circumstances

JUSTIFYING CIRCUMSTANCES
Self-Defense
Art. 11
I. Justifying Circumstances.
1. Definition
Justifying circumstances are those where the act of
a person is said to be in accordance with law, so that such
person is deemed not to have transgressed the law and is
free from both criminal and civil liability.
There is no civil liability, except in par. 4 of Art. 11,
where the civil liability is borne by the persons benefited
by the act.
2. Basis of justifying circumstances.
The law recognizes the non-existence of a crime by
expressly stating in the opening sentence of Article 11 that
the persons therein mentioned "do not incur any criminal
liability."
Art. 11. Justifying circumstances. — The following do not
incur any criminal liability:
1. Anyone w h o a c t s i n d e f e n s e of h i s p e r s o n or rights,
provided that t h e f o l l o w i n g c i r c u m s t a n c e s concur:
First. Unlawful aggression;
Second. Reasonable n e c e s s i t y of t h e means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself.
2. Anyone who acts in defense of t h e person or rights of
his spouse, ascendants, descendants, or legitimate, natural, or
adopted brothers or sisters, or of h i s relatives by affinity in the
same degrees, and those by consanguinity w i t h in the fourth civil
degree, provided that t h e f i r s t a n d second requisites prescribed
in t h e next preceding circumstance are present, and the further
requisite, in case the provocation was given by the person attacked,
that the one making defense had no part therein.
3. Anyone who acts in defense of t h e person or rights
of a stranger, provided that the first and second requisites
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mentioned in t h e first circumstance of t h i s article are present
and that the person defending be not induced by revenge,
resentment or other evil motive.
4. Any p e r s o n who, in order t o a v o i d an evil or injury,
does an act w h i c h c a u s e s damage t o another, provided that
the following r e q u i s i t e s are present:
First. That t h e evil sought to be avoided actually exists;
Second. That t h e injury f e a r e d be greater t h a n that done
to avoid it.
Third. That t h e r e be no o t h e r practical and l e s s harmful
means of p r e v e n t i n g it.
5. Any p e r s o n w h o a c t s in t h e fulfillment of a duty or
in t h e lawful e x e r c i s e of a right or office.
6. Any p e r s o n w h o a c t s i n o b e d i e n c e t o a n order i s s u ed
by a superior for some lawful purpose.
There is no crime committed, the act being justified.
In stating that the persons mentioned therein "do not incur any
criminal liability," Article 11 recognizes the acts of such persons as
justified. Such persons are not criminals, as there is no crime committed.
Burden of proof.
The circumstances mentioned in Art. 11 are matters of defense
and it is incumbent upon the accused, in order to avoid criminal liability,
to prove the justifying circumstance claimed by him to the
satisfaction of the court.
Self-defense.
Well-entrenched is the rule that where the accused invokes selfdefense,
it is incumbent upon him to prove by clear and convincing
evidence that he indeed acted in defense of himself. He must rely
on the strength of his own evidence and not on the weakness of the
prosecution. For, even if the prosecution evidence is weak, it could
not be disbelieved after the accused himself had admitted the killing.
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(People vs. Sazon, G.R. No. 89684, Sept. 18,1990,189 SCRA 700,704;
People vs. Rey, G.R. No. 80089, April 13, 1989, 172 SCRA 149, 156;
People vs. Ansoyon, 75 Phil. 772, 777)
Self-defense, must be proved with certainty by sufficient,
satisfactory and convincing evidence that excludes any vestige of
criminal aggression on the part of the person invoking it and it cannot
be justifiably entertained where it is not only uncorroborated by any
separate competent evidence but, in itself, is extremely doubtful.
(People vs. Mercado, No. L-33492, March 30, 1988, 159 SCRA 453,
458; People vs. Lebumfacil, Jr., No. L-32910, March 28, 1980, 96
SCRA 573, 584)
In self-defense, the burden of proof rests upon the accused. His
duty is to establish self-defense by clear and convincing evidence,
otherwise, conviction would follow from his admission that he killed
the victim. He must rely on the strength of his own evidence and not
on the weakness of that for the prosecution. (People vs. Clemente,
G.R. No. L-23463, September 28, 1967, 21 SCRA 261; People vs.
Talaboc, Jr., G.R. No. L-25004, October 31,1969,30 SCRA 87; People
vs. Ardisa, G.R. No. L-29351, January 23,1974,55 SCRA 245; People
vs. Montejo, No. L-68857, Nov. 21, 1988, 167 SCRA 506, 512; People
vs. Corecor, No. L-63155, March 21, 1988, 159 SCRA 84, 87)
The plea of self-defense cannot be justifiably entertained where it
is not only uncorroborated by any separate competent evidence but in
itself is extremely doubtful. (People vs. Flores, L-24526, February 29,
1972,43 SCRA 342; Ebajan vs. Court of Appeals, G.R. Nos. 77930-31,
Feb. 9, 1989, 170 SCRA 178, 189; People vs. Orongan, No. L-32751,
Dec. 21,1988,168 SCRA 586, 597-598; People vs. Mendoza, [CA] 52
O.G. 6233)
Par. 1. - SELF-DEFENSE.
Anyone who acts in defense of his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself.
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Rights included in self-defense.
Self-defense includes not only the defense of the person or body
of the one assaulted but also that of his rights, that is, those rights
the enjoyment of which is protected by law.
"Aside from the right to life on which rests the legitimate defense
of our person, we have the right to property acquired by us, and the
right to honor which is not the least prized of man's patrimony." (1
Viada, 172, 173, 5th edition)
Reason why penal law makes self-defense lawful.
Because it would be quite impossible for the State in all cases to
prevent aggression upon its citizens (and even foreigners, of course)
and offer protection to the person unjustly attacked. On the other
hand, it cannot be conceived that a person should succumb to an
unlawful aggression without offering any resistance. (Guevara)
The law on self-defense embodied in any penal system in the
civilized world finds justification in man's natural instinct to protect,
repel, and save his person or rights from impending danger or peril; it
is based on that impulse of self-preservation born to man and part of
his nature as a human being. To the Classicists in penal law, lawful
defense is grounded on the impossibility on the part of the State to
avoid a present unjust aggression and protect a person unlawfully
attacked, and therefore it is inconceivable for the State to require that
the innocent succumb to an unlawful aggression without resistance,
while to the Positivists, lawful defense is an exercise of a right, an act
of social justice done to repel the attack of an aggression. (Castanares
vs. Court of Appeals, Nos. L-41269-70, Aug. 6, 1979, 92 SCRA 567,
571-572; People vs. Boholst-Caballero, No. L-23249, Nov. 25, 1974,
61 SCRA 180, 185)
Requisites of self-defense.
There are three requisites to prove the claim of self-defense as
stated in paragraph 1 of Article 11 of the Revised Penal Code, namely:
(1) unlawful aggression; (2) reasonable necessity of the means employed
to prevent or repel it; and (3) lack of sufficient provocation on
the part of the person defending himself. (People vs. Uribe, G.R. Nos.
76493-94, Feb. 26,1990, 182 SCRA 624, 630-631; People vs. Delgado,
G.R. No. 79672, Feb. 15, 1990, 182 SCRA 343, 349-350; People vs.
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Batas, G.R. Nos. 84277-78, Aug. 2, 1989, 176 SCRA 46, 53; People
vs. Canete, G.R. No. 82113, July 5,1989,175 SCRA 111, 116; People
vs. Bayocot, G.R. No. 55285, June 28, 1989, 174 SCRA 285, 291)
First requisite of self-defense.
The first requisite of self-defense is that there be unlawful
aggression on the part of the person injured or killed by the
accused.
Unlawful aggression is an indispensable requisite.
It is a statutory and doctrinal requirement that for the justifying
circumstance of self-defense, the presence of unlawful aggression is
a condition sine qua non. There can be no self-defense, complete or
incomplete, unless the victim has committed an unlawful aggression
against the person defending himself. (People vs. Sazon, G.R. No.
89684, Sept. 18, 1990, 189 SCRA 700, 704; People vs. Bayocot, G.R.
No. 55285, June 28,1989,174 SCRA 285,291, citing Ortega vs. Sandiganbayan,
G.R. No. 57664, Feb. 8, 1989, 170 SCRA 38; Andres vs.
CA, No. L-48957, June 23,1987,151 SCRA 268; People vs. Picardal,
No. 72936, June 18, 1987, 151 SCRA 170; People vs. Apolinario, 58
Phil. 586)
For the right of defense to exist, it is necessary that we be
assaulted or that we be attacked, or at least that we be threatened
with an attack in an immediate and imminent manner, as, for
example, brandishing a knife with which to stab us or pointing a gun
to discharge against us. (1 Viada, 5 edicion, 173, p. 3275)
If there is no unlawful aggression, there is nothing to prevent
or repel. The second requisite of defense will have no basis.
In the case of People vs. Yuman, 61 Phil. 786, this rule was
explained, as follows:
"The act of mortally wounding the victim has not been
preceded by aggression on the part of the latter. There is
no occasion to speak of 'reasonable necessity of the means
employed' or of 'sufficient provocation' on the part of one
invoking legitimate self-defense, because both circumstances
presuppose unlawful aggression which was not present in the
instant case." (p. 788)
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Aggression must be unlawful.
The first requisite of defense says that the aggression must be
unlawful.
There are two kinds of aggression: (1) lawful, and (2) unlawful.
The fulfillment of a duty or the exercise of a right in a more or
less violent manner is an aggression, but it is lawful.
Thus, the act of a chief of police who used violence by throwing
stones at the accused when the latter was running away from him to
elude arrest for a crime committed in his presence, is not unlawful
aggression, it appearing that the purpose of the peace officer was to
capture the accused and place him under arrest. (People vs. Gayrama,
60 Phil. 796, 805)
So also, is the act of a policeman who, after firing five cautionary
shots into the air, aimed directly at the escaping detainee when he
had already reasons to fear that the latter would be able to elude
him and his pursuing companions. (Valcorza vs. People, No. L-28129,
Oct. 31, 1969, 30 SCRA 143, 149; See also Masipequiha vs. Court of
Appeals, G.R. No. 51206, Aug. 25, 1989, 176 SCRA 699, 708)
Article 249 of the new Civil Code provides that "(t)he owner or
lawful possessor of a thing has the right to exclude any person from
the enjoyment and disposal thereof. For this purpose, he may use
such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property."
Thus, under the new Civil Code a person may use force or
violence to protect his property; and if in protecting his property such
person uses force to prevent its being taken by another, the owner
of the property is not an unlawful aggressor, because he is merely
exercising a right.
Paramour surprised in the act of adultery cannot invoke selfdefense
if he killed the offended husband who was assaulting
him.
In a case, the Supreme Court, in denying the paramour's plea
of self-defense, said: "(E)ven though it were true and even if the
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deceased did succeed in entering the room in which the accused
(the paramour and the wife of the deceased) were lying, and did
immediately thereupon assault (the paramour), giving him several
blows with the bolo which (the deceased) carried, that assault was
natural and lawful, for the reason that it was made by a deceived
and offended husband in order to defend his honor and rights by
punishing the offender of his honor, and if he had killed his wife
and (the paramour), he would have exercised a lawful right and
such acts would have fallen within the sanction of Article 423 (now
Art. 247) of the Penal Code . . . The (paramour) well knew that by
maintaining unlawful relations with (the deceased's wife), he was
performing an unlawful and criminal act and exposed himself to the
vengeance of the offended husband, and that, by their meeting each
other in the said house, he was running the danger of the latter's
surprising them there, as in fact it did occur." (U.S. vs. Merced, 39
Phil. 198, 202-203)
Meaning of unlawful aggression.
Unlawful aggression is equivalent to assault or at least
threatened assault of an immediate and imminent kind. (People vs.
Alconga, 78 Phil. 366) There is unlawful aggression when the peril to
one's life, limb or right is either actual or imminent. There must be
actual physical force or actual use of weapon. (People vs. Crisostomo,
No. L-38180, Oct. 23, 1981, 108 SCRA 288, 298)
There must be an actual physical assault upon a person, or at
least a threat to inflict real injury.
In case of threat, the same must be offensive and positively
strong, showing the wrongful intent to cause an injury. (U.S. vs.
Guysayco, 13 Phil. 292, 295)
Unlawful aggression presupposes an actual, sudden, and
unexpected attack, or imminent danger thereof, and not merely a
threatening or intimidating attitude. (People vs. Pasco, Jr., No. L-
45715, June 24, 1985, 137 SCRA 137; People vs. Bayocot, G.R. No.
55285, June 28, 1989, 174 SCRA 285, 292; People vs. Rey, G.R. No.
80089, April 13, 1989, 172 SCRA 149, 156)
Unlawful aggression refers to an attack that has actually broken
out or materialized or at the very least is clearly imminent; it cannot
consist in oral threats or a merely threatening stance or posture.
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(People vs. Lachica, 132 SCRA 230 [1984]; People vs. Tac-an, G.R.
Nos. 76338-39, Feb. 26, 1990, 182 SCRA 601, 613) There must be a
real danger to life or personal safety. (People vs. Cagalingan, G.R.
No. 79168, Aug. 3, 1990, 188 SCRA 313, 318)
There is unlawful aggression when the peril to one's life, limb
(People vs. Sumicad, 56 Phil. 643, 647), or right is either actual or
imminent.
When there is no peril to one's life, limb or right, there is no unlawful
aggression.
Thus, the act of the deceased in preventing the accused from
inflicting a retaliatory blow on the person who had boxed the
accused is not unlawful aggression. (People vs. Flores, C.A., 47
O.G. 2969)
Where the deceased, after kidding the accused, another
Constabulary soldier acting as sentry and singing, told the latter
that he had no voice for singing and, after words were exchanged
and while still in a spirit of fun, the deceased seized the accused by
the throat, whereupon the latter killed the deceased with his rifle,
it was held that the fact that the deceased seized the accused by the
throat and exerted pressure thereon in one of his frolics which he
had persistently kept up with notorious imprudence, and in spite
of the opposition of the accused, cannot be considered as an illegal
aggression in the case of two companions in arms quartered in the
same barracks. (U.S. vs. Padilla, 5 Phil. 396)
Where the deceased merely held the hands of the son of the
accused to request him (the son) to release the knife in order that
nothing untoward might happen, but he refused to do so, and in order
to avoid bloodshed, the deceased tried to wrest the knife from him
and in so doing pressed him against a coconut tree, without the least
intention of harming him, the father was not justified in killing the
deceased, because there was no unlawful aggression on the part of
the latter. (People vs. Yncierto, C.A., 44 O.G. 2774)
Peril to one's life.
1. Actual — that the danger must be present, that is, actually
in existence.
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Example:
U.S. vs. Jose Laurel
(22 Phil. 252)
Facts: On the night of December 26, 1909, while the girl Concepcion
Lat was walking along the street, on her way from the house
of Exequiel Castillo, situated in the pueblo of Tanauan, Province of
Batangas, accompanied by several young people, she was approached
by Jose Laurel who suddenly kissed her and immediately thereafter
ran off in the direction of his house, pursued by the girl's companions,
among whom was the master of the house above-mentioned, Exequiel
Castillo, but they did not overtake him.
Early in the evening of the 28th of December, Jose Laurel went
to the parochial building, in company with several young people, for
the purpose of attending an entertainment which was to be held there.
While sitting in the front row of chairs, and while the director of the
college was delivering a discourse, Jose Laurel was approached by
Domingo Panganiban who told him that Exequiel Castillo wished to
speak with him, to which Laurel replied that he should wait a while
and thereupon Panganiban went away. A short time afterwards, he
was also approached by Alfredo Yatco who gave him a similar message,
and soon afterwards Felipe Almeda came up and told him that
Exequiel Castillo was waiting for him on the groundfloor of the house.
This being the third summons addressed to him, he arose and went
down to ascertain what the said Exequiel wanted. When they met,
Exequiel asked Laurel why he kissed his (Exequiel's) sweetheart, and
on Laurel's replying that he had done so because she was very fickle
and prodigal of her use of the word "yes" on all occasions, Exequiel said
to him that he ought not to act that way and immediately struck him a
blow on the head with a cane or club, which assault made Laurel dizzy
and caused him to fall to the ground in a sitting posture and that, as
Laurel feared that his aggressor would continue to assault him, he
took hold of the pocketknife which he was carrying in his pocket and
therewith stabbed Exequiel. Among the wounds inflicted on Exequiel,
the wound in the left side of his breast was the most serious on account
of its having fully penetrated the lungs and caused him to spit blood.
He would have died, had it not been for the timely medical aid rendered
him.
Held: The defensive act executed by Jose Laurel was attended by
the three requisites of illegal aggression on the part of Exequiel Castillo,
there being lack of sufficient provocation on the part of Laurel, who
did not provoke the occurrence complained of, nor did he direct that
Exequiel Castillo be invited to come down from the parochial building
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and arrange the interview in which Castillo alone was interested, and,
finally, because Laurel, in defending himself with a pocketknife against
the assault made upon him with a cane, which may also be a deadly
weapon, employed reasonable means to prevent or repel the same.
2. Imminent — that the danger is on the point of happening.
It is not required that the attack already begins, for it may
be too late.
Example:
People vs. Cabungcal
(51 Phil. 803)
Facts: On March 21,1926, the accused invited several persons to
a picnic in a fishery on his property in the barrio of Misua, municipality
of Infanta, Province of Tayabas. They spent the day at said fishery
and in the afternoon returned in two boats, one steered by the accused
and the other by an old woman named Anastacia Penaojas. Nine
persons were in the boat steered by the accused, the great majority
of whom were women, and among them the accused's wife and son
and a nursing child, son of a married couple, who had also gone in
his boat. The deceased Juan Loquenario was another passenger in
his boat. Upon reaching a place of great depth, the deceased rocked
the boat which started it to take water, and the accused, fearing the
boat might capsize asked the deceased not to do it. As the deceased
paid no attention to this warning and continued rocking the boat, the
accused struck him on the forehead with an oar. The deceased fell
into the water and was submerged, but a little while after appeared
on the surface having grasped the side of the boat, saying that he
was going to capsize it and started to move it with this end in view,
seeing which the women began to cry, whereupon the accused struck
him on the neck with the same oar, which submerged the deceased
again. The deceased died as a consequence.
Held: Due to the condition of the river at the point where the
deceased started to rock the boat, if it had capsized, the passengers
would have run the risk of losing their lives, the majority of whom
were women, especially the nursing child. The conduct of the deceased
in rocking the boat until the point of it having taken water and his
insistence on this action in spite of the accused's warning, gave rise
to the belief on the part of the accused that it would capsize if he did
not separate the deceased from the boat in such a manner as to give
him no time to accomplish his purpose. It was necessary to disable
him momentarily. For this purpose, the blow given him by the accused
on the forehead with an oar was the least that could reasonably have
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been done. And this consideration militates with greater weight with
respect to the second blow given in his neck with the same oar, because
then the danger was greater than the boat might upset, especially as
the deceased had expressed his intention to upset it.
Although the case involves defense of relatives and at the same
time defense of strangers, it is cited here because unlawful aggression
is also a requisite in defense of relatives and in defense of strangers
and has the same meaning.
Peril to one's limb.
When a person is attacked, he is in imminent danger of death
or bodily harm.
The blow with a deadly weapon may be aimed at the vital parts
of his body, in which case there is danger to his life; or with a less
deadly weapon or any other weapon that can cause minor physical
injuries only, aimed at other parts of the body, in which case, there
is danger only to his limb.
The peril to one's limb may also be actual or only imminent.
Peril to one's limb includes peril to the safety of one's person
from physical injuries.
An attack with fist blows may imperil one's safety from physical
injuries. Such an attack is unlawful aggression. (People vs. Montalbo,
56 Phil. 443)
There must be actual physical force or actual use of weapon.
The person defending himself must have been attacked with
actual physical force or with actual use of weapon.
Thus, insulting words addressed to the accused, no matter
how objectionable they may have been, without physical assault,
could not constitute unlawful aggression. (U.S. vs. Carrero, 9 Phil.
544)
A light push on the head with the hand does not constitute
unlawful aggression. (People vs. Yuman, 61 Phil. 786) A mere
push or a shove, not followed by other acts, does not constitute
unlawful aggression. (People vs. Sabio, G.R. No. L-23734, April
27, 1967)
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But a slap on the face is an unlawful aggression. Two persons
met in the street. One slapped the face of the other and the latter
repelled it by clubbing him and inflicting upon him less serious
physical injury. Held: The act of slapping another constituted the
use of force qualifying an unlawful aggression. (Decision of the
Supreme Court of Spain of January 20, 1904; People vs. Roxas, 58
Phil. 733)
Reason why slap on the face constitutes unlawful aggression.
Since the face represents a person and his dignity, slapping it
is a serious personal attack. It is a physical assault coupled with a
willful disregard, nay, a defiance, of an individual's personality. It
may, therefore, be frequently regarded as placing in real danger a
person's dignity, rights and safety. (People vs. Sabio, G.R. No. L-23734,
April 27, 1967)
Mere belief of an impending attack is not sufficient.
