely a preventive measure?
This article
gives justification for detaining the accused. Otherwise, the detention would
violate the constitutional provision that no person shall be deprived of life,
liberty and property without due process of law and also, the constitutional
right of an accused to be presumed innocent until the contrary is proved.
Repeal of Article 80
When may a
minor be committed to a reformatory?
If the minor is
between 9-15 years old and acted with discernment, sentence must first be
suspended under the following conditions:
(1) Crime
committed is not punishable by death or reclusion perpetua;
(2) He is
availing of the benefit of suspension for the first time;
(3) He must
still be a minor at the time of promulgation of the sentence.
Correlating Article
24 with Article 29
Although under
Article 24, the detention of a person accused of a crime while the case against
him is being tried does not amount to a penalty, yet the law considers this as
part of imprisonment and generally deductible from the sentence.
When will this
credit apply? If the penalty imposed consists of a deprivation of liberty. Not
all who have undergone preventive imprisonment shall be given credit.
Under Article
24, preventive imprisonment of an accused who is not yet convicted is not a
penalty. Yet Article 29 provides that if the accused is ultimately convicted
and the penalty imposed involves deprivation of liberty, the period during
which he had undergone preventive detention will be deducted from the sentence,
unless he is one of those disqualified under the law.
So, if the
accused has actually undergone preventive imprisonment, but if he has been
convicted of two or more crimes whether or not he is a recidivist, or when he
has been previously summoned but failed to surrender and so the court has to
issue a warrant for his arrest, whatever credit he is entitled to shall be
forfeited.
If the offender
is not disqualified from the credit or deduction provided for in Article 29 of
the Revised Penal Code, then the next thing to determine is whether he signed
an undertaking to abide by the same rules and regulations governing convicts.
If he signed, then it means that while he is suffering from preventive
imprisonment, he is suffering like a convict. That is why the credit is full.
But if the
offender did not sign an undertaking, then he will only be subjected to the
rules and regulations governing detention prisoners. As such, he will only be
given 80% or 4/5 of the period of his preventive detention.
From this
provision, one can see that the detention of the offender may subject him only
to the treatment applicable to convicts, but since he is not convicted yet,
while he is under preventive imprisonment, he cannot be subjected to the
treatment applicable to convicts unless he signs and agrees to be subjected to
such disciplinary measures applicable to convicts.
Detention
prisoner has more freedom within the detention institution rather than those
already convicted. The convicted prisoner suffers more restraints and hardship
than detention prisoners.
Under what
circumstances may a detention prisoner be released, even though the proceedings
against him are not yet terminated?
Article 29 was
amended by a Batas Pambansa that took effect on September 20, 1980 . This amendment is found in
the Rules of Court, under the rules on bail in Rule 114.
In the
amendment, the law does not speak of credit. Whether the person is entitled to
credit is immaterial. The discharge of the offender from preventive
imprisonment or detention is predicated on the fact that even if he would be
found guilty of the crime charged, he has practically served the sentence
already, because he has been detained for a period already equal if not greater
than the maximum penalty that would be possibly imposed on him if found guilty.
If the crime
committed is punishable only by destierro, the most the offender may be held
under preventive imprisonment is 30 days, and whether or not the proceedings
are terminated, such detention prisoner shall be discharged.
Understand the
amendment made to Article 29. This amendment has been incorporated under Rule
114 precisely to do away with arbitrary detention.
Proper petition
for habeas corpus must be filed to challenge the legality of the detention of
the prisoner.
If the offender
has already been released, what is the use of continuing the proceedings?
The proceedings
will determine whether or not the accused is liable. If he is criminally
liable, it follows that he is also civilly liable. The civil liability must be
determined. That is why the trial must go on.
DURATION OF PENALTIES
Reclusion Perpetua
What is the
duration of reclusion perpetua?
Do not use
Article 27 in answering this question. The proper answer would be that
reclusion perpetua has no duration because it is an indivisible penalty and
indivisible penalties have no duration.
Under Article
27, those sentenced to reclusion perpetua shall be pardoned after undergoing
the penalty for 30 years, unless such person, by reason of his conduct or some
other serious cause, shall be considered by the Chief Executive as unworthy of
pardon.
Under Article
70 (the Three-Fold Rule), the maximum period shall in no case exceed 40 years.
If the convict who is to serve several sentences could only be made to serve 40
years, with more reason that one who is sentenced to a single penalty of
reclusion perpetua should not serve for more than 40 years.
The duration of
40 years is not a matter of provision of law; this is only by analogy. There is
no provision of the Revised Penal Code that one sentenced to reclusion perpetua
cannot be held in jail for 40 years and neither is there a decision to this
effect.
Destierro
What
is the duration of destierro?
The duration of
destierro is from 6 months and 1 year to 6 years, which is the same as that of
prision correccional and suspension. Destierro is a principal penalty. It is a
punishment whereby a convict is banished from a certain place and is prohibited
from entering or coming near that place designated in the sentence for not less
than 25 kilometers. However, the court cannot extend beyond 250 kms. If the convict
should enter the prohibited places, he commits the crime of evasion of service
of sentence under Article 157. But if the convict himself would go further from
which he is banished by the court, there is no evasion of service of sentence
because the 250km limit is upon the authority of the court in banishing the
convict.
Under the
Revised Penal Code, destierro is the penalty imposed in the following
situations:
(1) When a
legally married person who had surprised his or her spouse in the act of sexual
intercourse with another and while in that act or immediately thereafter should
kill or inflict serious physical injuries upon the other spouse, and/or the
paramour or mistress. This is found in Article 247.
(2) In the
crimes of grave threats and/or light threats, when the offender is required to
put up a bond for good behavior but failed or refused to do so under Article
248, such convict shall be sentenced with destierro so that he would not be
able to carry out his threat.
(3) In the
crime of concubinage, the penalty prescribed for the concubine is destierro
under Article 334.
(4) Where
the penalty prescribed by law is arresto mayor, but the offender is entitled to
privileged mitigating circumstances and, lowering the prescribed penalty by one
degree, the penalty becomes destierro. Thus it shall be the one imposed.
Civil Interdiction
Civil
interdiction is an accessory penalty. Civil interdiction shall deprive the
offender during the time of his sentence:
(1) The
rights of parental authority, or guardianship either as to the person or
property of any ward;
(2) Marital
authority;
(3) The
right to manage his property; and
(4) The
right to dispose of such property by any act or any conveyance inter vivos.
Can a convict
execute a last will and testament? YES.
Thank you for making this site and for sharing you knowledge! This is actually a big help for me. God bless u! -Al SN
TumugonBurahin