Mere belief of an impending attack is not sufficient. Neither is
an intimidating or threatening attitude. Even a mere push or shove
not followed by other acts placing in real peril the life or personal
safety of the accused is not unlawful aggression. (People vs. Bautista,
254 SCRA 621)
"Foot-kick greeting" is not unlawful aggression.
Teodoro Sabio was squatting with a friend, Irving Jurilla, in a
plaza. Romeo Bacobo and two others — Ruben Minosa and Leonardo
Garcia — approached them. All of them were close and old friends.
Romeo Bacobo then asked Sabio where he spent the holy week. At
the same time, he gave Sabio a "foot-kick greeting," touching Sabio's
foot with his own left foot. Sabio thereupon stood up and dealt Romeo
Bacobo a fist blow, inflicting upon him a lacerated wound, 3/4 inch
long, at the upper lid of the left eye. It took from 11 to 12 days to
heal and prevented Romeo Bacobo from working during said period
as employee of Victorias Milling Co., Inc.
Held: A playful kick at the foot by way of greeting between
friends may be a practical joke, and may even hurt; but it is not a
serious or real attack on a person's safety. It may be a mere slight
provocation. (People vs. Sabio, 19 SCRA 901)
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No unlawful aggression, because there was no imminent and
real danger to the life or limb of the accused.
If, indeed, Rillamas did take hold of the barrel of appellant's rifle
or even tried to grab it, we do not believe it was justified for appellant
"to remove the safety lock and fire" his weapon. In their relative
positions, appellant had more freedom of action than the deceased
who was sandwiched among the three other passengers within the
small area of the calesa in which they were. In other words, between
the two of them, appellant had the better chance to win in the struggle
for the rifle. (People vs. Riduca, No. L-26729, Jan. 21,1974, 55 SCRA
190, 199)
True, the deceased acted rather belligerently, arrogantly, and
menacingly at the accused-appellant, but such behavior did not give
rise to a situation that actually posed a real threat to the life or safety
of accused-appellant. The peril to the latter's life was not imminent
and actual. To constitute unlawful aggression, it is necessary that an
attack or material aggression, an offensive act positively determining
the intent of the aggressor to cause an injury shall have been made.
(People vs. Macaso, No. L-30489, June 30, 1975, 64 SCRA 659, 665-
666)
A strong retaliation for an injury or threat may amount to an
unlawful aggression.
When a person who was insulted, slightly injured or threatened,
made a strong retaliation by attacking the one who gave the insult,
caused the slight injury or made the threat, the former became the
offender, and the insult, injury or threat should be considered only as
a provocation mitigating his liability. (U.S. vs. Carrero, 9 Phil. 544)
In this case, there is no self-defense.
Retaliation is not self-defense.
Retaliation is different from an act of self-defense. In retaliation,
the aggression that was begun by the injured party already ceased to
exist when the accused attacked him. In self-defense, the aggression
was still existing when the aggressor was injured or disabled by the
person making a defense.
Thus, when a person had inflicted slight physical injuries on
another, without intention to inflict other injuries, and the latter
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attacked the former, the one making the attack was an unlawful
aggressor. The attack made was a retaliation. But where a person is
about to strike another with fist blows and the latter, to prevent or
repel the blows, stabs the former with a knife, the act of striking with
fist blows is an unlawful aggression which may justify the use of the
knife. If the knife is a reasonable means, there is self-defense.
The attack made by the deceased and the killing of the
deceased by defendant should succeed each other without
appreciable interval of time.
In order to justify homicide on the ground of self-defense, it
is essential that the killing of the deceased by the defendant be
simultaneous with the attack made by the deceased, or at least both
acts succeeded each other without appreciable interval of time. (U.S.
vs. Ferrer, 1 Phil. 56)
When the killing of the deceased by the accused was after the attack
made by the deceased, the accused must have no time nor occasion for
deliberation and cool thinking.
The deceased drew his revolver and levelled it at the accused
who, sensing the danger to his life, sidestepped and caught the hand
of the deceased with his left, thus causing the gun to drop to the floor.
Immediately, the accused drew his knife, opened it and stabbed the
deceased in the abdomen.
The fact that when the accused held the right hand of the
deceased, which carried the gun, the weapon fell to the floor could
not be taken to mean that the unlawful aggression on the part of the
deceased had ceased. The incident took place at nighttime in the house
of a relative of the deceased; among those present were a brother
and a cousin of the deceased, said cousin having a criminal record;
and the deceased himself had been indicted for illegal possession of
firearm and for discharge of firearm. Under such circumstances, the
accused could not be expected to have acted with all the coolness of
a person under normal condition. Uppermost in his mind at the time
must have been the fact that his life was in danger and that to save
himself he had to do something to stop the aggression. He had no
time nor occasion for deliberation and cool thinking because it was
imperative for him to act on the spot. (People vs. Arellano, C.A., 54
O.G. 7252)
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The unlawful aggression must come from the person who
was attacked by the accused.
Although the accused was unlawfully attacked, nevertheless, the
aggressor was not the deceased but another person. Consequently, this
unlawful aggression cannot be considered in this case as an element of
self-defense, because, in order to constitute an element of self-defense, the
unlawful aggression must come, directly or indirectly, from the person
who was subsequently attacked by the accused. It has been so held by
the Supreme Court of Spain in its decision of May 6,1907; nor can such
element of unlawful aggression be considered present when the author
thereof is unknown, as was held in the decision of February 27,1895, of
said Supreme Court. (People vs. Gutierrez, 53 Phil. 609, 611)
The alleged act of the victim in placing his hand in his pocket,
as if he was going to draw out something, cannot be characterized
as unlawful aggression. On the other hand, the accused was the
aggressor. His act of arming himself with a bolo and following
and overtaking the group of the victim shows that he had formed
the resolution of liquidating the victim. There being no unlawful
aggression, there could be no self-defense. (People vs. Calantoc, No.
L-27892, Jan. 31, 1974, 55 SCRA 458, 461, 463-464)
A public officer exceeding his authority may become an
unlawful aggressor.
Thus, a provincial sheriff who, in carrying out a writ of execution,
exceeded his authority by taking against the will of the judgment
debtor personal property with sentimental value to the latter,
although other personal property sufficient to satisfy the claim of the
plaintiff was made available to said sheriff, was an unlawful aggressor
and the debtor had a right to repel the unlawful aggression. (People
vs. Hernandez, 59 Phil. 343)
The lawful possessor of a fishing net was justified in using force
to repel seizure by a peace officer who was making it without order
from the court. (People vs. Tilos, [CA] 36 O.G. 54)
Nature, character, location, and extent of wound of the accused
allegedly inflicted by the injured party may belie claim of selfdefense.
1. The accused, claiming self-defense, exhibited a small
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scar (1 1/2 inches long) caused by an instrument on his
head. Held: The exhibition of a small wound shortly
after the occurrence does not meet the requirement for
— paraphrasing the Supreme Court — "if in order to be
exempt from military service there are those who mutilate
themselves or cause others to mutilate them, who would
not wound himself slightly in order to escape" the penalty
of reclusion temporal prescribed for the crime of homicide?
(People vs. Mediavilla, 52 Phil. 94, 96)
2. The location, number and seriousness of the stab wounds
inflicted on the victims belie the claim of self-defense. One
of the victims alone sustained twenty-one (21) wounds.
(People vs. Batas, G.R. Nos. 84277-78, Aug. 2, 1989, 176
SCRA 46, 53, 54)
3. The nature, character, location and extent of the wounds
suffered by the deceased belie any supposition that it
was the deceased who was the unlawful aggressor. "The
nature and number of wounds inflicted by an assailant
[are] constantly and unremittingly considered important
indicia which disprove a plea of self-defense." (People vs.
Ganut, G.R. No. L-34517, Nov. 2,1982,118 SCRA 35, 43)
The deceased suffered three stab wounds, two of which
were fatal, and one incised wound. (People vs. Marciales,
No. L-61961, Oct. 18, 1988, 166 SCRA 436, 443)
4. Appellant's theory of self-defense is negatived by the nature
and location of the victim's wounds which, having a rightto-
left direction, could not have possibly been inflicted by a
right-handed person in front of the victim with a two-feet
long bolo. (People vs. Labis, No. L-22087, Nov. 15, 1967,
21 SCRA 875, 882)
5. In view of the number of wounds of the deceased, nineteen
(19) in number, the plea of self-defense cannot be seriously
entertained. So it has been constantly and uninterruptedly
held by the Supreme Court from U.S. vs. Gonzales (8 Phil.
443 [1907]) to People vs. Constantino (L-23558, Aug. 10,
1967, 20 SCRA 940), a span of sixty (60) years. (People vs.
Panganiban, No. L-22476, Feb. 27, 1968, 22 SCRA 817,
823)
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6. The accused was the only eyewitness to the crime. He
admitted that he killed the deceased, but advanced the
claim that he acted in self-defense. Held: The actual,
undisputed, physical facts flatly contradict the whole
theory of self-defense. The nature, character, location
and extent of the wound, as testified to by the doctor who
had examined the wound, clearly show that the deceased
was struck either from behind or while his body was in a
reclining position, from which it follows that the accused
did not act in self-defense. (People vs. Tolentino, 54 Phil.
77, 80)
Improbability of the deceased being the aggressor belies the
claim of self-defense.
It was unlikely that a sexagenarian would have gone to the
extent of assaulting the 24-year-old accused who was armed with
a gun and a bolo, just because the latter refused to give him a pig.
(People vs. Diaz, No. L-24002, Jan. 21, 1974, 55 SCRA 178, 184)
It is hard to believe that the deceased, an old man of 55 years
sick with ulcer, would still press his attack and continue hacking the
accused after having been seriously injured and had lost his right
hand. (People vs. Ardisa, No. L-29351, Jan. 23, 1974, 55 SCRA 245,
253-254)
The fact that the accused declined to give any statement when
he surrendered to a policeman is inconsistent with the plea
of self-defense.
When the accused surrendered to the policemen, he declined to
give any statement, which is the natural course of things he would
have done if he had acted merely to defend himself. A protestation
of innocence or justification is the logical and spontaneous reaction
of a man who finds himself in such an inculpatory predicament as
that in which the policemen came upon him still clutching the death
weapon and his victim dying before him. (People vs. Manansala, No.
L-23514, Feb. 17, 1970, 31 SCRA 401, 404)
The accused did not act in self-defense because, if he had done
so, that circumstance would have been included in his confession. He
never declared in his confession that he acted in self-defense. Had
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he acted in self-defense, he should have reported the incident to the
police of the three towns, the poblacion of which he passed when he
fled from the scene of the incident. (People vs. De la Cruz, No. L-45485,
Sept. 19, 1978, 85 SCRA 285, 291; See also People vs. Delgado, G.R.
No. 79672, Feb. 15, 1990, 182 SCRA 343, 350)
Physical fact may determine whether or not the accused acted
in self-defense.
In People vs. Dorico (No. L-31568, Nov. 29, 1973, 54 SCRA
172, 184), where the accused claimed self-defense by alleging that
he stabbed the victim twice when the latter lunged at the accused
to grab the latter's bolo, it was observed that if this were true, the
victim would have been hit in front. The evidence showed, however,
that the wounds were inflicted from behind.
The physical fact belies the claim of self-defense. The revolver
of the deceased was still tucked inside the waistband of his pants
which is indicative of his unpreparedness when he was fired upon
simultaneously by the accused with their high-calibered weapons.
The fact that the deceased received a total of 13 gunshot wounds is
inconsistent with the claim that the deceased was fired upon in selfdefense.
(People vs. Perez, No. L-28583, April 24,1974,56 SCRA 603,
610)
In People vs. Aquino (No. L-32390, Dec. 28, 1973, 54 SCRA
409), the plea of self-defense was sustained. There were conflicting
versions as to how the victim was shot but the Supreme Court
sustained the version of the accused as being in accord with the
physical evidence. The prosecution tried to prove that the victim
was standing about two or three meters away from the truck where
the accused was seated as driver and that the accused, without any
exchange of words, shot the victim. The accused, on the other hand,
claimed that the victim went up the running board of the truck,
after pulling out a "balisong," and held on to the windshield frame.
When the victim lunged with his knife, the accused leaned far right,
at the same time parrying the hand of the victim who switched to
a stabbing position and, at that moment, the accused, who was
already leaning almost prone on the driver's seat, got his gun from
the tool box and shot the victim. The Court considered the physical
objective facts as not only consistent with, but confirming strongly,
the plea of self-defense. The direction and trajectory of the bullets
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would have been different had the victim been standing upright two
or three meters to the left of the truck.
When the aggressor flees, unlawful aggression no longer
exists.
When unlawful aggression which has begun no longer exists,
because the aggressor runs away, the one making a defense has no
more right to kill or even to wound the former aggressor.
People vs. Alconga, et al.
(78 Phil. 366)
Facts: The deceased was the banker in a game of black jack.
The accused posted himself behind the deceased acting as a spotter
of the latter's cards and communicating by signs to his partner. Upon
discovering the trick, the deceased and the accused almost came
to blows. Subsequently, while the accused was seated on a bench
the deceased came and forthwith gave a blow with a "pingahan,"
but the accused avoided the blow by crawling under the bench. The
deceased continued with second and third blows, and the accused
in a crawling position fired with his revolver. A hand to hand fight
ensued, the deceased with his dagger and the accused using his bolo.
Having sustained several wounds, the deceased ran away, but was
followed by the accused and another fight took place, during which
a mortal blow was delivered by the accused, slashing the cranium
of the deceased.
Held: There were two stages in the fight between the accused and
the deceased. During the first stage of the fight, the accused in inflicting
several wounds upon the deceased acted in self-defense, because then
the deceased, who had attacked the accused with repeated blows, was
the unlawful aggressor. But when the deceased after receiving several
wounds, ran away, from that moment there was no longer any danger
to the life of the accused who, being virtually unscathed, could have
chosen to remain where he was and when he pursued the deceased,
fatally wounding him upon overtaking him, Alconga was no longer
acting in self-defense, because the aggression begun by the deceased
ceased from the moment he took to his heels.
In a case where the deceased, who appeared to be the first
aggressor, ran out of bullets and fled, and the accused pursued him
and, after overtaking him, inflicted several wounds on the posterior
side of his body, it was held that in such a situation the accused
should have stayed his hand, and not having done so he was guilty of
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homicide. (People vs. Del Rosario, C.A., 58 O.G. 7879, citing decisions
of the Supreme Court)
Retreat to take more advantageous position.
If it is clear that the purpose of the aggressor in retreating is to
take a more advantageous position to insure the success of the attack
already begun by him, the unlawful aggression is considered still
continuing, and the one making a defense has a right to pursue him
in his retreat and to disable him.
No unlawful aggression when there is agreement to fight.
1. No unlawful aggression in concerted fight, as when the
accused and the deceased, after an altercation in a bar,
agreed to fight, went to a store and purchased two knives;
that thereafter, the accused repeatedly expressed his desire
and wish to the deceased not to fight, and that the former
begged the latter that there be no fight between them,
and that the deceased paid no heed to such request and
attacked the accused; but the accused succeeded in killing
the deceased. It was held that the aggression was reciprocal
and legitimate as between two contending parties. (U.S.
vs. Navarro, 7 Phil. 713; See also People vs. Marasigan,
51 Phil. 701 and People vs. Gondayao, 30 SCRA 226)
2. There is agreement to fight in this case.
When the accused, pursued by the deceased, reached
his house, he picked up a pestle and, turning towards the
deceased, faced him, saying: "Come on if you are brave,"
and then attacking and killing him. It was held that the
accused did not act in self-defense, for what he did after
believing himself to be duly armed, was to agree to the
fight. (People vs. Monteroso, 51 Phil. 815)
3. The challenge to a fight must be accepted.
If the deceased challenged the accused to a fight and
forthwith rushed towards the latter with a bolo in his hand,
so that the accused had to defend himself by stabbing the
deceased with a knife, the accused, not having accepted the
challenge, acted in self-defense. (People vs. Del Pilar, C.A.,
44 O.G. 596)
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Reason for the rule.
Where the fight is agreed upon, each of the protagonists is at
once assailant and assaulted, and neither can invoke the right of
self-defense, because aggression which is an incident in the fight is
bound to arise from one or the other of the combatants. (People vs.
Quinto, 55 Phil. 116)
When parties mutually agree to fight, it is immaterial who
attacks or receives the wound first, for the first act of force is an
incident of the fight itself and in no wise is it an unwarranted and
unexpected aggression which alone can legalize self-defense. (U.S. vs.
Cortez, et al., 36 Phil. 837; People vs. Marasigan, 51 Phil. 701; People
vs. Lumasag, 56 Phil. 19; People vs. Neri, 77 Phil. 1091)
Aggression which is ahead of the stipulated time and place
is unlawful.
Where there was a mutual agreement to fight, an aggression
ahead of the stipulated time and place would be unlawful. The
acceptance of the challenge did not place on the offended party the
burden of preparing to meet an assault at any time even before
reaching the appointed time and place for the agreed encounter, and
any such aggression was patently illegal. (Severino Justo vs. Court
of Appeals, 53 O.G. 4083)
Illustration:
A and B were in the office of a division superintendent of
schools. A and B had an altercation. A grabbed a lead paper
weight from a table and challenged B to go out, to fight outside
the building. A left the office, followed by B. When they were in
front of the table of a clerk, B asked A to put down the paper
weight but instead A grabbed the neck and collar of the polo
shirt of B which was torn. B boxed A several times.
In this case, the aggression made by A which took place
before he and B could go out of the building is unlawful,
notwithstanding their agreement to fight.
One who voluntarily joined a fight cannot claim self-defense.
The court a quo rejected the claim of self-defense interposed by
the appellant. We find that such plea cannot be availed of because no
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unlawful aggression, so to speak, was committed by the deceased,
Rodolfo Saldo, and Hernando Caunte against the appellant.
Appellant's version of the incident was to the effect that he had
come to the aid of Villafria at the latter's call when Villafria boxed
Mariano Dioso and engaged the group of Dioso, Saldo and Caunte in
a fight. In other words, he voluntarily joined the fight, when he did
not have to. He voluntarily exposed himself to the consequences of
a fight with his opponents. Granting arguendo that the first attack
came from Dioso or Saldo or Caunte, yet same cannot be considered
an unlawful or unexpected aggression. The first attack which came
from either is but an incident of the fight. (People vs. Kruse, C.A.,
64 O.G. 12632)
The rule now is "stand ground when in the right."
The ancient common law rule in homicide denominated "retreat
to the wall," has now given way to the new rule "stand ground when
in the right."
So, where the accused is where he has the right to be, the law does
not require him to retreat when his assailant is rapidly advancing
upon him with a deadly weapon. (U.S. vs. Domen, 37 Phil. 57)
The reason for the rule is that if one flees from an aggressor, he
runs the risk of being attacked in the back by the aggressor.
How to determine the unlawful aggressor.
In the absence of direct evidence to determine who provoked the
conflict, it has been held that it shall be presumed that, in the nature
of the order of things, the person who was deeply offended by the insult
was the one who believed he had a right to demand explanation of
the perpetrator of that insult, and the one who also struck the first
blow when he was not satisfied with the explanation offered. (U.S.
vs. Laurel, 22 Phil. 252)
The circumstance that it was the accused, not the deceased, who
had a greater motive for committing the crime on the ground that the
deceased had already sufficiently punished the accused on account
of his misbehavior and because he was publicly humiliated, having
gotten the worst of the fight between the two inside the theater, leads
the court to the conclusion that the claim of self-defense is really
untenable. (People vs. Berio, 59 Phil. 533)
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Unlawful aggression in defense of other rights.
Note that in the three classes of defense mentioned in paragraphs
1, 2 and 3 of Art. 11, the defense of rights requires also the first and
second requisites, namely, (1) unlawful aggression, and (2) reasonable
necessity of the means employed to prevent or repel it.
1. Attempt to rape a woman — defense of right to chastity.
a. Embracing a woman, touching her private parts and
her breasts, and throwing her to the ground for the
purpose of raping her in an uninhabited place when
it was twilight, constitute an attack upon her honor
and, therefore, an unlawful aggression. (People vs.
De la Cruz, 61 Phil. 344)
b. Placing of hand by a man on the woman's upper thigh
is unlawful aggression. (People vs. Jaurigue, 76 Phil.
174)
2. Defense of property.
Defense of property can be invoked as a justifying
circumstance only when it is coupled with an attack on
the person of one entrusted with said property. (People vs.
Apolinar, C.A., 38 O.G. 2870)
3. Defense of home.
Violent entry to another's house at nighttime, by a
person who is armed with a bolo, and forcing his way into
the house, shows he was ready and looking for trouble, and
the manner of his entry constitutes an act of aggression.
The owner of the house need not wait for a blow before
repelling the aggression, as that blow may prove fatal.
(People vs. Mirabiles, 45 O.G., 5th Supp., 277)
In this day and times when bold robberies and
thieveries are committed even under the very noses of the
members of the household and usually at night, courts
must not hesitate to sustain the theory of self-defense of
the victim of thievery or robbery when such thief or robber
by overt acts shows aggression instead of fear or desire to
escape upon apprehension for certainly such an intruder
must be prepared not only to steal but to kill under the
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circumstances. In the case at bar, even if the accused did
not actually see the victim assault him with the balisong,
the mere fact that the victim assaulted the accused under
cover of darkness is such unlawful aggression as would
justify the accused to defend himself. (People vs. Salatan,
[CA] 69 O.G. 10134)
People vs. De la Cruz
(61 Phil. 344)
Facts: The accused, a woman, was walking home with a party
including the deceased, Francisco Rivera. It was already dark and they
were passing a narrow path. When the other people were far ahead,
the deceased who was following the accused suddenly threw his arms
around her from behind, caught hold of her breasts, kissed her, and
touched her private parts. He started to throw her down. When the
accused felt she could not do anything more against the strength of her
aggressor, she got a knife from her pocket and stabbed him.
Held: She was justified in making use of the knife in repelling
what she believed to be an attack upon her honor since she had no other
means of defending herself.
An attempt to rape a woman constitutes an aggression sufficient
to put her in a state of legitimate defense inasmuch as a woman's
honor cannot but be esteemed as a right as precious, if not more than
her very existence. The woman thus imperilled may kill her offender
if that is the only means left for her to protect her honor from so grave
an outrage. (People vs. Luague, et al., 62 Phil. 504)
People vs. Jaurigue
(76 Phil. 174)
Facts: The deceased was courting the accused in vain. One day,
the deceased approached her, spoke to her of his love which she flatly
refused, and he thereupon suddenly embraced and kissed her on account
of which the accused gave him fist blows and kicked him. Thereafter,
she armed herself with a fan knife, whenever she went out. One week
after the incident, the deceased entered a chapel, went to sit by the
side of the accused, and placed his hand on the upper part of her right
thigh. Accused pulled out her fan knife and with it stabbed the deceased
at the base of the left side of the neck, inflicting a mortal wound.
Held: The means employed by the accused in the defense of her
honor was evidently excessive. The chapel was lighted with electric
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lights, and there were already several people, including her father and
the barrio lieutenant, inside the chapel. Under the circumstances, there
was and there could be no possibility of her being raped.
The Supreme Court apparently considered in this case the
existence of unlawful aggression consisting in the deceased's placing
his hand on the upper portion of her right thigh. The accused was
not given the benefit of complete self-defense, because the means
employed was not reasonable. If the accused only gave the deceased
fist blows or kicked him, to prevent him from going further in his
attempt to commit an outrage upon her honor, she would have been
completely justified in doing so.
People vs. Apolinar
(C.A., 38 O.G. 2870)
Facts: The accused, armed with a shotgun, was looking over his
land. He noticed a man carrying a bundle on his shoulder. Believing
that the man had stolen his palay, the accused shouted for him to stop,
and as he did not, the accused fired in the air and then at him, causing
his death.
Held: Defense of property is not of such importance as right to
life, and defense of property can be invoked as a justifying circumstance
only when it is coupled with an attack on the person of one entrusted
with said property.
Had the accused, who wanted to stop the thief then approaching
him, been attacked, say with a bolo, by that thief, he would have
been justified in shooting him, if the shotgun was the only available
weapon for his defense.
In such case, there would be unlawful aggression on the part of
the deceased, which is required even in defense of one's property. It
will be noted that in paragraph 1 of Article 11, the opening clause,
which is followed by the enumeration of the three requisites, states:
"anyone who acts in defense of his person or rights." The word
"rights" includes right to property. Hence, all the three requisites of
self-defense, particularly unlawful aggression, must also concur in
defense of property.
In the case of People vs. Goya, CA-G.R. No. 16373-R, Sept. 29,
1956, the guard in a bodega surprised the injured party in the act
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of going out through the door with a sack of palay. To prevent the
latter from taking away a sack of palay, the guard fired a shot at the
injured party, inflicting less serious physical injuries. Held: Since the
injured party did not lay hands on the guard or make any attempt to
attack the latter, the guard cannot properly and legally claim defense
of property. There must be an attack by the one stealing the property
on the person defending it.
The belief of the accused may be considered in determining
the existence of unlawful aggression.
"A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arm and a pistol in his hand,
and using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in
his hand, strikes B over the head before or at the instant the pistol
is discharged; and of the wound B dies. It turns out the pistol was
loaded with powder only, and that the real design of B is only to
terrify A. Will any reasonable man say that A is more criminal than
he would have been if there had been a bullet in the pistol? Those who
hold such doctrine must require that a man so attacked must, before
he strikes the assailant, stop and ascertain how the pistol is loaded
— a doctrine which would entirely take away the essential right of
self-defense." (Lloyd's Report, p. 160, cited in U.S. vs. Ah Chong, 15
Phil. 502-503)
There is self-defense even if the aggressor used a toy pistol,
provided the accused believed it was a real gun.
That Crispin Oscimina's gun turned out to be a toy pistol is
inconsequential, considering its strikingly similar resemblance to a
real one and defendant-appellant's belief that a real gun was being
aimed at him. (People vs. Boral, 11 C.A. Rep. 914)
Forcibly pushing picketers to let company trucks enter the compound
is not unlawful aggression against the rights of the picketers.
The act of the security officer of a strike-bound company in
forcibly pushing the picketers after he had ordered them to give
way and let the company trucks to enter the compound, but the
picketers refused, does not constitute unlawful aggression against
the legitimate rights of the picketers as would justify its repulsion
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with equal and reasonable force such as inflicting physical injuries
upon the officer, for what was under attack by said security officer
was not the right of picketing, but the picketers' act of remaining in
the passageway when the trucks wanted to get inside, which is not a
part of the picketing protected by law. (People vs. Calip, et al, 3 C.A.
Rep. 808)
Threat to inflict real injury as unlawful aggression.
A mere threatening or intimidating attitude, not preceded by an
outward and material aggression, is not unlawful aggression, because
it is required that the act be offensive and positively strong, showing
the wrongful intent of the aggressor to cause an injury.
Mere threatening attitude is not unlawful aggression.
U.S. vs. Guy-sayco
(13 Phil. 292)
Facts: As her husband had stayed away from home for more
than two weeks, remaining in the barrio of Dujat, distant about two
and one-half hours' walk from the town under the pretext that he was
engaged in field work, on the 20th of March, 1907, at about 2 p.m., the
accused decided to go to said barrio and join him. To this end she hired
a carromata, and after getting some clothes and other things necessary
for herself and husband, started out with her infant child and servant
girl; but before reaching the barrio and the camarin where her husband
ought to be, night came on, and at about 7 o'clock she alighted and dismissed
the vehicle after paying the driver. They had yet to travel some
distance. On seeing her husband's horse tied in front of a house, she
suspected that he was inside; thereupon she went to the steps leading
to the house, which was a low one, and then saw her husband sitting
down with his back toward the steps. She immediately entered the
house and encountered her husband, the deceased and the owners of
the house taking supper together. Overcome and blinded by jealousy
she rushed at Lorenza Estrada, attacked her with a pen knife that she
carried and inflicted five wounds upon her in consequence of which
Lorenza fell to the ground covered with blood and died a few moments
afterwards.
The accused pleaded not guilty, and in exculpation she alleged
that, when Lorenza Estrada saw her and heard her remonstrate with
her husband, she being then upstairs, Lorenza at once asked what
had brought her there and manifested her intention to attack her with
a knife that she carried in her hand, whereupon the accused caught
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the deceased by the right hand in which she held the weapon, and
immediately grappled with her, and in the struggle that ensued she
managed to get hold of a pen knife that she saw on the floor close by;
she could not say whether she struck the deceased with it as she could
not account for what followed.
Held: Even though it was true that when the accused Emilia, made
her appearance, the deceased Lorenza arose with a knife in her hand
and in a threatening manner asked the accused what had brought her
there, such attitude, under the provisions of Article 8, No. 4, of the Penal
Code (Art. 11, par. 1, of the Revised Penal Code), does not constitute
the unlawful aggression, which, among others, is the first indispensable
requisite upon which exemption (justification) by self-defense may be
sustained.
In order to consider that unlawful aggression was actually
committed, it is necessary that an attack or material aggression, an
offensive act positively determining the intent of the aggressor to cause
an injury shall have been made; a mere threatening or intimidating
attitude is not sufficient to justify the commission of an act which is
punishable per se, and allow a claim of justification on the ground
that it was committed in self-defense.
Examples of threats to inflict real injury:
1. When one aims a revolver at another with the intention of
shooting him. (Dec. Sup. Ct. Spain, Sept. 29, 1905)
2. The act of a person in retreating two steps and placing his
hand in his pocket with a motion indicating his purpose
to commit an assault with a weapon. (Dec. Sup. Ct. Spain,
June 26, 1891)
3. The act of opening a knife, and making a motion as if to
make an attack. (Dec. Sup. Ct. Spain, Oct. 24, 1895)
Note that in the above cases, the threatening attitude of the
aggressor is offensive and positively strong, showing the wrongful
intent of the aggressor to cause an injury.
When intent to attack is manifest, picking up a weapon is
sufficient unlawful aggression.
When the picking up of a weapon is preceded by circumstances
indicating the intention of the deceased to use it in attacking the
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defendant, such act is considered unlawful aggression. (People vs.
Javier, 46 O.G. No. 7, July, 1950)
Aggression must be real, not merely imaginary.
Thus, when the accused, disliking the intervention of the
deceased in a certain incident between the accused and a couple,
armed himself with a gun and went to the house of the deceased, and
upon seeing the latter holding a kris in his hand, shot him to death,
there was no unlawful aggression, notwithstanding the claim of the
accused that the deceased was a man of violent temper, quarrelsome
and irritable, and that the latter might attack him with the kris,
because he merely imagined a possible aggression. The aggression
must be real, or, at least, imminent. (People vs. De la Cruz, 61 Phil.
422)
Aggression that is expected.
An aggression that is expected is still real, provided it is imminent.
It is well-known that the person who pursues another with
the intent and purpose of assaulting him does not raise his hand
to discharge the blow until he believes that his victim is within his
reach.
In this case, it is not necessary to wait until the blow is about
to be discharged, because in order that the assault may be prevented
it is not necessary that it has been actually perpetrated. (U.S. vs.
Batungbacal, 37 Phil. 382)
Second Requisite of Defense of Person or Right: Reasonable
necessity of the means employed to prevent or repel it.
This second requisite of defense presupposes the existence of
unlawful aggression, which is either imminent or actual. Hence, in
stating the second requisite, two phrases are used, namely: (1) "to
prevent" and (2) "to repel." When we are attacked, the danger to our
life or limb is either imminent or actual. In making a defense, we
prevent the aggression that places us in imminent danger or repel
the aggression that places us in actual danger. A threat to inflict real
injury places us in imminent danger. An actual physical assault places
us in actual danger.
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Self-Defense
In the case of U.S. us. Batungbacal, 37 Phil. 382, the Supreme
Court stated: "The law protects not only the person who repels an
aggression (meaning actual), but even the person who tries to prevent
an aggression that is expected (meaning imminent)."
The second requisite of defense means that (1) there be a
necessity of the course of action taken by the person making a
defense, and (2) there be a necessity of the means used. Both must
be reasonable.
The reasonableness of either or both such necessity depends on
the existence of unlawful aggression and upon the nature and extent
of the aggression.
The necessity to take a course of action and to use a means
of defense.
The person attacked is not duty-bound to expose himself to be
wounded or killed, and while the danger to his person or life subsists,
he has a perfect and indisputable right to repel such danger by
wounding his adversary and, if necessary, to disable him completely
so that he may not continue the assault. (U.S. vs. Molina, 19 Phil.
227)
The reasonableness of the necessity depends upon the circumstances.
In emergencies where the person or life of another is imperilled,
human nature does not act upon processes of formal reason but in
obedience to the instinct of self-preservation. The reasonableness of
the necessity to take a course of action and the reasonableness of the
necessity of the means employed depend upon the circumstances of
the case.
In a situation, like the one at bar, where the accused, who was
then unarmed, was being mauled with fistic blows by the deceased
and his companions for refusing their offer to drink wine, picked up
a lead pipe within his reach and with it struck the deceased on the
forehead resulting in the latter's death, the use by the accused of such
lead pipe under the circumstances is reasonable. That the accused
did not select a lesser vital portion of the body of the deceased to hit
is reasonably to be expected, for in such a situation, the accused has
to move fast, or in split seconds, otherwise, the aggression on his
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person would have continued and his life endangered. (People vs.
Ocana, C.A., 67 O.G. 3313)
1. Necessity of the course of action taken.
The necessity of the course of action taken depends
on the existence of unlawful aggression. If there was no
unlawful aggression or, if there was, it has ceased to exist,
there would be no necessity for any course of action to take
as there is nothing to prevent or to repel.
In determining the existence of unlawful aggression
that induced a person to take a course of action, the place
and occasion of the assault and the other circumstances
must be considered.
a. Place and occasion of the assault considered.
The command given to the accused by the
deceased in a dark and an uninhabited place, for the
purpose of playing a practical joke upon him, "Lie
down and give me your money or else you die," made
the accused act immediately by discharging his pistol
against the deceased. It was held that a person under
such circumstances cannot be expected to adopt a
less violent means of repelling what he believed was
an attack upon his life and property. (Dec. Sup. Ct.
Spain, March 17, 1885)
Similar illustration is given in the case of U.S.
vs. Ah Chong, 15 Phil. 501-502.
b. The darkness of the night and the surprise which
characterized the assault considered.
When the accused, while walking along in a dark
street at night with pistol in hand on the lookout for
an individual who had been making an insulting demonstration
in front of his house, was suddenly held
from behind and an attempt was made to wrench the
pistol from him, he was justified in shooting him to
death, in view of the darkness and the surprise which
characterized the assault. The deceased might be able
to disarm the accused and to use the pistol against
the latter. (People vs. Lara, 48 Phil. 153)
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No necessity of the course of action taken.
When the deceased who had attacked Alconga ran away, there
was no necessity for Alconga to pursue and kill the deceased. (People
vs. Alconga, 78 Phil. 366)
The theory of self-defense is based on the necessity on the part of
the person attacked to prevent or repel the unlawful aggression, and
when the danger or risk on his part has disappeared, his stabbing
the aggressor while defending himself should have stopped. (People
vs. Calavagan, C.A. G.R. No. 12952-R, August 10, 1955)
The claim of self-defense is not credible as the accused narrated
that he had succeeded in disarming the victim of the piece of wood the
latter was allegedly carrying so that stabbing with such frequency, frenzy
and force can no longer be considered as reasonably necessary. (People
vs. Masangkay, No. L-73461, Oct. 27,1987,155 SCRA 113,122)
When the deceased who endeavored to set fire to the house of the
accused in which the two small children of the latter were sleeping
was already out of the house and prostrate on the ground, having been
boloed by the accused, there was no reasonable necessity of killing
her. (U.S. vs. Rivera, 41 Phil. 472, 474)
While the accused might have been and doubtless was justified
in picking up the bamboo pole to keep his adversary at bay, he was not
justified in striking the head of the deceased with it, as he was not in any
real danger of his life, for his adversary, although armed with a bolo, had
not attempted to draw it, and limited his assault to an attempt to push
the accused back to the shallow pool into which he had been thrown at
the outset of the quarrel. (U.S. vs. Pasca, 28 Phil. 222, 226)
While there was an actual physical invasion of appellant's property
when the deceased chiselled the walls of his house and closed
appellant's entrance and exit to the highway, which he had the right
to resist, the reasonableness of the resistance is also a requirement of
the justifying circumstance of self-defense or defense of one's rights.
When the appellant fired his shotgun from his window, killing his two
Victims, his resistance was disproportionate to the attack. (People vs.
Narvaez, 121 SCRA 402-403)
When aggressor is disarmed.
When the wife was disarmed by her husband after wounding him
seriously but she struggled to regain possession of the bolo, there was
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Par. 1
a reasonable necessity for him to use said bolo to disable her, because
he was already losing strength due to loss of blood and to throw away
the bolo would only give her a chance to pick it up and again use it
against him. (People vs. Rabandaban, 85 Phil. 636, 637-638; People
vs. Datinguinoo, 47 O.G. 765)
But when the defendant, who had been attacked by the deceased,
succeeded in snatching the bolo away from the latter, and the deceased
already manifested a refusal to fight, the defendant was not justified
in killing him. (People vs. Alviar, 56 Phil. 98, 101)
When only minor physical injuries are inflicted after unlawful
aggression has ceased to exist, there is still self-defense
if mortal wounds were inflicted at the time the requisites of
self-defense were present.
The fact that minor physical injuries were inflicted by the
accused after the unlawful aggression had ceased and after he had
stabbed the deceased with two mortal wounds, said mortal wounds
having been inflicted at a time when the requisites of complete selfdefense
were still present, cannot and should not affect the benefit of
said complete self-defense in the absence of proof'that those relatively
small wounds contributed to or hastened the death of the deceased.
(People vs. Del Pilar, C.A., 44 O.G. 596)
This ruling should not be applied if the deceased, after receiving
minor wounds, dropped his weapon and signified his refusal to fight
any longer, but the accused hacked him to death. The reason is that
the wound inflicted, after the aggression had ceased, was the cause
of death.
The person defending is not expected to control his blow.
Defense of person or rights does not necessarily mean the killing
of the unlawful aggressor. But the person defending himself cannot
be expected to think clearly so as to control his blow. The killing of
the unlawful aggressor may still be justified as long as the mortal
wounds are inflicted at a time when the elements of complete selfdefense
are still present.
One is not required, when hard pressed, to draw fine distinctions
as to the extent of the injury which a reckless and infuriated assailant
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Self-Defense
might probably inflict upon him. (Brownell vs. People, 38 Mich. 732,
cited in the case of People vs. Sumicad, 56 Phil. 647)
The fact that the accused struck one blow more than was
absolutelj' necessary to save his own life, or that he failed to hold
his hand so as to avoid inflicting a fatal wound where a less severe
stroke might have served the purpose, would not negative self-defense,
because the accused, in the heat of an encounter at close quarters,
was not in a position to reflect coolly or to wait after each blow to
determine the effects thereof. (U.S. vs. Macasaet, 35 Phil. 229; People
vs. Espina, C.A., 49 O.G. 983)
And if it was necessary for the accused to use his revolver, he
could hardly, under the circumstances, be expected to take deliberate
and careful aim so as to strike a point less vulnerable than the body
of his assailant. (U.S. vs. Mack, 8 Phil. 701; U.S. vs. Domen, 37 Phil.
57)
When the aggression is so sudden that there is no time left to the one
making a defense to determine what course of action to take.
At the moment the deceased was about to stab the superior officer
of the accused, the latter hit the deceased with a palma brava.
The trial court believed that the accused should have only struck his
hand to disable it, or only hit him in a less vulnerable part of the body.
Held: The trial court demanded too much of the accused's wisdom,
judgment and discretion during the split second he had to think and
act to save his superior officer. (People vs. Pante, C.A., G.R. No. 5512,
March 29, 1940)
In repelling or preventing an unlawful aggression, the one
defending must aim at his assailant, and not indiscriminately
fire his deadly weapon.
Even granting that while in a private discussion or quarrel with
his wife, appellant Galacgac was suddenly beaten twice on his head
with an iron bar by Pablo Soriano thus causing blood to ooze over
his eyes, appellant Galacgac certainly had no right to fire at random
his unlicensed revolver. He knew that there were many innocent
persons in Soriano's house, namely, his (Galacgac's) wife, his sister
and brother-in-law. Besides, there were many inhabited houses in
the vicinity of house No. 1238 Anacleto Street. Of course, appellant
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Galacgac had a perfect and lawful right to defend himself against the
unjustified assault upon his person made by Pablo Soriano. However,
because he did not aim at his assailant but instead indiscriminately
fired his deadly weapon at the risk of the lives and limbs of the innocent
persons he knew were in the place of occurrence, his act of
defense was not exercised with due care.
However, there being no intent to kill, appellant Galacgac was
held liable for physical injuries. (People vs. Galacgac, C.A., 54 O.G.
1027)
2. Necessity of the means used.
The means employed by the person making a defense
must be rationally necessary to prevent or repel an unlawful
aggression.
Thus in the following cases, there was no rational
necessity to employ the means used.
a. A sleeping woman, who was awakened by her brotherin-
law grasping her arm, was not justified in using
a knife to kill him as the latter did not perform any
other act which could be construed as an attempt
against her honor. (U.S. vs. Apego, 23 Phil. 391)
b. When a person was attacked with fist blows only,
there was no reasonable necessity to inflict upon the
assailant a mortal wound with a dagger. (People vs.
Montalbo, 56 Phil. 443)
There was in this case a reasonable necessity to
act by using fist blows also. But there was no necessity
to employ a dagger to repel such an aggression.
c. When a man placed his hand on the upper thigh of
a woman seated on a bench in a chapel where there
were many people and which was well-lighted, there
was no reasonable necessity to kill him with a knife
because there was no danger to her chastity or honor.
(People vs. Jaurigue, 76 Phil. 174)
There was in this case a reasonable necessity to
stop the deceased from further doing the same thing
or more. But there was no necessity to use a knife.
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Self-Defense
It is otherwise where the husband of the accused was kneeling
over her as she lay on her back on the ground and his hand choking
her neck when she pulled out the knife inserted at the left side of her
husband's belt and plunged it at his body hitting the left back portion
just below the waist. There was reasonable necessity of the use of the
knife. (People vs. Boholst-Caballero, No. L-23249, Nov. 25, 1974, 61
SCRA 180, 189)
The test of reasonableness of the means used.
Whether or not the means employed is reasonable, will depend
upon the nature and quality of the weapon used by the aggressor, his
physical condition, character, size and other circumstances, and those
of the person defending himself, and also the place and occasion of
the assault.
Perfect equality between the weapon used by the one defending
himself and that of the aggressor is not required, because the person
assaulted does not have sufficient tranquility of mind to think, to
calculate and to choose which weapon to use. (People vs. Padua, C.A.,
40 O.G. 998)
"Reasonable necessity of the means employed does not imply
material commensurability between the means of attack and defense.
What the law requires is rational equivalence, in the consideration
of which will enter as principal factors the emergency, the imminent
danger to which the person attacked is exposed, and the instinct,
more than reason, that moves or impels the defense, and the proportionateness
thereof does not depend upon the harm done, but rests
upon the imminent danger of such injury." (People vs. Encomienda,
No. L-26750, Aug. 18, 1972, 46 SCRA 522, 534, quoting People vs.
Lara, 48 Phil. 153; People vs. Paras, 9 Phil. 367)
As was already mentioned, the reasonableness of the means
employed will depend upon —
1. The nature and quality of the weapons:
a. Although as a general rule a dagger or a knife is more
dangerous than a club, the use of a knife or dagger,
when attacked with a club, must be deemed reasonable
if it cannot be shown that the person assaulted
(1) had other available means or (2) if there was other
means, he could coolly choose the less deadly weapon
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to repel the assault. (People vs. Padua, C.A., 40 O.G.
998)
In the case of U.S. vs. Laurel, 22 Phil. 252, a
similar ruling was applied.
The use of a bolo to repel the aggression by means
of a stick, the use of a knife against a rod, or a knife
against a stick was held to be reasonable under the circumstances.
(People vs. Romero, C.A., 34 O.G. 2046)
But it was held that the use of a bayonet against
a cane is not reasonable. The accused could have
warded off the blows made by the deceased with his
cane. If the accused had only drawn his bayonet in
defense, that would have been enough to discourage
and prevent the deceased from further continuing
with his attack or sufficient to ward off the blows
given by the deceased when he attacked the accused.
In stabbing the deceased with his bayonet, the
accused went beyond what was necessary to defend
himself against the unlawful aggression made by the
deceased. (People vs. Onas, No. L-17771, Nov. 29,
1962, 6 SCRA 688, 692-693)
Since the deceased was a gangster with a reputation
for violence, the use by the accused of a dagger
to repel the persistent aggression by the deceased
with a wooden pestle is reasonably necessary under
the circumstances. (People vs. Ramilo, C.A., 44 O.G.
1255)
At a distance, stones hurled by the deceased, who
was a known boxer, big and strong, may constitute a
graver danger than a bolo. In such case, the use of a
bolo was held reasonable. (People vs. Aguilario, C.A.,
56 O.G. 757)
The use of a revolver against an aggressor armed
with a bolo was held reasonable, it appearing that the
deceased was advancing upon the accused and within
a few feet of striking distance when the latter shot
him. (U.S. vs. Mack, 8 Phil. 701)
In the case of People vs. Maliwanag, No. L-30302,
Aug. 14,1974, 58 SCRA 323, 331-332, it was held that
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Self-Defense
there was reasonable necessity of the means employed
to repel the aggression from the deceased when the
appellant's only recourse in defending himself was
to use his service pistol against one who wielded a
deadly balisong knife.
b. To use a firearm against a dagger or a knife, in the
regular order of things, does not imply any difference
between such weapons. (Dec. Sup. Ct. of Spain, Oct.
27, 1887)
This ruling is subject to the limitations
mentioned in the case of People vs. Padua, supra,
namely: (1) there was no other available means; or (2)
if there was other means, the one making a defense
could not coolly choose the less deadly weapon to repel
the aggression.
c. But when a person is attacked with fist blows, he must
repel the same with the weapon that nature gave him,
meaning with fists also. (People vs. Montalbo, 56 Phil.
443)
This ruling applies only when the aggressor and
the one defending himself are of the same size and
strength.
2. Physical condition, character and size.
a. Thus, when the one defending himself who was of
middle age, was cornered, had his back to the iron
railing, and three or four men bigger, and stronger
than he were striking him with fists, such person was
justified in using a knife. (People vs. Ignacio, 58 Phil.
858)
b. The aggressor was a bully, a man larger and stronger,
of known violent character, with previous criminal
records for assault. He attacked with fist blows a
smaller man who was then armed with a bolo. In
spite of having received, as a warning, a cut with a
bolo on the left shoulder, the aggressor continued to
attempt to possess himself of the bolo. Killing him with
a bolo was justified in this case. (People vs. Sumicad,
56 Phil. 643)
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c. The character of the aggressor is emphasized in this
Considering that the aggressor provoked the
incident and started the aggression; considering that
he is of violent temperament, troublesome, strong
and aggressive with three criminal records, twice of
slander by deed and once of threat to kill; considering
that he wanted to impose his will on the family of
the accused for having rejected his nephew as a
suitor of the sister of the accused, boxing them one
after another and in their own home — the Court of
Appeals held that the accused was justified in striking
him with a bolo on the forehead and on the right eye.
(People vs. Padua, C.A., 40 O.G. 998)
3. Other circumstances considered.
In view of the imminence of the danger, a shotgun is
a reasonable means to prevent an aggression with a bolo.
M, being abruptly awakened by shouts that P was
pursuing H and M's two children, and seeing, upon
awakening, that in fact P was infuriated and pursuing H
with a bolo in his hand and his arm raised in an attitude as if
to strike, took up a shotgun lying within his reach and fired
at P, killing him at once. Held: Under the circumstances,
in view of the imminence of the danger, the only remedy
which could be considered reasonably necessary to repel
or prevent that aggression, was to render the aggressor
harmless. As M had on hand a loaded shotgun, this weapon
was the most appropriate one that could be used for the
purpose, even at the risk of killing the aggressor, since
the latter's aggression also gravely threatened the lives of
the parties assaulted. (U.S. vs. Batungbacal, 37 Phil. 382,
387-388)
Reasonable necessity of means employed to prevent or repel
unlawful aggression to be liberally construed in favor of lawabiding
citizens.
These are dangerous times. There are many lawless elements
who kill for the thrill of killing. There is no adequate protection for the
case:
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Self-Defense
law abiding citizens. When a lawless person attacks on the streets or
particularly in the victim's home, he should assume the risk of losing
his life from the act of self-defense by firearm of his victim; otherwise,
the law abiding citizens will be at the mercy of the lawless elements.
Hence, the requisite of reasonable necessity of the means employed
to prevent or repel the unlawful aggression should in these times of
danger be interpreted liberally in favor of the law-abiding citizens.
(People vs. So, 5 CAR [2s] 671, 674)
Rule regarding the reasonableness of the "necessity of the
means employed" when the one defending himself is a peace
officer.
The peace officer, in the performance of his duty, represents
the law which he must uphold. While the law on self-defense allows
a private individual to prevent or repel an aggression, the duty of a
peace officer requires him to overcome his opponent.
Thus, the fact that a policeman, who was armed with a revolver
and a club, might have used his club instead, does not alter the
principle since a policeman's club is not a very effective weapon as
against a drawn knife and a police officer is not required to afford a
person attacking him, the opportunity for a fair and equal struggle.
(U.S. vs. Mojica, 42 Phil. 784, 787)
But in the case of U.S. vs. Mendoza, 2 Phil. 109,110, it was held
that it is not reasonably necessary for a policeman to kill his assailant
to repel an attack with a calicut.
The use by a police officer of his service revolver in repelling the
aggression of the deceased who assaulted him with a kitchen knife
and continued to give him thrusts in the confines of a small room
measuring 6 feet by 6 feet is reasonable and necessary. Considering
the imminent danger to which his life was exposed at the time, he
could hardly be expected to choose coolly, as he would under normal
conditions, the use of his club as a less deadly weapon to use against
his assailant. As a police officer in the lawful performance of his official
duty, he must stand his ground and cannot, like a private individual,
take refuge in flight. His duty requires him to overcome his opponent.
(People vs. Caina, 14 CAR [2s] 93, 99-100)
There is no evidence that the accused was also armed with a
weapon less deadly than a pistol. But even if he had a club with him,
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the pistol would still be a reasonable means to repel the aggression
of the deceased, for a police officer is not required to afford a person
attacking him with a drawn knife the opportunity for a fair and equal
struggle. While the law on self-defense allows a private individual
to prevent or repel an aggression, the duty of a peace officer requires
him to overcome his opponent. The peace officer, in the performance
of his duty, represents the law which he must uphold. (People vs. Uy,
Jr., 20 CAR [2s] 850, 859-860)
First two requisites common to three kinds of legitimate
defense.
The first two requisites thus far explained are common to selfdefense,
defense of a relative, and defense of a stranger. These three
kinds of legitimate defense differ only in the third requisite.
Third requisite of self-defense.
"Lack of sufficient provocation on the part of the person defending
himself."
Reason for the third requisite of self-defense.
When the person defending himself from the attack by another
gave sufficient provocation to the latter, the former is also to be blamed
for having given cause for the aggression.
Hence, to be entitled to the benefit of the justifying circumstance
of self-defense, the one defending himself must not have given cause
for the aggression by his unjust conduct or by inciting or provoking
the assailant.
Cases in which third requisite of self-defense considered
present.
The third requisite of self-defense is present —
1. When no provocation at all was given to the aggressor by
the person defending himself; or
2. When, even if a provocation was given, it was not sufficient;
or
3. When, even if the provocation was sufficient, it was not
given by the person defending himself; or
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4. When, even if a provocation was given by the person
defending himself, it was not proximate and immediate
to the act of aggression. (Decisions of the Supreme Court
of Spain of March 5, 1902 and of April 20, 1906)
No provocation at all.
Thus, when A shot B to death, because B was running amuck
and with a dagger was rushing towards A manifestly intending to
stab A, there was no provocation whatsoever on the part of A. The
third requisite of self-defense is present.
There was provocation, but not sufficient.
A, having discovered that B had built a part of his fence on A's
land, asked B why he had done so. This question angered B who
immediately attacked A. If A would kill B to defend himself, the
third requisite of self-defense would still be present, because even if
it is true that the question of A angered B, thereby making B attack
A, such provocation is not sufficient. (U.S. vs. Pascua, 28 Phil. 222)
A had a right to demand explanation why B had built the fence on
A's property. The exercise of a right cannot give rise to sufficient
provocation.
How to determine the sufficiency of provocation.
The provocation must be sufficient, which means that it should
be proportionate to the act of aggression and adequate to stir the
aggressor to its commission. (People vs. Alconga, 78 Phil. 366)
Thus, to engage in a verbal argument cannot be considered
sufficient provocation. (Decision of the Supreme Court of Spain of
October 5, 1877)
Is it necessary for the provocation to be sufficient that the one
who gave it must have been guilty of using violence and thus becoming
an unlawful aggressor himself?
No, it is not necessary.
The provocation is sufficient —
1. When one challenges the deceased to come out of the house
and engage in a fist-fight with him and prove who is the
better man. (U.S. vs. McCray, 2 Phil. 545)
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The version of the defense deserves no credit.
Accused father and son challenged the deceased to
fight and they killed him when he came out. One of the
first requisites of self-defense is unlawful aggression.
Accused father called out the deceased from his house
and provoked him to fight. Coming out, said accused
threw a stone at him. The deceased merely fought back
but together both accused assaulted him until he fell
wounded. (People vs. Valencia, No. L-58426, Oct. 31,
1984, 133 SCRA 82, 86-87)
2. When one hurls insults or imputes to another the utterance
of vulgar language, as when the accused and his brothers
imputed to the deceased, the utterance of vulgar language
against them, which imputation provoked the deceased to
attack them. (People vs. Sotelo, 55 Phil. 403)
But it is not enough that the provocative act be
unreasonable or annoying. A petty question of pride does
not justify the wounding or killing of an opponent. (People
vs. Dolfo, C.A., 46 O.G. 1621)
3. When the accused tried to forcibly kiss the sister of the
deceased. The accused thereby gave sufficient provocation
to the deceased to attack him. There is no complete selfdefense,
because the third requisite is not present. (People
vs. Getida, CA-G.R. No. 2181-R, Jan. 6, 1951)
Sufficient provocation not given by the person defending
himself.
Note the phrase "on the part of the person defending himself"
in the third requisite of self-defense. Thus, in the case of People vs.
Balansag, 60 Phil. 266, it was held that the third requisite of selfdefense
was present, because the provocation proven at the trial was
not given by the accused but by the brother-in-law of the deceased.
Requisite of "lack of sufficient provocation" refers exclusively
to "the person defending himself."
Thus, if the accused appears to be the aggressor, it cannot be said
that he was defending himself from the effect of another's aggression.
(People vs. Espino, 43 O.G. 4705)
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JUSTIFYING CIRCUMSTANCES
Self-Defense
In the case of People vs. Alconga, 78 Phil. 366, the attack made by
the deceased when Alconga was the one defending himself during the
first stage of the fight, was not considered as a provocation to Alconga
in the second stage of the fight, because then he was the aggressor and
the third requisite of self-defense is limited to the person defending
himself.
Provocation by the person defending himself not proximate
and immediate to the aggression.
Thus, if A slapped the face of B one or two days before and
B, upon meeting A, attacked the latter but was seriously injured
when A defended himself, the provocation given by A should be
disregarded, because it was not proximate and immediate to the aggression
made by B. In this case, the third requisite of self-defense
is still present.
In the case of U.S. vs. Laurel, supra, the kissing of the girlfriend
of the aggressor was a sufficient provocation to the latter, but since
the kissing of the girl took place on December 26 and the aggression
was made on December 28, the provocation was disregarded by the
Supreme Court.
Illustration of the three requisites of self-defense.
People vs. Dolfo
(C.A., 46 O.G. 1621)
A was an electrician while B was his assistant. A called B to him,
who instead of approaching asked him, "Why are you calling me?" A
considered the retort as a provocative answer and suddenly threw a
4 by 2 inches piece of wood at B. B retaliated by throwing at A the
same piece of wood. A picked up the piece of wood, approached B and
started to beat him with the piece of wood. B defended himself with a
screwdriver and inflicted a mortal wound on A.
Question: (1) Was there sufficient provocation on the part of B
when he retorted "Why are you calling me?" (2) Was there reasonable
necessity in using the screwdriver to repel the attack?
Answer: (1) B's answer of "Why are you calling me?" when
summoned by A might have mortified and annoyed the latter but it
was not a sufficient provocation. The provocation must be sufficient or
proportionate to the act committed and adequate to arouse one to its
commission. It is not sufficient that the provocative act be unreasonable
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or annoying. A small question of self-pride does not justify hurting or
killing an opponent.
(2) The act of A in hurling the piece of wood at B when his
pride was hurt constituted unlawful aggression. Subsequent act of A in
attacking B with the piece of wood, after B had hurled back the thrown
piece of wood, was a continuation of the unlawful aggression already
begun. The subsequent act of A placed B in his defense, justifying the
use of a reasonable means to repel it.
(3) In determining whether or not a particular means employed
to repel an aggression is reasonable, the person attacked should not
be expected to judge things calmly and to act coolly or serenely as
one not under stress or not facing a danger to life or limb. The test
is: Considering the situation of the person defending himself, would
a reasonable man placed in the same circumstance have acted in the
same way? In this case, the screwdriver was a reasonable means to
repel the unlawful aggression of A. B was justified in killing him with
it. All the three requisites of self-defense were present. Hence, accused
B must be, as he was, acquitted.
All the elements of self-defense are present in this case.
(1) The deceased husband of the accused was kneeling over her
as she lay on her back on the ground and his hand choking her neck
when she pulled out the knife tucked on the left side of her husband's
belt and plunged it at his body.
(2) A woman being strangled and choked by a furious aggressor
and rendered almost unconscious by the strong pressure on her throat,
she had no other recourse but to get hold of any weapon within her
reach to save herself from impending death. Reasonable necessity of
the means employed in self-defense does not depend upon the harm
done but rests upon the imminent danger of such injury.
(3) She did not give sufficient provocation to warrant the
aggression or attack on her person by her husband. While it was
understandable for the latter to be angry at his wife for finding her on
the road in the middle of the night, he was not justified in inflicting
bodily punishment with an intent to kill by choking his wife's throat.
All that she did was to provoke an imaginary commission of a wrong
in the mind of her husband, which is not a sufficient provocation under
the law of self-defense. (People vs. Boholst-Caballero, No. L-23249, Nov.
25, 1974, 61 SCRA 180, 189, 195-196)
Battered Woman Syndrome as a defense.
Under Rep. Act No. 9262 otherwise known as Anti-Violence
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JUSTIFYING CIRCUMSTANCES
Self-Defense
Against Women and their Children Act of 2004, which took effect on
March 27, 2004, it is provided that -
"Sec. 26. Battered Women Syndrome as a Defense. — Victimsurvivors
who are found by the courts to be suffering from battered
women syndrome do not incur criminal and civil liability notwithstanding
the absence of any of the elements for justifying circumstances
of self-defense under the Revised Penal Code.
In the determination of the state of mind of the woman who was
suffering from battered woman syndrome at the time of the commission
of the crime, the courts shall be assisted by expert psychiatrist/
psychiatrists/psychologists."
The Battered Woman Syndrome, explained.
In claiming self-defense, appellant raises the novel theory
of the battered woman syndrome (BWS). While new in Philippine
jurisprudence, the concept has been recognized in foreign jurisdictions
as a form of self-defense or, at the least, incomplete self-defense. By
appreciating evidence that a victim or defendant is afflicted with the
syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and
controlled over a period of time."
A battered woman has been defined as a woman "who is repeatedly
subjected to any forceful physical or psychological behavior by a
man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in
any form of intimate relationship with men. Furthermore, in order
to be classified as a battered woman, the couple must go through
the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and
she remains in the situation, she is defined as a battered woman."
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and the
female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false
hopes that the relationship will improve.
More graphically, the battered woman syndrome is characterized
by the so-called "cycle of violence," which has three phases: (1) the
tension-building phase; (2) the acute battering incident; and (3) the
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Par. 1
tranquil, loving (or, at least, nonviolent) phase. During the tensionbuilding
phase, minor battering occurs — it could be verbal or slight
physical abuse or another form of hostile behavior. The woman usually
tries to pacify the batterer through a show of kind, nurturing behavior;
or by simply staying out of his way. What actually happens is that she
allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence
exhibited by the batterer. This wish, however, proves to be doubleedged,
because her "placatory" and passive behavior legitimizes his
belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal and/or physical
abuse worsens. Each partner senses the imminent loss of control
and the growing tension and despair. Exhausted from the persistent
stress, the battered woman soon withdraws emotionally. But the more
she becomes emotionally unavailable, the more the batterer becomes
angry, oppressive and abusive. Often, at some unpredictable point,
the violence "spirals out of control" and leads to an acute battering
incident.
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman
deems this incident as unpredictable, yet also inevitable. During this
phase, she has no control; only the batterer may put an end to the
violence. Its nature reasons for ending it. The battered woman usually
realizes that she cannot reason with him, and that resistance would
only exacerbate her condition.
At this stage, she has a sense of detachment from the attack
and the terrible pain, although she may later clearly remember
every detail. Her apparent passivity in the face of acute violence may
be rationalized thus: the batterer is almost always much stronger
physically, and she knows from her past painful experience that it is
futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders of intervenors are
likely to get hurt.
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that
he has been viciously cruel and tries to make up for it, begging for her
forgiveness and promising never to beat her again. On the other hand,
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JUSTIFYING CIRCUMSTANCES
Self-Defense
the battered woman also tries to convince herself that the battery
will never happen again; that her partner will change for the better;
and that this "good, gentle and caring man" is the real person whom
she loves.
A battered woman usually believes that she is the sole anchor
of the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being.
The truth, though, is that the chances of his reforming, or
seeking or receiving professional help, are very slim, especially if she
remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in
a battered woman's psyche. In this phase, she and her batterer are
indeed emotionally dependent on each other—she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of
"tension, violence and foregiveness," each partner may believe that
it is better to die than to be separated. Neither one may really feel
independent, capable of functioning without the other." (People vs.
Genosa, G.R. No. 135981, January 15, 2004.)
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the
abused woman, her state of mind metamorphoses. In determining
her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately
surrounding the incident. A Canadian court has aptly pointed out
that expert evidence on the psychological effect of battering on wives
and common law partners are both relevant and necessary. "How
can the mental state of the appellant be appreciated without it? The
average member of the public may ask: Why would a woman put up
with this kind of treatment? Why should she continue to live with
such a man? How could she love a partner who beat her to the point
of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose
and make a new life for herself? Such is the reaction of the average
person confronted with the so-called 'battered wife syndrome.'"
To understand the syndrome properly, however, one's viewpoint
should not be drawn from that of an ordinary, reasonable person. What
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Art. 11
Par. 1
goes on in the mind of a person who has been subjected to repeated,
severe beating may not be consistent with—nay, comprehensible to—
those who have not been through a similar experience. Expert opinion
is essential to clarify and refute common myths and misconceptions
about battered women.
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the United
States and the United Kingdom on the treatment and prosecution of
cases, in which a battered woman is charged with the killing of her
violent partner. The psychologist explains that the cyclical nature of
the violence inflicted upon the battered woman immobilizes the latter's
"ability to act decisively in her own interests, making her feel trapped in
the relationship with no means of escape." In her years of research, Dr.
Walker found that "the abuse often escalates at the point of separation
and battered women are in greater danger of dying then."
Corroborating these research findings, Dra. Dayan said that "the
battered woman usually has a very low opinion of herself. She has x
x x self-defeating and self-sacrificing characteristics, x x x [W]hen the
violence would happen, they usually think that they provokefd] it,
that they were the one[s] who precipitated the violence [; that] they
provoke[d] their spouse to be physically, verbally and even sexually
abusive to them."
According to Dra. Dayan, there are a lot of reasons why a
battered woman does not readily leave an abusive partner — poverty,
self-blame and guilt arising from the latter's belief that she provoked
the violence, that she has an obligation to keep the family intact at
all cost for the sake of their children, and that she is the only hope
for her spouse to change.
The testimony of another expert witness, Dr. Pajarillo, is also
helpful. He had previously testified in suits involving violent family
relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein
such cases abounded. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office
in Quezon City. As such, he got involved in about forty (40) cases of
severe domestic violence, in which the physical abuse on the woman
would sometimes even lead to her loss of consciousness.
Dr. Pajarillo explained that "overwhelming brutality, trauma"
could result in post traumatic stress disorder, a from of "anxiety
neurosis or neurologic anxietism." After being repeatedly and severely
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Par. 2
JUSTIFYING CIRCUMSTANCES
Defense of Relatives
abused, battered persons "may believe that they are essentially
helpless, lacking power to change their situation, x x x [A]cute
battering incidents can have the effect of stimulating the development
of coping responses to the trauma at the expense of the victim's
ability to muster an active response to try to escape further trauma.
Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect."
A study conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that "even if a person has control
over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying
to escape." He said that it was the cognitive aspect—the individual's
thoughts—that proved all-important. He referred to this phenomenon
as—"learned helplessness." [T]he truth or facts of a situation turn out
to be less important than the individual's set of beliefs or perceptions
concerning the situation. Battered women don't attempt to leave
the battering situation, even when it may seem to outsiders that
escape is possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
circumstances."
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes
that he is capable of killing her, and that there is no escape. Battered
women feel unsafe, suffer from pervasive anxiety, and usually
fail to leave the relationship. Unless a shelter is available, she stays
with her husband, not only because she typically lacks a means of
self-support, but also because she fears that if she leaves she would
be found and hurt even more. (People vs. Genosa, G.R. No. 135981,
January 15, 2001).
Flight, incompatible with self-defense.
The appellant went into hiding after the hacking incident. Suffice it
to state that flight after the commission of the crime is highly evidentiary
of guilt, and incompatible with self-defense (People vs. Maranan, G.R.
No. L-47228-32, citing People vs. Maruhom, 132 SCRA 116).
Par. 2 - DEFENSE OF RELATIVES.
Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by
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Art. 11
Par. 2
consanguinity within the fourth civil degree, provided that the first
and second requisites prescribed in the next preceding circumstance
are present, and the further requisite, in case the provocation was
given by the person attacked, that the one making defense had no part
therein.
Relatives that can be defended.
1. Spouse.
2. Ascendants.
3. Descendants.
4. Legitimate, natural or adopted brothers and sisters, or
relatives by affinity in the same degrees.
5. Relatives by consanguinity within the fourth civil degree.
Relatives by affinity, because of marriage, are parents-in-law,
son or daughter-in-law, and brother or sister-in-law.
Death of the spouse terminates the relationship by affinity (Kelly
v. Neely, 12 Ark. 667, 659, 56 AmD 288; Chase vs. Jennings, 38 Me.
44,45); unless the marriage has resulted in issue who is still living, in
which case the relationship of affinity continues. (Dearmond vs. Dearmond,
10 Ind. 191; Bigelow vs. Sprague, 140 Mass. 425, 5 NE 144)
Consanguinity refers to blood relatives. Brothers and sisters are
within the second civil degree; uncle and niece or aunt and nephew are
within the third civil degree; and first cousins are within the fourth
civil degree.
Thus, if A acted in defense of the husband of A's sister-in-law,
there is no defense of relative, because the relation between A and
the husband of A's sister-in-law is not one of those mentioned in
paragraph 2 of Article 11. (People vs. Cabellon, 51 Phil. 846) The
husband of A's sister-in-law is a stranger to A for purpose of the law
on defense of relatives.
Basis of justification.
The justification of defense of relatives by reason of which the
defender is not criminally liable, is founded not only upon a humanitarian
sentiment, but also upon the impulse of blood which impels
men to rush, on the occasion of great perils, to the rescue of those
close to them by ties of blood. (Albert)
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JUSTIFYING CIRCUMSTANCES
Defense of Relatives
Requisites of defense of relatives:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or
repel it; and
3. In case the provocation was given by the person attacked,
the one making a defense had no part therein. (See People
vs. Eduarte, G.R. No. 72976, July 9, 1990, 187 SCRA 291,
295; People vs. Agapinay, G.R. No. 77776, June 27, 1990,
186 SCRA 812, 823)
First two requisites are the same as those of self-defense.
The meaning of "unlawful aggression" and that of "reasonable
necessity of the means employed to prevent or repel it" are already
explained in the discussion of self-defense.
Defense of relatives also requires that there be unlawful
aggression.
Of the three requisites of defense of relatives, unlawful
aggression is the most essential and primary, without which any
defense is not possible or justified. (People vs. Agapinay, supra)
Of the three (3) requisites of defense of relatives, unlawful
aggression is a condition sine qua non, for without it any defense is not
possible or justified. In order to consider that an unlawful aggression
was actually committed, it is necessary that an attack or material
aggression, an offensive act positively determining the intent of the
aggressor to cause an injury shall have been made; a mere threatening
or intimidating attitude is not sufficient to justify the commission of
an act which is punishable per se, and allow a claim of exemption
from liability on the ground that it was committed in self-defense
or defense of a relative. (Balunueco vs. Court of Appeals, G.R. No.
126968, April 9, 2003)
When two persons are getting ready to strike each other,
there can be no unlawful aggression, and hence, a relative of
either who butts in and administers a deadly blow on the other
to prevent him from doing harm is not acting in defense of a relative,
but is guilty of homicide. (People vs. Moro Munabe, C.A., 46
O.G. 4392)
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Art. 11
Par. 2
In this case, when he saw the deceased and his brother facing
each other in a fight, each holding a taki taki, an instrument for uprooting
rubber seedlings, the accused hit the deceased on the head
with his taki taki, causing the latter's death.
If the accused appears to be the aggressor, he cannot invoke the
defense of having acted in defense of a relative. (People vs. Panuril,
C.A., 40 O.G. 1477)
Must unlawful aggression exist as a matter of fact, or can it
be made to depend upon the honest belief of the one making
a defense?
Yes, it can be made to depend upon the honest belief of the one
making a defense. (U.S. vs. Esmedia, 17 Phil. 260, 264)
Thus, when A attacked and wounded B with a dagger, causing
the latter to fall down, but B immediately stood up and defended
himself by striking A with a bolo and as a result, A was seriously
wounded and fell in the mud with B standing in front of A in a position
as if to strike again in case A would stand up, there is no doubt that
A was the unlawful aggressor. But when the sons of A came, what
they saw was that their father was lying in the mud wounded. They
believed in good faith that their father was the victim of an unlawful
aggression. If they killed B under such circumstances, they are
justified.
In that case, there was a mistake of fact on the part of the sons
of A.
Even in self-defense, the Supreme Court of Spain held that when
a person while walking at night in an uninhabited place was ordered
by someone to halt and give his money, such person was justified
in shooting that someone, even if he turned out to be a friend, only
playing a practical joke.
Gauge of reasonable necessity of the means employed to repel the aggression.
The gauge of reasonable necessity of the means employed to
repel the aggression as against one's self or in defense of a relative is
to be found in the situation as it appears to the person repelling the
aggression. It has been held time and again that the reasonableness
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Par. 2
JUSTIFYING CIRCUMSTANCES
Defense of Relatives
of the means adopted is not one of mathematical calculation or "material
commensurability between the means of attack and defense" but
the imminent danger against the subject of the attack as perceived
by the defender and the instinct more than reason that moves the
defender to repel the attack. (Eslabon vs. People, No. L-66202, Feb.
24, 1984, 127 SCRA 785, 790-791)
Third requisite of defense of relative.
The clause, "in case the provocation was given by the person
attacked," used in stating the third requisite of defense of relatives,
does not mean that the relative defended should give provocation to
the aggressor. The clause merely states an event which may or may
not take place.
The phrase "in case" means "in the event that."
There is still a legitimate defense of relative even if the relative
being defended has given provocation, provided that the one defending
such relative has no part in the provocation.
Reason for the rule:
That although the provocation prejudices the person who gave
it, its effects do not reach the defender who took no part therein, because
the latter was prompted by some noble or generous sentiment
in protecting and saving a relative.
When the third requisite is lacking.
The accused was previously shot by the brother of the victim. It
cannot be said, therefore, that in attacking the victim, the accused
was impelled by pure compassion or beneficence or the lawful desire
to avenge the immediate wrong inflicted on his cousin. Rather, he
was motivated by revenge, resentment or evil motive because of a
running feud between them. (People vs. Toring, G.R. No. 56358, Oct.
26, 1990, 191 SCRA 38, 47)
The fact that the relative defended gave provocation is immaterial.
Thus, even if A had slapped the face of B who, as a consequence
of the act of A, immediately commenced to retaliate by drawing a
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Art. 11
Par. 3
knife and trying to stab A, and C, father of A, killed B in defense of
his son, C is completely justified, notwithstanding the fact that the
provocation was given by his son A.
But if C had induced his son A to injure B, thereby taking part
in the provocation made by A, C would not be completely justified
in killing B while the latter was about to stab A, because the third
requisite of defense of relative is lacking.
Suppose, the person defending his relative was also induced by
revenge or hatred, would there be a legitimate defense of relative?
As long as the three requisites of defense of relatives are present, it
will still be a legitimate defense.
Examples of defense of relatives.
1. The accused, at a distance of about 20 "brazas" from his house,
heard his wife shouting for help. He rushed to the house and
once inside saw the deceased on top of his wife. He drew his
bolo and hacked the deceased at the base of his neck when the
latter was forcibly abusing his wife. (People vs. Ammalun, C.A.,
51 O.G. 6250)
2. Domingo Rivera challenged the deceased to prove who of them
was the better man. When the deceased picked up a bolo and
went after him, Domingo Rivera took to flight. The deceased
pursued him and upon overtaking him inflicted two wounds.
Antonio Rivera, father of Domingo, rushed to his son's assistance
and struck with a cane the bolo from the hands of the deceased.
Domingo Rivera inflicted fatal wounds upon the deceased. While
the son was originally at fault for giving provocation to the deceased,
yet the father was justified in disarming the deceased,
having acted in lawful defense of his son. But Domingo Rivera
was declared guilty of the crime of homicide. (U.S. vs. Rivera,
26 Phil. 138)
Par. 3 - DEFENSE OF STRANGER.
Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites mentioned
in the first circumstance of this article are present and that the
person defending be not induced by revenge, resentment, or other
evil motive.
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Par. 3
JUSTIFYING CIRCUMSTANCES
Defense of Stranger
Requisites:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or
repel it; and
3. The person defending be not induced by revenge, resentment,
or other evil motive. (See People vs. Moral, No. L-31139,
Oct. 12, 1984, 132 SCRA 474, 485)
Note that the first two requisites are the same as those of selfdefense
and defense of relatives.
Basis of defense of stranger.
What one may do in his defense, another may do for him. Persons
acting in defense of others are in the same condition and upon the
same plane as those who act in defense of themselves. The ordinary
man would not stand idly by and see his companion killed without
attempting to save his life. (U.S. vs. Aviado, 38 Phil. 10, 13)
Third requisite of defense of stranger.
This Code requires that the defense of a stranger be actuated
by a disinterested or generous motive, when it puts down "revenge,
resentment, or other evil motive" as illegitimate. (Albert)
Who are deemed strangers?
Any person not included in the enumeration of relatives
mentioned in paragraph 2 of this article, is considered stranger for
the purpose of paragraph 3. Hence, even a close friend or a distant
relative is a stranger within the meaning of paragraph 3.
The person defending "be not induced."
Paragraph 3 of Art. 11 uses the phrase "be not induced." Hence,
even if a person has a standing grudge against the assailant, if he
enters upon the defense of a stranger out of generous motive to save
the stranger from serious bodily harm or possible death, the third
requisite of defense of stranger still exists. The third requisite would
be lacking if such person was prompted by his grudge against the assailant,
because the alleged defense of the stranger would be only a
pretext.
200
JUSTIFYING CIRCUMSTANCES
Avoidance of Greater Evil or Injury
Art. 11
Par. 4
If in defending his wife's brother-in-law, the accused acted also
from an impulse of resentment against the deceased, the third requisite
of defense of stranger is not present. (People vs. Cabellon and
Gaviola, 51 Phil. 851)
Examples of defense of stranger:
1. A was able to deprive B, a constabulary lieutenant, of his pistol
during the fray. B ordered C, a constabulary soldier under his
command, to search A for the pistol. When C was about to approach
A to search him, the latter stepped back and shot at C
who was able to avoid the shot. When A was about to fire again
at C, D, another constabulary soldier, fired at A with his rifle
which killed him.
Held: D was justified in killing A, having acted in defense of
stranger. (People vs. Ancheta, et al., 66 Phil. 638)
2. A heard screams and cries for help. When A responded, he saw
B attacking his (B's) wife with a dagger. A approached B and
struggled for the possession of the weapon, in the course of which
A inflicted wounds on B.
Held: A acted in defense of a stranger. (People vs. Valdez, 58
Phil. 31)
Furnishing a weapon to one in serious danger of being throttled is
defense of stranger.
A Japanese hit an old man 78 years of age on the face, shoved
him to the ground and attempted to choke him. The accused furnished
the old man with a small gaff, used by game cocks, with which the
old man killed his assailant. The accused was justified in furnishing
the old man with the gaff, it being in defense of stranger. (U.S. vs.
Subingsubing, 31 Phil. 376)
Par. 4 - AVOIDANCE OF GREATER EVIL OR INJURY.
Any person who, in order to avoid an evil or injury, does an
act which causes damage to another, provided that the following
requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to
avoid it;
201
Art. 11
Par. 4
JUSTIFYING CIRCUMSTANCES
Avoidance of Greater Evil or Injury
Third. That there be no other practical and less harmful
means of preventing it.
"Damage to another."
This term covers injury to persons and damage to property.
The Court of Appeals applied paragraph 4 of Art. 11 in a case
of slander by deed, a crime against honor, where the accused (a
woman) who was about to be married to the offended party eloped
with another man, after the offended partly had made preparations
for the wedding, the Court holding that there was a necessity on the
part of the accused of avoiding a loveless marriage with the offended
party, and that her refusal to marry him and her eloping with the
man whom she loved were justified and did not amount to the crime of
slander by deed. (People vs. Norma Hernandez, C.A., 55 O.G. 8465)
"That the evil sought to be avoided actually exists."
The evil must actually exist. If the evil sought to be avoided
is merely expected or anticipated or may happen in the future,
paragraph 4 of Art. 11 is not applicable.
Example of injury to person under paragraph 4:
A person was driving his car on a narrow road with due diligence
and care when suddenly he saw a "six by six" truck in front of his car.
If he would swerve his car to the left he would fall into a precipice, or
if he would swerve it to the right he would kill a passer-by. He was
forced to choose between losing his life in the precipice or sacrificing
the life of the innocent bystander. He chose the latter, swerved his
car to the right, ran over and killed the passer-by. (Guevara)
In view of this example and the principle involved, the killing
of the foetus to save the life of the mother may be held excusable.
"That the injury feared be greater than that done to avoid it."
Does the foregoing example violate the second condition required
by the Code, that is, that the injury feared be greater than that done
to avoid it?
No, because the instinct of self-preservation will always make
one feel that his own safety is of greater importance than that of
another.
202
JUSTIFYING CIRCUMSTANCES
Avoidance of Greater Evil or Injury
Art. 11
Par. 4
The greater evil should not be brought about by the negligence or
imprudence of the actor.
Thus, if in the example above, the driver drove his car at full
speed, disregarding the condition of the place, and although he
saw the "six by six" truck at a distance 500 meters away, he did
not slacken his speed, he cannot invoke paragraph 4 of this article,
because the state of necessity was brought about by his own reckless
imprudence.
When the accused was not avoiding any evil, he cannot invoke the
justifying circumstance of avoidance of a greater evil or injury.
Pio with a bolo and Severo with an axe attacked Geminiano
who was wounded. Nearby, Juan embraced Marianito, Geminiano's
son, who had a gun slung on his shoulder, and grappled with him.
Geminiano died. Pio, Severo and Juan were prosecuted for murder.
Juan invoked the justifying circumstance of avoidance of a greater evil
or injury (Par. 4, Article 11, R.P.C.) in explaining his act of preventing
Marianito from shooting Pio and Severo.
Held: His reliance on that justifying circumstance is erroneous.
The act of Juan Padernal in preventing Marianito de Leon from
shooting Ricohermoso and Severo Padernal, who were the aggressors,
was designed to insure the killing of Geminiano de Leon without any
risk to his assailants. Juan Padernal was not avoiding any evil when
he sought to disable Marianito. (People vs. Ricohermoso, et al., 56
SCRA 431)
Note: Even if Marianito was about to shoot Pio and Severo,
his act, being in defense of his father, is not an evil that
could justifiably be avoided by disabling Marianito.
Examples of damage to property under paragraph 4:
1. Fire breaks out in a cluster of nipa houses, and in order to
prevent its spread to adjacent houses of strong materials, the
surrounding nipa houses are pulled down. (Albert)
2. Where a truck of the Standard Vacuum Oil Co. delivering
gasoline at a gas station caught fire and, in order to prevent
the burning of the station, the truck was driven to the middle
of the street and there abandoned, but it continued to move and
203
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
204
thereafter crashed against and burned a house on the other side
of the street, the owner of the house had a cause of action against
the owner of the gas station under paragraph 2 of Art. 101, in
relation to paragraph 4 of Art. 11. (Tan vs. Standard Vacuum
Oil Co., 91 Phil. 672)
3. During the storm, the ship which was heavily loaded with goods
was in danger of sinking. The captain of the vessel ordered
part of the goods thrown overboard. In this case, the captain
is not criminally liable for causing part of the goods thrown
overboard.
The evil which brought about the greater evil must not result from a
violation of law by the actor.
Thus, an escaped convict who has to steal clothes in order to
move about unrecognized, does not act from necessity. (Albert) He is
liable for theft of the clothes.
There is civil liability under this paragraph.
Although, as a rule there is no civil liability in justifying circumstances,
it is only in paragraph 4 of Art. 11 where there is civil
liability, but the civil liability is borne by the persons benefited.
In cases falling within subdivision 4 of Article 11, the persons for
whose benefit the harm has been prevented, shall be civilly liable in
proportion to the benefit which they may have received. (Art. 101)
Par. 5. - FULFILLMENT OF DUTY OR LAWFUL
EXERCISE OF RIGHT OR OFFICE.
Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.
Requisites:
1. That the accused acted in the performance of a duty or in
the lawful exercise of a right or office;
2. That the injury caused or the offense committed be the
necessary consequence of the due performance of duty or
the lawful exercise of such right or office. (People vs. Oanis,
74 Phil. 257, 259; People vs. Pajenado, No. L-26458, Jan.
30, 1976, 69 SCRA 172, 177)
JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
205
In the case of People vs. Oanis, supra, the first requisite is
present, because the accused peace officers, who were trying to get a
wanted criminal, were acting in the performance of a duty.
The second requisite is not present, because through impatience,
over-anxiety, or in their desire to take no chances, the accused exceeded
in the fulfillment of their duty when they killed a sleeping
person whom they believed to be the wanted criminal without making
any previous inquiry as to his identity.
Fulfillment of duty.
People vs. Felipe Delima
(46 Phil. 738)
Facts: Lorenzo Napilon escaped from the jail where he was serving
sentence.
Some days afterwards the policeman, Felipe Delima, who was
looking for him, found him in the house of Jorge Alegria, armed with
a pointed piece of bamboo in the shape of a lance, and demanded
his surrender. The fugitive answered with a stroke of his lance. The
policeman dodged it, and to impose his authority fired his revolver,
but the bullet did not hit him. The criminal ran away, without parting
with his weapon. The peace officer went after him and fired again his
revolver, this time hitting and killing him.
The policeman was tried and convicted by the Court of First
Instance of homicide and sentenced to reclusion temporal and the
accessory penalties.
Held: The killing was done in the performance of a duty. The
deceased was under the obligation to surrender, and had no right, after
evading service of his sentence, to commit assault and disobedience
with a weapon in his hand, which compelled the policeman to resort
to such an extreme means, which, although it proved to be fatal, was
justified by the circumstances.
Article 8, No. 11 of the Penal Code (Art. 11, par. 5, Revised Penal
Code) being considered, Felipe Delima committed no crime, and he is
hereby acquitted with costs de oficio.
Ruling in Delima case, applied to the case of a guard who killed a
detained prisoner while escaping.
If a detained prisoner under the custody of the accused, a policeman
detailed to guard him, by means of force and violence, was able
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
206
to leave the cell and actually attempted to escape, notwithstanding
the warnings given by the accused not to do so, and was shot by the
accused, the latter is entitled to acquittal in accordance with the
ruling laid down in People vs. Delima, 46 Phil. 738. (People vs. Bisa,
C.A., 51 O.G. 4091)
Ruling in the Delima case, applied to a case where an escaping
detainee charged with a relatively minor offense of stealing
a chicken was shot to death by a policeman.
In this case, four members of the police force went after him
as soon as the detention prisoner had escaped. When the escaping
detainee saw one of the policemen, he lunged at the latter, hitting
him with a stone on the right cheek, as a consequence of which he
fell down, and while in that position on the ground, he was again
struck with a stone by the escaping detainee; thereafter, the latter
ran away pursued by the policeman and his companions; in the course
of the pursuit, the policeman fired a warning shot into the air, and as
the escaping detainee paid no heed to this, the policeman fired into
the air four times more and kept on pursuing him; as the latter was
apparently widening the distance between them, and fearing that
he might finally be able to elude arrest, the policeman fired directly
at him while he was in the act of jumping again into another part of
the creek, the shot having hit him on the back. (Valcorza vs. People,
30 SCRA 148-150)
People vs. Lagata
(83 Phil. 159)
Facts: When the guard called his order to assemble, one of the
prisoners was missing. So, he ordered the others to look for him. The
other prisoners scampered. The guard fired at two of the prisoners,
wounding one (Abria) and killing the other (Tipace). His reason was
to prevent the attempt of the prisoners to escape.
Held: As regards the shooting of Abria and Tipace, we are convinced
that the facts were as narrated by the witnesses for the prosecution.
Abria was shot when he was only three meters away from
the guard and the defense has not even shown that Abria attempted
to escape. Tipace was also shot when he was about four or five meters
away from the guard. The latter's allegation that Tipace was running,
— conveying the idea that said prisoner was in the act of escaping,
JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
207
— appears to be inconsistent with his own testimony to the effect that
Tipace was running sidewise, with his face looking towards him (the
guard), and with the undisputed fact that Tipace was hit near one axilla,
the bullet coming out from the opposite shoulder. If Tipace's purpose
was to escape, the natural thing for him to do would have been to give
his back to the guard.
It is clear that the guard had absolutely no reason to fire at Tipace.
The guard could have fired at him in self-defense or if absolutely necessary
to avoid his escape.
Five Justices believed that the prisoner who was killed was not
escaping. The four Justices who dissented believed that the prisoner
was escaping or running away when he was shot by the guard. All
the Justices agreed that a guard is justified in shooting an escaping
prisoner.
In the case of U.S. vs. Magno, et al., 8 Phil. 314, where the
prisoner attempted to escape, and the Constabulary soldiers, his
custodians, shot him to death in view of the fact that the prisoner,
disregarding the warning of his custodians, persisted in his attempt
to escape, and there was no other remedy but to fire at him in order
to prevent him from getting away, it was held that the Constabulary
soldiers acted in the fulfillment of duty and, therefore, were not
criminally liable.
Shooting an offender who refused to surrender is justified.
In the case of People vs. Gayrama, 60 Phil. 796, where the accused,
who had slashed with a bolo the municipal president on his
arm, ran away and refused to be arrested, it was stated that if the
chief of police had been armed with a revolver and had used it against
the accused, the act of the chief of police under those circumstances
would have been fully justified.
The reason for this is that it is the duty of peace officers to arrest
violators of the law not only when they are provided with the
corresponding warrant of arrest but also when they are not provided
with said warrant if the violation is committed in their own presence;
and this duty extends even to cases the purpose of which is merely to
prevent a crime about to be consummated. (U.S. vs. Bertucio, 1 Phil.
47; U.S. vs. Resaba, 1 Phil. 311; U.S. vs. Vallejo, 11 Phil. 193; U.S.
vs. Santos, 36 Phil. 853)
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
But shooting a thief who refused to be arrested is not justified.
A security guard accosted a thief who had stolen ore in the tunnel
of a mining company. The thief tried to flee. The security guard
ordered him to stop, but the latter disregarded the order. The security
guard fired four shots into the air with his carbine to scare the thief
and to stop him. As the thief continued to flee, saying that he would
not stop even if he died, the security guard fired a fifth shot directed
at the leg of the thief, but the bullet hit him in the lumbar region.
The thief died.
Held: The security guard acted in the performance of his duty,
but he exceeded the fulfillment of his duty by shooting the deceased.
He was adjudged guilty of homicide. (People vs. Bentres, C.A., 49
O.G. 4919)
In the case of People vs. Oanis, supra, it was held that although
an officer in making a lawful arrest is justified in using such force as
is reasonably necessary to secure and detain the offender, overcome
his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm, yet he is never justified in
using unnecessary force or in treating him with wanton violence, or
in resorting to dangerous means when the arrest could be effected
otherwise. (6 C.J.S., par. 13, p. 612) The doctrine is restated in the
Rules of Court thus: "No violence or unnecessary force shall be used
in making an arrest, and the person arrested shall not be subject to
any greater restraint than is necessary for his detention." (Rule 113,
Sec. 2, par. 2)
Legitimate performance of duty.
When the victim without apparent reason, but probably due
to drunkenness, fired his gun several times at the Alta Vista Club,
the accused and his partner had to intervene for they were with the
NBI. They would have been remiss in their duty if they did not. True,
the deceased companion of the accused shot the victim who died as a
result. But it would be doing injustice to a deceased agent of the law
who cannot now defend himself to state that when he approached the
trouble making victim he had a preconceived notion to kill. It must be
presumed that he acted pursuant to law when he tried to discharge his
duty as an NBI agent and that the killing of the victim was justified
under the circumstances. The same is true for the accused. (People
vs. Cabrera, No. L-31178, Oct. 28, 1980, 100 SCRA 424, 431)
208
JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
Illegal performance of duty.
The defense of fulfillment of a duty does not avail. The attitude
adopted by the deceased in putting his hands in his pocket is not
sufficient to justify the accused to shoot him. The deceased was
unarmed and the accused could have first warned him, as the latter
was coming towards him, to stop where he was, raise his hands, or do
the things a policeman is trained to do, instead of mercilessly shooting
him upon a mere suspicion that the deceased was armed. (People vs.
Tan, No. L-22697, Oct. 5, 1976, 73 SCRA 288, 292-293)
We find the requisites absent in the case at bar. Appellant was
not in the performance of his duties at the time of the shooting for the
reason that the girls he was attempting to arrest were not committing
any act of prostitution in his presence. If at all, the only person he was
authorized to arrest during that time was Roberto Reyes, who offered
him the services of a prostitute, for acts of vagrancy. Even then, the
fatal injuries that the appellant caused the victim were not a necessary
consequence of appelant's performance of his duty as a police officer.
The record shows that appellant shot the victim not once but twice after
a heated confrontation ensued between them. His duty to arrest the
female suspects did not include any right to shoot the victim to death.
(People vs. Peralta, G.R. No. 128116, January 24, 2001)
Distinguished from self-defense and from consequence of
felonious act.
Fulfillment of duty to prevent the escape of a prisoner is different
from self-defense, because they are based on different principles.
In the case of People us. Delima, supra, the prisoner who attacked
the policeman with "a stroke of his lance" was already running away
when he was shot, and, hence, the unlawful aggression had already
ceased to exist; but the killing was done in the performance of a duty.
The rule of self-defense does not apply.
The public officer acting in the fulfillment of a duty may appear
to be an aggressor but his aggression is not unlawful, it being necessary
to fulfill his duty.
Thus, when the guard levelled his gun at the escaping prisoner
and the prisoner grabbed the muzzle of the gun and, in the struggle
for the possession of the gun, the guard jerked away the gun from the
hold of the prisoner, causing the latter to be thrown halfway around,
and because of the force of the pull, the guard's finger squeezed the
209
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
210
trigger, causing it to fire, hitting and killing the prisoner, the guard
was acting in the fulfillment of duty. (People vs. Bisa, C.A., 51 O.G.
4091)
In either case, if the accused were a private person, not in the
performance of a duty, the result would be different. In the first
case, there would be no self-defense because there is no unlawful
aggression. In the second case, the one pointing the gun at another
would be committing a felony, (grave threat under Art. 282)
For instance, A levelled his gun at B, threatening the latter
with death. B grabbed the muzzle of the gun and in the struggle for
the possession of the gun, A squeezed the trigger causing it to fire,
hitting and killing B. In this case, A is criminally liable under Art.
4, par. 1, in relation to Art. 282 and Art. 249.
Lawful exercise of right or office.
Of right.
Under the Civil Code (Art. 429), the owner or lawful possessor
of a thing has the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use such force as may
be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property.
If in protecting his possession of the property he injured (not
seriously) the one trying to get it from him, he is justified under this
paragraph.
Under this paragraph (lawful exercise of a right), it is not
necessary that there be unlawful aggression against the person
charged with the protection of the property. If there is unlawful
aggression against the person charged with the protection of the
property, then paragraph 1 of Art. 11 applies, it being a defense of
right to property.
Doctrine of "self-help" under Art. 429, Civil Code, applied in
Criminal Law.
People vs. Depante
(C.A., 58 O.G. 926)
Facts: At about 9 o'clock in the morning of December 29, 1958,
while Mariano Depante was in a Chinese store, Paciencia Iquiran, his
JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
211
querida, saw him holding a five-peso bill in his left hand. Mariano had
just bought a package of cigarettes and the five-peso bill he was holding
was part of the change he had just received from the storekeeper.
Paciencia, who was in a bad mood because Mariano had not given her
support for sometime, approached him and after uttering insulting
words, grabbed the five-peso bill from Mariano's hand. When he acted
to recover the same, she grabbed his shirt, tearing the same. Mariano
gave her fist blows on the forehead, on the right side of the head and
on the middle part of her left arm, knocking her down. He was able to
regain possession of the five-peso bill.
Was the act of Paciencia in grabbing the five-peso bill an actual
or threatened unlawful physical invasion or usurpation of Mariano
Depante's property? We find that it was. More than that, the act could
be attempted robbery. The fact that Paciencia was a querida and that
Mariano had not supported her for sometime was not an exempting
or justifying circumstance. Robbery can even be committed by a wife
against her husband. Only theft, swindling and malicious mishief cannot
be committed by a wife against her husband. (Art. 332, Revised
Penal Code)
Did Mariano use such force as was reasonably necessary to repel
or prevent the actual or threatened unlawful physical invasion or
usurpation of his property? On this point, we find that he cannot claim
full justification, for the three fist blows which rendered Paciencia
unconscious for sometime were not reasonable, considering the sex of
the complainant. Hence, appellant is criminally liable. However, his
criminal liability may be mitigated under Article 69 of the Revised
Penal Code.
Held: The requisites mentioned in Art. 429, Civil Code, in relation
to Art. 11, paragraph 5, Revised Penal Code, to justify the act not being
all present, a penalty lower by one or two degrees than that prescribed
by law may be imposed.
The actual invasion of property may consist of a mere disturbance
of possession or of a real dispossession.
If it is mere disturbance of possession, force may be used against
it at any time as long as it continues, even beyond the prescriptive
period for an action of forcible entry. Thus, if a ditch is opened by
Pedro in the land of Juan, the latter may close it or cover it by force
at any time.
If the invasion, however, consists of a real dispossession, force
to regain possession can be used only immediately after the disposArt.
11 JUSTIFYING CIRCUMSTANCES
Par. 6 Obedience to an Order Issued for
Some Lawful Purpose
session. Thus, if Juan, without the permission of Pedro, picks up a
book belonging to the latter and runs off with it, Pedro can pursue
Juan and recover the book by force.
If the property is immovable, there should be no delay in the
use of force to recover it; a delay, even if excusable, such as when due
to the ignorance of the dispossession, will bar the right to the use of
force. Once the usurper's possession has become firm by the lapse of
time, the lawful possessor must resort to the competent authority
to recover his property. (Tolentino's comment on Article 429 of the
new Civil Code, Vol. II, p. 54, citing 3-1 Ennecerrus, Kipp and Wolff
92-93)
Of right
The exercise of a statutory right to suspend installment payments
under Section 23 of P.D. 957 is a valid defense against the
purported violations of B.P. Big. 22 that petitioner is charged with.
Petitioner's exercise of the right of a buyer under Article 23 of P.D.
No. 957 is a valid defense to the charges against him. (Sycip vs. Court
of Appeals, G.R. No. 125059, March 17, 2000)
Of office.
The executioner of the Bilibid Prison cannot be held liable for
murder for the execution performed by him because he was merely
acting in the lawful exercise of his office. (Guevara)
A surgeon who amputated the leg of a patient to save him from
gangrene is not liable for the crime of mutilation, because he was
acting in the lawful exercise of his office.
Par. 6. - OBEDIENCE TO AN ORDER ISSUED FOR SOME
LAWFUL PURPOSE.
Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
Requisites:
1. That an order has been issued by a superior.
2. That such order must be for some lawful purpose.
212
JUSTIFYING CIRCUMSTANCES Art. 11
Obedience to an Order Issued for Par. 6
Some Lawful Purpose
213
3. That the means used by the subordinate to carry out said
order is lawful.
Both the person who gives the order and the person who executes
it, must be acting within the limitations prescribed by law. (People
vs. Wilson and Dolores, 52 Phil. 919)
Example of absence of the third requisite.
The court ordered that the convict should be executed on a
certain date. The executioner put him to death on a day earlier than
the date fixed by the court.
The execution of the convict, although by virtue of a lawful
order of the court, was carried out against the provision of Art. 82.
The executioner is guilty of murder.
When the order is not for a lawful purpose, the subordinate
who obeyed it is criminally liable.
(1) One who prepared a falsified document with full knowledge of
its falsity is not excused even if he merely acted in obedience to
the instruction of his superior, because the instruction was not
for a lawful purpose. (People vs. Barroga, 54 Phil. 247)
(2) A soldier who, in obedience to the order of his sergeant, tortured
to death the deceased for bringing a kind of fish different from
that he had been asked to furnish a constabulary detachment, is
criminally liable. Obedience to an order of a superior is justified
only when the order is for some lawful purpose. The order to
torture the deceased was illegal, and the accused was not bound
to obey it. (People vs. Margen, et al., 85 Phil. 839)
The subordinate is not liable for carrying out an illegal order
of his superior, if he is not aware of the illegality of the order
and he is not negligent.
When the accused acted upon orders of superior officers, which
he, as military subordinate, could not question, and obeyed the orders
in good faith, without being aware of their illegality, without any fault
or negligence on his part, he is not liable because he had no criminal
intent and he was not negligent. (People vs. Beronilla, 96 Phil. 566)
Art. 12 EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
II. Exempting circumstances.
1. Definition
Exempting circumstances (non-imputah-lity) are those
grounds for exemption from punishment because there is
wanting in the agent of the crime any of the conditions
which make the act voluntary or negligent.
2. Basis
The exemption from punishment is based on the complete
absence of intelligence, freedom of action, or intent, or
on the absence of negligence on the part of the accused.
Under the Revised Penal Code, a person must act with
malice or negligence to be criminally liable. One who acts
without intelligence, freedom of action or intent does not
act with malice. On the other hand, one who acts without
intelligence, freedom of action or fault does not act with
negligence.
Art. 12. Circumstances which exempt from criminal liability.
— The following are exempt f r om criminal liability:
1. An imbecile or an i n s a n e person, u n l e s s the l a t t er
has a c t e d during a l u c id interval.
When the imbecile or an insane person has committed
an act w h i c h the l aw defines as a felony (delito), the court
sha'l order h i s confinement i n o n e o f t h e h o s p i t a l s or asylums
e s t a b l i s h e d for p e r s o n s thus afflicted, w h i c h he shall not be
permitted t o l e a v e without first o b t a i n i n g t h e permission of
the same court.
2. A p e r s o n under n i n e years of age.*
3. A p e r s o n over n i n e y e a r s of a g e and under fifteen,
unless he has a c t e d w i t h discernment, i n w h i c h case, s u ch
minor shall be p r o c e e d e d against i n accordance w i t h the
provisions of Article 80 of t h i s Code.
*A child fifteen years of age or under is exempt from criminal liability under
Rep. Act No. 9344 (Juvenile Justice and Welfare Act of 2006).
214
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
Art. 12
Par. 1
When s u c h minor i s adjudged t o b e criminally irresponsible,
t h e court, in conformity w i t h t h e provisions o f t h i s a n d the
preceding paragraph, shall commit h im t o t h e care and custody
of h i s family w h o shall be charged w i t h h i s surveillance and
education; o t h e r w i s e , he shall be committed t o the care of
some i n s t i t u t i o n or p e r s o n m e n t i o n e d i n s a i d Article 80.**
4. Any p e r s o n who, w h i l e performing a lawful act w i th
due care, c a u s e s a n injury by m e r e a c c i d e n t w i t h o u t fault or
i n t e n t i o n of c a u s i n g it.
5. Any p e r s o n who acts under the compulsion of an
i r r e s i s t i b l e force.
6. Any p e r s o n w h o a c t s u n d e r t h e impulse o f a n uncont
r o l l a b l e fear of a n equal or g r e a t e r injury.
7. Any p e r s o n w h o fails t o perform an act required by
law, w h e n p r e v e n t e d by some lawful or insuperable cause.
In exempting circumstances, there is a crime committed but
no criminal liability arises.
Technically, one who acts by virtue of any of the exempting
circumstances commits a crime, although by the complete absence of
any of the conditions which constitute free will or voluntariness of the
act, no criminal liability arise. (Guevara)
Burden of proof.
Any of the circumstances mentioned in Art. 12 is a matter of
defense and the same must be proved by the defendant to the satisfaction
of the court.
Par. 1 — An imbecile or an insane person, unless the latter has
acted during a lucid interval.
Imbecility distinguished from insanity.
This paragraph establishes the distinction between imbecility
and insanity, because while the imbecile is exempt in all cases from
"Impliedly repealed by Rep. Act No. 9344 (Juvenile Justice and Welfare Act
of 2006). See explanations, infra.
215
Art. 12
Par. 1
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
criminal liability, the insane is not so exempt if it can be shown that
he acted during a lucid interval.
During lucid interval, the insane acts with intelligence.
An imbecile is one who, while advanced in age, has a mental
development comparable to that of children between two and seven
years of age.
An imbecile within the meaning of Art. 12 is one who is deprived
completely of reason or discernment and freedom of the will at the
time of committing the crime. (People vs. Ambal, No. L-52688, Oct.
17, 1980, 100 SCRA 325, 333, citing People vs. Formigones, 87 Phil.
658, 660)
To constitute insanity, there must be complete deprivation of
intelligence or that there be a total deprivation of the freedom
of the will.
The Supreme Court of Spain held that in order that the
exempting circumstance of insanity may be taken into account, it is
necessary that there be a complete deprivation of intelligence while
committing the act, that is, that the accused be deprived of reason;
that he acts without the least discernment; or that there be a total
deprivation of freedom of the will. (People vs. Formigones, 87 Phil.
658,661)
Insanity exists when there is a complete deprivation of intelligence
in committing the act, that is, the accused is deprived of
reason, he acts without the least discernment, because there is a
complete absence of the power to discern, or that there is a total deprivation
of freedom of the will. (People vs. Puno, No. L-33211, June
29, 1981, 105 SCRA 151, 158-159, citing earlier cases. Also, People
vs. Magallano, No. L-32978, Oct, 30, 1980, 100 SCRA 570, 578-579)
Thus, mere abnormality of mental faculties is not enough, especially
if the offender has not lost consciousness of his acts. At most, it
is only a mitigating circumstance. (Art. 13, par. 9)
Procedure when the imbecile or the insane committed a
felony.
The court shall order his confinement in one of the hospitals
or asylums established for persons afflicted, which he shall not be
216
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
Art. 12
Par. 1
permitted to leave without first obtaining the permission of the
court.
But the court has no power to permit the insane person to leave
the ayslum without first obtaining the opinion of the Director of Health
that he may be released without danger. (Chin Ah Foo vs. Conception,
54 Phil. 775)
Who has the burden of proof to show insanity?
The defense must prove that the accused was insane at the time
of the commission of the crime, because the presumption is always
in favor of sanity. (People vs. Bascos, 44 Phil. 204, 206)
Sanity being the normal condition of the human mind, the
prosecution may proceed upon the presumption that the accused was
sane and responsible when the act was committed. The presumption
is always in favor of sanity and the burden of proof of insanity is on
the defense. (People vs. Aquino, G.R. No. 87084, June 27, 1990, 186
SCRA 851, 858, citing cases)
How much evidence is necessary to overthrow the presumption
of sanity?
The wife of the accused and his cousin testified that the accused
had been more or less continuously out of his mind for many years.
The assistant district health officer who, by order of the court,
examined the accused found that the accused was a violent maniac.
The physician expressed the opinion that the accused was probably
insane when he killed the deceased. The total lack of motive on the
part of the accused to kill the deceased bears out the assumption that
the former was insane. (People vs. Bascos, supra)
In order to ascertain a person's mental condition at the time of
the act, it is permissible to receive evidence of the condition of his
mind during a reasonable period both before and after that time.
Direct testimony is not required, nor are specific acts of derangement
essential to establish insanity as a defense. Mind can be known only
by outward acts. Thereby, we read the thoughts, the motives and
emotions of a person and come to determine whether his acts conform
to the practice of people of sound mind. To prove insanity, therefore,
circumstantial evidence, if clear and convincing, will suffice. (People
vs. Bonoan, 64 Phil. 93)
217
Art. 12
Par. 1
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
Insanity at the time of the commission of the felony distinguished
from insanity at the time of the trial.
When a person was insane at the time of the commission of the
felony, he is exempt from criminal liability.
When he was sane at the time of the commission of the crime,
but he becomes insane at the time of the trial, he is liable criminally.
The trial, however, will be suspended until the mental capacity of the
accused be restored to afford him a fair trial.
Evidence of insanity.
The evidence of insanity must refer to the time preceding the act
under prosecution or to the very moment of its execution. If the evidence
points to insanity subsequent to the commission of the crime,
the accused cannot be acquitted. He is presumed to be sane when he
committed it. (U.S. vs. Guevara, 27 Phil. 547, 550; People vs. Fausto,
No. L-16381, Dec. 30, 1961, 3 SCRA 863, 866-867; People vs. Puno,
No. L-33211, June 29, 1981, 105 SCRA 151, 158)
If the insanity is only occasional or intermittent in its nature,
the presumption of its continuance does not arise. He who relies on
such insanity proved at another time must prove its existence also at
the time of the commission of the offense. Where it is shown that the
defendant had lucid intervals, it will be presumed that the offense
was committed in one of them. But a person who has been adjudged
insane, or who has been committed to a hospital or to an asylum for
the insane, is presumed to continue to be insane. (People vs. Bonoan,
64 Phil. 87)
When defense of insanity is not credible.
1) Appellant himself testified that he was acting very sanely that
Monday morning, as shown by the fact that he went to the canteen
in a jovial mood "singing, whistling, and tossing a coin in
his hand;" he saw persons inside the canteen x x x; he noticed
the arrival of Lira who banged his folders on the table, elbowed
him, and said in a loud voice: "ano ka;" he saw Lira put his right
hand inside his pocket and with the other hand pushed a chair
towards him; he became "confused" because he remembered that
Lira threatened to kill him if he would see him again; at this
point "he lost his senses" and regained it when he heard the voice
of Mrs. Tan saying: "Loreto, don't do that;" and then he found
218
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
Art. 12
Par. 1
out that he had wounded Lira. If appellant was able to recall all
those incidents, we cannot understand why his memory stood
still at that very crucial moment when he stabbed Lira to return
at the snap of the finger as it were, after he accomplished the
act of stabbing his victim. The defense of insanity is incredible.
(People vs. Renegado, No. L-27031, May 31,1974, 57 SCRA 275,
286-287)
2) The accused knew that his wife was dead because he was
informed of her death. He said that his wife quarrelled with
him. She was irritable. He remembered that a week before
the incident he got wet while plowing. He fell asleep without
changing his clothes. He immediately surrendered after the
incident. He remembered that he rode on a tricycle. During his
confinement in jail he mopped the floor and cooked food for his
fellow prisoners. Sometimes, he worked in the town plaza or
was sent unescorted to buy food in the market. He is not insane.
(People vs. Ambal, No. L-52688, Oct. 17, 1980, 100 SCRA 325,
330-331, 337)
3) Government psychiatric doctors who had closely observed the
accused for a month and a half found him in good contact with
his environment and that he did not manifest any odd behavior
for in fact he could relate the circumstances that led to his
confinement. He exhibited remorse for killing the victim, his
wife, and he voluntarily surrendered to the police headquarters
where he executed a statement confessing his misdeed. He was
coherent and intelligent. Before the killing, he was working for
a living through fishing three times a week and he himself fixed
the prices for his catch. The presumption of sanity has not been
overcome. (People vs. Magallano, No. L-32978, Oct. 30, 1980,
100 SCRA 570, 577-578)
4) The accused was afflicted with "schizophrenic reaction" but knew
what he was doing; he had psychosis, a slight destruction of the
ego; in spite of his "schizophrenic reaction," his symptoms were
"not socially incapacitating" and he could adjust to his environment.
He could distinguish between right and wrong. He had
no delusions and he was not mentally deficient. The accused
was not legally insane when he killed the hapless and helpless
victim. (People vs. Puno, No. L-33211, June 29,1981,105 SCRA
151, 156, 159)
219
Art. 12
Par. 1
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
5) The mental illness of the accused was described as "organic
mental disorder with psychosis" but the doctor said that a
person suffering from insanity may know that what he is doing
is wrong. He also observed that the mental illness of the accused
came on and off. When interviewed upon his admission to the
mental institution, he recalled having taken 120 cc of cough
syrup and consumed about 3 sticks of marijuana before the
commission of the crime, an admission confirming his prior
extrajudicial confession. The presence of his reasoning faculties,
which enabled him to exercise sound judgment and satisfactorily
articulate the aforesaid matters, sufficiently discounts any
intimation of insanity of the accused when he committed the
dastardly felonies. (People vs. Aquino, G.R. No. 87084, June 27,
1990, 186 SCRA 851, 862-863)
Dementia praecox is covered by the term insanity.
Thus, when a person is suffering from a form of psychosis, a type
of dementia praecox, homicidal attack is common, because of delusions
that he is being interfered with sexually, or that his property is being
taken. During the period of excitement, such person has no control
whatever of his acts. (People vs. Bonoan, supra)
The unlawful act of the accused may be due to his mental disease
or a mental defect, producing an "irresistible impulse," as when the
accused has been deprived or has lost the power of his will which
would enable him to prevent himself from doing the act.
In the Bonoan case, supra, an irresistible homicidal impulse
was considered embraced in the term "insanity."
Schizophrenia, formerly called dementia praceox.
Medical books describe schizophrenia as a chronic mental
disorder characterized by inability to distinguish between fantasy
and reality and often accompanied by hallucinations and delusions.
Formerly called dementia pracecox, it is the most common
form of psychosis. (People vs. Aldemita, 145 SCRA 451 (1986)
Symptomatically, schizophrenic reactions are recognizable through
odd and bizarre behavior apparent in aloofness or periods of impulsive
destructiveness and immature and exaggerated emotionality, often
ambivalently directed. The interpersonal perceptions are distorted in
the more serious states by delusions and hallucinations. In the most
220
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
Art. 12
Par. 1
disorganized form of schizophrenic living, withdrawal into a fantasy
life takes place and is associated with serious thought disorder and
profound habit deterioration in which the usual social customs are
disregarded. During the initial stage, the common early symptom is
aloofness, a withdrawal behind barriers of loneliness, hopelessness,
hatred and fear. Frequently, the patient would seem preoccupied
and dreamy and may appear "faraway." He does not empathize
with the feelings of others and manifests little concern about the
realities of life situations. The schizophrenic suffers from a feeling
of rejection and an intolerable lack of self-respect. He withdraws
from emotional involvement with other people to protect himself
from painful relationships. There is shallowness of affect, a paucity
of emotional responsiveness and a loss of spontaneity. Frequently,
he becomes neglectful of personal care and cleanliness.A variety of
subjective experiences, associated with or influenced by mounting
anxiety and fears precede the earliest behavioral changes and oddities.
He becomes aware of increasing tension and confusion and becomes
distracted in conversation manifested by his inability to maintain a
train of thought in his conversations. Outwardly, this will be noticed
as blocks or breaks in conversations. The schizophrenic may not speak
or respond appropriately to his companions. He may look fixedly
away, or he may appear to stare, as he does not regularly blink his
eyes in his attempt to hold his attention. (People vs. Madarang, G.R.
No. 132319, May 12, 2000)
Kleptomania.
If the accused appears to have been suffering from kleptomania
when he committed the crime of theft, how shall we regard his
abnormal, persistent impulse or tendency to steal? Is it an exempting
circumstance or only a mitigating circumstance?
The courts in the United States have conflicting opinions. Some
believe that it is an exempting circumstance. Others believe that it
is only a mitigating circumstance.
In this jurisdiction, the question has not been brought before
the court for its determination.
The case of a person suffering from kleptomania must be
investigated by competent alienist or psychiatrist to determine
whether the impulse to steal is irresistible or not. If the unlawful act of
the accused is due "to his mental disease or a mental defect, producing
221
Art. 12
Par. 1
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
an irresistible impulse, as when the accused has been deprived or has
lost the power of his will which would enable him to prevent himself
from doing the act," the irresistible impulse, even to take another's
property, should be considered as covered by the term "insanity." In
the case of People vs. Bonoan, 64 Phil. 87, an irresistible homicidal
impulse was considered embraced in the term "insanity." It may be
said that a person who has lost the power of his will, at the moment,
also lost consciousness of his acts.
On the other hand, if the mental disease or mental defect of the
accused only diminishes the exercise of his will-power, and did not
deprive him of the consciousness of his acts, then kleptomania, if it be
the result of his mental disease or mental defect, is only a mitigating
circumstance.
Epilepsy may be covered by the term "insanity."
Epilepsy is a chronic nervous disease characterized by fits,
occurring at intervals, attended by convulsive motions of the muscles
and loss of consciousness. Where the accused claimed that he was an
epileptic but it was not shown that he was under the influence of an
epileptic fit when he committed the offense, he is not exempt from
criminal liability. (People vs. Mancao and Aguilar, 49 Phil. 887)
Feeblemindedness is not imbecility.
In the case of People vs. Formigones, supra, it was held that
feeblemindedness is not exempting, because the offender could
distinguish right from wrong. An imbecile or an insane cannot
distinguish right from wrong.
Pedophilia is not insanity.
The doctor's testimony, however, did not help accused's case
because although he admitted having initially categorized accused
as insane, the doctor eventually diagnosed accused to be afflicted
with pedophilia, a mental disorder not synonymous with insanity. He
explained that pedophilia is a sexual disorder wherein the subject has
strong, recurrent and uncontrollable sexual and physical fantasies
about children which he tries to fulfill, especially when there are
no people around. He claimed, however, that despite his affliction,
the subject could distinguish between right and wrong. In fact, he
222
EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
Art. 12
Par. 1
maintained that pedophilia could be committed without necessarily
killing the victim although injuries might be inflicted on the victim
in an effort to repel any resistance. (People vs. Diaz, G.R. No. 130210,
Dec. 8,1999)
Amnesia is not proof of mental condition of the accused.
Amnesia, in and of itself, is no defense to a criminal charge
unless it is shown by competent proof that the accused did not know
the nature and quality of his action and that it was wrong. Failure to
remember is in itself no proof of the mental condition of the accused
when the crime was performed. (People vs. Tabugoca.G.R. No. 125334,
Jan. 28, 1998)
Other cases of lack of intelligence.
1. Committing a crime while in a dream.
One who, while sleeping, suddenly got up, got a bolo,
and upon meeting his wife who tried to stop him, wounded
her and also attacked other persons, is not criminally liable,
it appearing that the act was committed while in a dream.
(People vs. Taneo, 58 Phil. 255) The act was done without
criminal intent.
Somnambulism or sleepwalking, where the acts of the
person afflicted are automatic, is embraced in the plea of
insanity and must be clearly proven. (People vs. Gimena,
55 Phil. 604)
In the case of U.S. us. Odicta, 4 Phil. 309, it was
held that the case of the somnambulist falls under the
rule that a person is not criminally liable if his acts are
not voluntary. The ruling in the case of People vs. Gimena
and that in the case of U.S. vs. Odicta are not inconsistent.
The act of a person is not voluntary when he does not
have intelligence and intent while doing the act.
a. Hypnotism. Whether or not hypnotism is so effective
as to make the subject act during artificial somnambulism,
is still a debatable question. (Albert)
2. Committing a crime while suffering from malignant
malaria.
223
Art. 12
Par. 2
EXEMPTING CIRCUMSTANCES
Minor Under Nine Years
Thus, one who was suffering from malignant malaria
when she wounded her husband who died as a consequence
is not criminally liable, because such illness affects the
nervous system and causes among others such complication
as acute melancholia and insanity at times. (People vs.
Lacena, 69 Phil. 350)
Basis of paragraph 1.
The exempting circumstance of insanity or imbecility is based
on the complete absence of intelligence, an element of voluntariness.
Par. 2. — A person under nine years of age.
"Under nine years" to be construed "nine years or less."
The phrase "under nine years" should be construed "nine years or
less;" as may be inferred from the next subsequent paragraph which
does not totally exempt a person "over nine years of age" if he acted
with discernment. (Guevara; See Art. 189, P.D. No. 603)
Age of absolute irresponsibility raised to fifteen years of
age.
Republic Act No. 9344 otherwise known as "Juvenile Justice
and Welfare Act of 2006" raised the age of absolute irresponsibility
from nine (9) to fifteen (15) years of age.
Under Section 6 of the said law, a child fifteen (15) years of
age or under at the time of the commission of the offense shall be
exempt from criminal liability. However, the child shall be subject
to an intervention program as provided under Section 20 of the same
law.
Basis of paragraph 2.
The exempting circumstance of minority is based also on the
complete absence of intelligence.
224
EXEMPTING CIRCUMSTANCES Art. 12
Minor Over Nine and Under Fifteen Years Par. 3
Par. 3. — A person over nine years of age and under fifteen,
unless he has acted with discernment, in which case,
such minor shall be proceeded against in accordance
with the provisions of Article 80 of this Code.
Paragraph 3, Article 12 RPC impliedly repealed by Republic
Act No. 9344.
Paragraph 3, Article 12 of the Revised Penal Code is deemed
repealed by the provision of Republic Act 9344 declaring a child fifteen
years of age or under exempt from criminal liability. The law provides
thus:
"Section 6. Minimum Age of Criminal Responsibility.
— A child fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from criminal liability.
However, the child shall be subject to an intervention program
pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18)
years of age shall likewise be exempt from criminal liability
and be subjected to an intervention program, unless he/she
has acted with discernment, in which case, such child shall be
subject to the appropriate proceedings in accordance with this
Act.
The exemption from criminal liability herein established
does not include exemption from civil liability, which shall be
enforce in accordance with existing laws."
Children above fifteen (15) but below eighteen (18) years of age
who acted without discernment exempt from criminal liability.
A minor under eighteen (18) but above fifteen (15) must have
acted with discernment to incur criminal liability. The minor is
presumed to have acted without discernment since the phrase
"unless he/she acted with discernment" indicates an exception to the
general rule that a minor under 18 but above 15 has acted without
discernment.
Thus, it is incumbent upon the prosecution to prove that a
minor who is over 15 but under 18 years of age has acted with
discernment, in order for the minor not to be entitled to this exempting
circumstance.
225
Art. 12
Par. 3
EXEMPTING CIRCUMSTANCES
Minor Over Nine and Under Fifteen Years
Periods of criminal responsibility
Thus, under the Code as amended by Republic Act No. 9344
(Juvenile Justice and Welfare Act of 2006), the life of a human being
is divided into four periods:
(1) The age of absolute irresponsibility — 9 years and below
(infancy).
(2) The age of conditional responsibility — between 9 and 15
years.
(3) The age of full responsibility — 18 or over (adolescence) to
70 (maturity).
(4) The age of mitigated responsibility — over 9 and under 15,
offender acting with discernment; 15 or over but less than
18; over 70 years of age.
Hence, senility which is the age over 70 years, although said to
be the second childhood, is only a mitigated responsibility. It cannot
be considered as similar to infancy which is exempting.
Meaning of "discernment."
The discernment that constitutes an exception to the exemption
from criminal liability of a minor under fifteen years of age but over
nine, who commits an act prohibited by law, is his mental capacity to
understand the difference between right and wrong, and such capacity
may be known and should be determined by taking into consideration
all the facts and circumstances afforded by the records in each case,
the very appearance, the very attitude, the very comportment and
behaviour of said minor, not only before and during the commission of
the act, but also after and even during the trial. (People vs. Doquena,
68 Phil. 580, 583; Guevarra vs. Almodovar, G.R. No. 75256, Jan. 26,
1989, 169 SCRA 476, 481)
Discernment and Intent distinguished.
The terms "intent" and "discernment" convey two distinct
thoughts. While both are products of the mental processes within a
person, "intent" refers to the desired act of the person while "discernment"
relates to the moral significance that a person ascribes to the
said act. Hence, a person may not intend to shoot another but may be
226
EXEMPTING CIRCUMSTANCES Art. 12
Minor Over Nine and Under Fifteen Years Par. 3
aware of the consequences of his negligent act which may cause injury
to the same person in negligently handling an air rifle. (Guevara vs.
Almodovar, supra, at 481)
Discernment may be shown by (1) the manner the crime was
committed, or (2) the conduct of the offender after its commission.
1. Manner of committing the crime.
Thus, when the minor committed the crime during
nighttime to avoid detection or took the loot to another town
to avoid discovery, he manifested discernment. (People vs.
Magsino, G.R. No. 40176, May 3, 1934)
2. Conduct of offender.
The accused, 11 years old (disregard age: Case cited
to illustrate discernment of a minor) shot the offended
party, who had caught him shooting at the latter's mango
fruits, with a slingshot hitting the latter in one of his eyes,
and after having done so said: "Putang ina mo, mabuti matikman
mo." It was held that the first part of the remark
clearly manifested the perverted character of the accused
and the second part reflected his satisfaction and elation
upon the accomplishment of his criminal act. These facts
indicate discernment on the part of the minor. (People vs.
Alcabao, C.A., 44 O.G. 5006)
Facts from which age is presumed must be stated for the
record.
The officer or court called upon to make a finding as to the
age of the accused should state in the record, not merely a general
statement of the personal appearance of the accused, but the particular
fact or facts concerning personal appearance which lead such
officer or court to believe that his age was as stated by said officer
or court.
It would seem that this provision presupposes that the minor
committed the crime, but that the court finds that he acted without
discernment.
227
Art. 12
Par. 3
EXEMPTING CIRCUMSTANCES
Minor Over Nine and Under Fifteen Years
Determination of Age.
The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with
the law until he/she is proven to be eighteen (18) years old or older.
The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence
of these documents, age may be based on information from the child
himself/herself, testimonies of other persons, the physical appearance
of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict with the law
prior to the filing of the information in any appropriate court may file a
case in a summary proceeding for the determination of age before the
Family Court which shall decide the case within twenty-four (24) hours
from receipt of the appropriate pleadings of all interested parties.
If a case has been filed against the child in conflict with the law
and is pending in the appropriate court, the person shall file a motion
to determine the age of the child in the same court where the case
is pending. Pending hearing on the said motion, proceedings on the
main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges
and other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law. (Sec. 7, Rep.
Act No. 9344)
The allegation of "with intent to kill" in the information is
sufficient allegation of discernment.
Where the information for homicide filed in the court of first
instance alleges "that said accused, with the intent to kill, did then
and there wilfully, criminally, and feloniously push one Lolita Padilla,
a child 8 1/2 years of age, into a deep place x x x and as a consequence
thereof Lolita got drowned and died right then and there," it is held
that the requirement that there should be an allegation that she acted
with discernment should be deemed amply met with the allegation in
the information that the accused acted "with the intent to kill." The
allegation clearly conveys the idea that she knew what would be the
consequence of her unlawful act of pushing her victim into deep water
and that she knew it to be wrong. (People vs. Neito, 103 Phil. 1133)
228
EXEMPTING CIRCUMSTANCES
Accident
Art. 12
Par. 4
Basis of paragraph 3.
The exempting circumstance in paragraph 3 of Art. 12 is based
also on the complete absence of intelligence.
Par. 4. — Any person who, while performing a lawful act with
due care, causes an injury by mere accident without
fault or intention of causing it.
Elements:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it. (See People vs.
Vitug, 8 CAR [2s] 905, 909)
The person must be performing a lawful act.
While defending himself against the unjustified assault upon his
person made by his assailant, appellant Galacgac fired his revolver
at random, wounding two innocent persons.
Held: The discharge of a firearm in such a thickly populated place
in the City of Manila being prohibited and penalized by Article 155
of the Revised Penal Code, appellant Galacgac was not performing a
lawful act when he accidentally hit and wounded Marina Ramos and
Alfonso Ramos. Hence, the exempting circumstance provided for in
Article 12, paragraph 4, of the Revised Penal Code, cannot be properly
invoked by appellant Galacgac. (People vs. Galacgac, 54 O.G. 1027)
Striking another with a gun in self-defense, even if it fired and
seriously injured the assailant, is a lawful act.
When the defendant drew his gun and with it struck the
deceased after the latter had given him a fist blow on the shoulder,
the defendant was performing a lawful act. The striking with the
gun was a legitimate act of self-defense. But we might ask—was
the striking done with due care as required by the second element
for exemption? We believe so, since the striking could not have been
229
Art. 12
Par. 4
EXEMPTING CIRCUMSTANCES
Accident
done in any other manner except how it was done so by the appellant.
Whether the gun was cocked or uncocked, the striking could not have
been done in any other manner. The injury, therefore, that resulted
from the firing of the gun was caused by accident and without any
fault or intention on the part of defendant in causing it, in accordance
with the 3rd and 4th requisites.
The trial court puts much stress on the fact that since the
appellant allegedly had his finger on the trigger with the gun already
cocked it was reckless and imprudent of him to have used the gun
in striking the deceased. We do not agree. Under the circumstances,
striking him, as was done here, and not shooting him, was the more
prudent and reasonable thing to do, whether the gun was cocked or
uncocked. (People vs. Vitug, 8 C.A. Rep. 905; People vs. Tiongco, C.A.,
63 O.G. 3610)
But the act of drawing a weapon in the course of a quarrel, not
being in self-defense, is unlawful—it is light threat (Art. 285, par. 1,
Rev. Penal Code), and there is no room for the invocation of accident as
a ground for exemption. (People vs. Reyta, Jr., 13 C.A. Rep. 1190)
The person performing a lawful act must do so with due care,
without fault or negligence.
Appellant claims exemption from criminal liability under Article
12, paragraph 4, of the Revised Penal Code which provides that any
person who, while performing a lawful act with due care, causes
an injury by mere accident without fault or intention of doing it is
exempted from criminal liability. But, this exempting circumstance
cannot be applied to the appellant because its application presupposes
that there is no fault or negligence on the part of the person performing
the lawful act with due care, whereas, in this case, the prosecution
had duly established that the appellant was guilty of negligence.
(People vs. San Juan, C.A., 65 O.G. 11264)
Examples of accident.
U.S. vs. Tahedo
(15 Phil. 196)
Facts: The accused, while hunting, saw wild chickens and fired
a shot. The slug, after hitting a wild chicken, recoiled and struck the
230
EXEMPTING CIRCUMSTANCES
Accident
Art. 12
Par. 4
tenant who was a relative of the accused. The man who was injured
died.
Held: If life is taken by misfortune or accident while the actor is
in the performance of a lawful act executed with due care and without
intention of doing harm, there is no criminal liability.
There is no question that the accused was engaged in the
performance of a lawful act when the accident occurred. He was not
negligent or at fault, because the deceased was not in the direction
at which the accused fired his gun. It was not foreseeable that the
slug would recoil after hitting the wild chicken.
A chauffeur, while driving his automobile on the proper side of
the road at a moderate speed and with due diligence, suddenly and
unexpectedly saw a man in front of his vehicle coming from the sidewalk
and crossing the street without any warning that he would do
so. Because it was not physically possible to avoid hitting him, the
said chauffeur ran over the man with his car. It was held that he was
not criminally liable, it being a mere accident. (U.S. vs. Tayongtong,
21 Phil. 476)
Just as the truck then being driven by the accused was passing
the slow-moving road roller, a boy about 10 or 12 years of age jumped
from the step of the side board of the road roller directly in front of
the truck, and was knocked down, ran over and instantly killed. The
accused was acquitted of all criminal liability arising out of the unfortunate
accident which resulted in the death of the boy. (U.S. vs.
Knight, 26 Phil. 216)
What is an accident?
An accident is something that happens outside the sway of our
will, and although it comes about through some act of our will, lies
beyond the bounds of humanly foreseeable consequences.
If the consequences are plainly foreseeable, it will be a case of
negligence. (Albert)
Accident presupposes lack of intention to commit the wrong
done.
The exempting circumstance of Art. 12(4) of the Revised Penal
Code refers to purely accidental cases where there was absolutely
231
Art. 12
Par. 4
EXEMPTING CIRCUMSTANCES
Accident
no intention to commit the wrong done. It contemplates a situation
where a person is in the act of doing something legal, exercising due
care, diligence and prudence but in the process, produces harm or
injury to someone or something not in the least in the mind of the
actor — an accidental result flowing out of a legal act. (People vs.
Gatela, 17 CAE [2s] 1047, 1055)
Case of negligence, not accident.
As the two persons fighting paid him no attention, the defendant
drew a .45 caliber pistol and shot twice in the air. The bout continued,
however, so he fired another shot at the ground, but unfortunately the
bullet ricocheted and hit Eugenio Francisco, an innocent bystander,
who died thereafter. Held: The mishap should be classed as homicide
through reckless imprudence. It is apparent the defendant wilfully
discharged his gun, without taking the precautions demanded by the
circumstances that the district was populated, and the likelihood that
his bullet would glance over the hard pavement of the thoroughfare.
(People vs. Nocum, 77 Phil. 1018)
Comment: The consequence here was clearly foreseeable.
Accident and negligence, intrinsically contradictory.
In Jarco Marketing Corporation v. Court of Appeals, 321 SCRA
375 (1999), the Supreme Court held that an accident is a fortuitive
circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human
agency, an event which under the circumstance is unusual or
unexpected by the person to whom it happens. Negligence, on the
other hand, is the failure to observe, for the protection of the interest
of another person, that degree of care, precaution and vigilance which
the circumstances justly demand without which such other person
suffers injury. Accident and negligence are intrinsically contradictory;
one cannot exist with the other. (People vs. Fallorina, G.R. No. 137347,
March 4, 2004)
The death of the deceased in this case was considered caused
by mere accident.
The accused was prosecuted for having killed her husband.
Explaining what took place, she said, in part: "When the door was
ajar my son went in, and then my husband pushed it and as I saw
232
EXEMPTING CIRCUMSTANCES
Accident
Art. 12
Par. 4
that he was about to crush my son's head, I jabbed my husband with
the point of the umbrella downwards to prevent him from crushing
my son's head." We find nothing improbable in this statement and if
we add to this the absence of any reasonable motive to prompt said
defendant to injure her husband, we are compelled to conclude that
in thrusting her umbrella in the opening of the door in question, she
did so to free her son from the imminent danger of having his head
crushed or being strangled; and if she thus caused her husband's
injury, it was by a mere accident, without any fault or intention to
cause it. (People vs. Ayaya, 52 Phil. 354, 358)
When claim of accident not appreciated.
1) Repeated blows negate claim of wounding by mere accident.
(People vs. Taylaran, No. L-49149, Oct. 23,1981,108 SCRA
373, 376)
2) Accidental shooting is negated by threatening words
preceding it and still aiming the gun at the prostrate body of
the victim, instead of immediately helping him. (People vs.
Reyes, No. L-33154, Feb. 27, 1976, 69 SCRA 474, 478)
3) Husband and wife had an altercation. The deceased husband
got a carbine and holding it by the muzzle raised it above
his right shoulder in an attempt to strike accused wife.
She side-stepped and grappled with him for the possession
of the gun and in the scuffle the gun went off, the bullet
- hitting her husband in the neck. So went the version of the
accused. Held: It was difficult, if not well-nigh impossible,
for her who was frail and shorter than her husband, who
was robust and taller, to have succeeded in taking hold
of the carbine, for if her husband was to strike her with
the butt of the carbine and she side-stepped, he would not
have continued to hold the carbine in a raised position.
Actual test during the trial showed that the carbine was
not defective and could not fire without pressing the trigger.
The absence of any powder burns at the entrance of the
wound in the body of the deceased is convincing proof that
he was shot from a distance, and not with the muzzle of
the gun almost resting on his shoulder or the back of the
neck. (People vs. Samson, No. L-14110, March 29, 1963, 7
SCRA 478, 482-483)
233
Art. 12
Par. 5
EXEMPTING CIRCUMSTANCES
Irresistible Force
Basis of paragraph 4.
The exempting circumstance in paragraph 4 of Art. 12 is based
on lack of negligence and intent. Under this circumstance, a person
does not commit either an intentional felony or a culpable felony.
Par. 5. — Any person who acts under the compulsion of an
irresistible force.
This exempting circumstance presupposes that a person is
compelled by means of force or violence to commit a crime.
Elements:
1. That the compulsion is by means of physical force.
2. That the physical force must be irresistible.
3. That the physical force must come from a third person.
Before a force can be considered to be an irresistible one, it must
produce such an effect upon the individual that, in spite of all resistance,
it reduces him to a mere instrument and, as such, incapable of
committing a crime. It must be such that, in spite of the resistance
of the person on whom it operates, it compels his members to act and
his mind to obey. Such a force can never consist in anything which
springs primarily from the man himself; it must be a force which acts
upon him from the outside and by a third person. (U.S. vs. Elicanal,
35 Phil. 209)
Example:
In the case of U.S. vs. Caballeros, et al., 4 Phil. 350, it
appears that Baculi, one of the accused who was not a member
of the band which murdered some American school-teachers, was
in a plantation gathering bananas. Upon hearing the shooting,
he ran. However, Baculi was seen by the leaders of the band
who called him, and striking him with the butts of their guns,
they compelled him to bury the bodies.
Held: Baculi was not criminally liable as accessory for
concealing the body of the crime (Art. 19) of murder committed
234
EXEMPTING CIRCUMSTANCES
Irresistible Force
Art. 12
Par. 5
by the band, because Baculi acted under the compulsion of an
irresistible force.
No compulsion of irresistible force.
The pretension of an accused that he was threatened with a gun
by his friend, the mastermind, is not credible where he himself was
armed with a rifle. (People vs. Sarip, Nos. L-31481-31483, Feb. 28,
1979, 88 SCRA 666, 673-674)
Passion or obfuscation cannot be irresistible force.
The irresistible force can never consist in an impulse or
passion, or obfuscation. It must consist of an extraneous force
coming from a third person. (Dec. of Sup. Ct. of Spain, March 15,
1876)
Basis of paragraph 5.
The exempting circumstance in paragraph 5 of Art. 12 is based
on the complete absence of freedom, an element of voluntariness.
A person who acts under the compulsion of an irresistible force,
like one who acts under the impulse of uncontrollable fear of equal
or greater injury, is exempt from criminal liability because he does
not act with freedom. (People vs. Loreno, No. L-54414, July 9, 1984,
130 SCRA 311, 321)
Nature of force required.
The force must be irresistible to reduce the actor to a mere
instrument who acts not only without will but against his will.
The duress, force, fear or intimidation must be present, imminent
and impending and of such a nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act is not done.
A threat of future injury is not enough. The compulsion must be of
such a character as to leave no opportunity to the accused for escape
or self-defense in equal combat. (People vs. Loreno, No. L-54414, July
9, 1984, 130 SCRA 311, 321-322, citing People vs. Villanueva, 104
Phil. 450)
235
Art. 12
Par. 6
EXEMPTING CIRCUMSTANCES
Uncontrollable Fear
Par. 6. — Any person who acts under the impulse of an
uncontrollable fear of an equal or greater injury.
This exempting circumstance also presupposes that a person
is compelled to commit a crime by another, but the compulsion is by
means of intimidation or threat, not force or violence.
Elements:
1. That the threat which causes the fear is of an evil greater
than or at least equal to, that which he is required to commit;
2. That it promises an evil of such gravity and imminence
that the ordinary man would have succumbed to it. (U.S.
vs. Elicanal, 35 Phil. 209, 212, 213)
For the exempting circumstance of uncontrollable fear to
be invoked successfully, the following requisites must concur: (a)
existence of an uncontrollable fear; (b) the fear must be real and
imminent; and (c) the fear of an injury is greater than or at least
equal to that committed. (People vs. Petenia, No. L-51256, Aug. 12,
1986, 143 SCRA 361, 369)
Illustration:
Liberato Exaltacion and Buenaventura Tanchinco were
compelled under fear of death to swear allegiance to the
Katipunan whose purpose was to overthrow the government by
force of arms.
In this case, the accused cannot be held criminally liable
for rebellion, because they joined the rebels under the impulse
of an uncontrollable fear of an equal or greater injury. (U.S. vs.
Exaltacion, 3 Phil. 339)
The penalty for rebellion, the crime which Exaltacion was required
to commit, is prision mayor, that is, imprisonment for a period of from
6 years and 1 day to 12 years, and fine. The act which he was asked to
commit was to swear allegiance to the Katipunan and become one of
those engaged in overthrowing the government by force of arms. If he
did not commit it, he would be killed. Death is a much greater injury
than imprisonment for 12 years and paying a fine.
236
EXEMPTING CIRCUMSTANCES
Uncontrollable Fear
Art. 12
Par. 6
But if A had threatened to burn the house of B should the latter
not kill his (B's) father, and B killed his father for fear that A might
burn his (B's) house, B is not exempt from criminal liability for the
reason that the evil with which he was threatened was much less
than that of killing his father.
Nature of duress as a valid defense.
Duress as a valid defense should be based on real, imminent, or
reasonable fear for one's life or limb and should not be speculative,
fanciful, or remote fear. (People vs. Borja, No. L-22947, July 12,1979,
91 SCRA 340, 355, citing People vs. Quilloy, 88 Phil. 53)
The accused must not have opportunity for escape or selfdefense.
A threat of future injury is not enough. The compulsion must
be of such a character as to leave no opportunity to the accused for
escape or self-defense in equal combat.
Duress is unavailing where the accused had every opportunity
to run away if he had wanted to or to resist any possible aggression
because he was also armed. (People vs. Palencia, No. L-38957, April
30, 1976, 71 SCRA 679, 690; People vs. Abanes, No. L-30609, Sept.
28, 1976, 73 SCRA 44, 47)
Where the accused, who testified that he was intimidated into
committing the crime, had several opportunities of leaving the gang
which had decided to kidnap the victim, his theory that he acted
under intimidation is untenable. (People vs. Parulan, 88 Phil. 615,
623)
Where the accused testified that he joined the band because he
was threatened by the leader thereof, but it appears that the leader
was armed with a revolver only, while the accused was armed with
a rifle, so that he could have resisted said leader, it was held that
the accused did not act under the impulse of an uncontrollable fear
of an equal or greater injury. (People vs. Vargas and Kamatoy, C.A.,
45 O.G. 1332)
As regards accused Domingo Golfeo, the evidence is clear that
it was he who first struck Areza with the butt of his gun hitting him
on the side of his body, then gave him a fist blow on his stomach,
237
Art. 12
Par. 6
EXEMPTING CIRCUMSTANCES
Uncontrollable Fear
and after he had been taken to a secluded place, it was he who
ordered Areza to lie down in the fashion adopted by the Kempetai
during gloomy days of Japanese occupation and in that position
gave him a blow on the back of his neck which almost severed his
head from the body. His participation in the killing of Areza cannot
therefore be doubted. His only defense is that he did so in obedience
to the order of his commander, and because he acted under the
influence of uncontrollable fear, he should be exempt from criminal
responsibility.
This defense of Golfeo is clearly untenable not only because of
the well-settled rule that obedience to an order of a superior will only
justify an act which otherwise would be criminal when the order is
for a lawful purpose, but also because the circumstances under which
Golfeo participated in the torture and liquidation of Areza cannot
in any way justify his claim that he acted under an uncontrollable
fear of being punished by his superiors if he disobeyed their order.
In the first place, at the time of the killing, Golfeo was armed with
an automatic carbine such that he could have protected himself from
any retaliation on the part of his superiors if they should threaten
to punish him if he disobeyed their order to kill Areza. Tn the second
place, the evidence shows that Areza was brought to a secluded place
quite far from that where his superiors were at the time and in such
a predicament, he and his companion Arsenal could have escaped
with Areza to avoid the ire of their superiors. The fact that he carried
out their order although his superiors were at some distance from
him and that without pity and compunction he struck his victim in a
Kempetai fashion shows that he acted on the matter not involuntarily
or under the pressure of fear or force, as he claims, but out of his own
free will and with the desire to collaborate with the criminal design
of his superiors. (People vs. Rogado, et ai., 106 Phil. 816)
Command ofHukbalahap killers, as cause of uncontrollable fear.
Timoteo Montemayor was accused of murder, for having told his
two companions to fetch shovels and to dig a grave and for having
walked behind the Hukbalahap killers to the place of the execution of
the victim. It appears that the two Hukbalahaps were ruthless killers
and were then in a mood to inflict extreme and summary punishment
for disobedience to the command. The place was isolated, escape was
at least risky, and protection by lawfully constituted authorities was
238
EXEMPTING CIRCUMSTANCES
Uncontrollable Fear
Art. 12
Par. 6
out of reach. The accused was acquitted, for having acted under the
impulse of uncontrollable fear of an equal or greater injury. (People
vs. Regala, et al, G.R. No. L-1751, May 28, 1951)
In treason.
In the eyes of the law, nothing will excuse that act of joining an
enemy, but the fear of immediate death. (People vs. Bagalawis, 78
Phil. 174, citing the case of Republica vs. M'Carty, 2 Dall., 3 6 , 1 Law,
ed., 300, 301)
This ruling is similar to that in the Exaltacion case.
Speculative, fanciful and remote fear is not uncontrollable
fear.
The defendant ordered the deceased whose both hands were
tied at the back to kneel down with the head bent forward by the
side of the grave already prepared for him by order of said defendant.
Then, defendant hacked the head of the deceased with a Japanese
sabre and immediately kicked the prostrate body of the victim into
the grave.
When prosecuted for murder, the defendant claimed that he had
been ordered by Major Sasaki to kill the deceased. He also claimed
that he could not refuse to comply with that order, because the Japanese
officer made a threat.
Held: If the only evidence relating to a sort of a threat is the
testimony of the defendant: "As they insisted and I informed them that
I could not do it, then Captain Susuki told me, Tou have to comply
with that order of Major Sasaki; otherwise, you have to come along
with us,'" that threat is not of such a serious character and imminence
as to create in the mind of the defendant an uncontrollable fear that
an equal or greater evil or injury would be inflicted upon him if he
did not comply with the alleged order to kill the deceased. (People vs.
Moreno, 77 Phil. 549)
Mere fear of a member of the Huk movement to disobey or refuse
to carry out orders of the organization, in the absence ofproof of actual
physical or moral compulsion to act, is not sufficient to exempt the
accused from criminal liability. (People vs. Fernando, No. L-24781,
May 29, 1970, 33 SCRA 149, 157)
239
Art. 12
Par. 7
EXEMPTING CIRCUMSTANCES
Prevented By Insuperable Cause
Real, imminent or reasonable fear.
The case of U.S. vs. Exaltacion, 3 Phil. 339, is the example. There
is here fear of immediate death.
A threat of future injury is not enough.
To appreciate duress as a valid defense, a threat of future injury
is not enough. It must be clearly shown that the compulsion must be
of such character as to leave no opportunity for the accused to escape.
(People vs. Palencia, No. L-38957, April 30, 1976, 71 SCRA 679, 690;
People vs. Abanes, No. L-30609, Sept. 28, 1976, 73 SCRA 44, 47)
Distinction between irresistible force and uncontrollable fear.
In irresistible force (par. 5), the offender uses violence or physical
force to compel another person to commit a crime; in uncontrollable
fear (par. 6), the offender employs intimidation or threat in compelling
another to commit a crime.
Basis of paragraph 6.
The exempting circumstance in paragraph 6 of Art. 12 is also
based on the complete absence of freedom.
"Actus me invito factus non est meus actus." ("An act done by me
against my will is not my act.")
Par. 7. — Any person who fails to perform an act required by law,
when prevented by some lawful or insuperable cause.
Elements:
1. That an act is required by law to be done;
2. That a person fails to perform such act;
3. That his failure to perform such act was due to some lawful
or insuperable cause.
When prevented by some lawful cause.
Example:
A confessed to a Filipino priest that he and several other persons
were in conspiracy against the Government. Under Art. 116, a Filipino
240
EXEMPTING CIRCUMSTANCES
Prevented By Insuperable Cause
Art. 12
Par. 7
citizen who knows of such conspiracy must report the same to the
governor or fiscal of the province where he resides. If the priest does
not disclose and make known the same to the proper authority, he
is exempt from criminal liability, because under the law, the priest
cannot be compelled to reveal any information which he came to know
by reason of the confession made to him in his professional capacity.
(Vide, Sec. 24[d], Rule 130, Rules of Court)
When prevented by some insuperable cause.
Examples:
1. The municipal president detained the offended party for
three days because to take him to the nearest justice of the
peace required a journey for three days by boat as there
was no other means of transportation. (U.S. vs. Vicentillo,
19 Phil. 118, 119)
Under the law, the person arrested must be delivered
to the nearest judicial authority at most within eighteen
hours (now thirty-six hours, Art. 125, Rev. Penal Code, as
amended); otherwise, the public officer will be liable for
arbitrary detention. The distance which required a journey for
three days was considered an insuperable cause. Hence, it was
held that the accused was exempt from criminal liability.
2. A mother who at the time of childbirth was overcome by
severe dizziness and extreme debility, and left the child in
a thicket where said child died, is not liable for infanticide,
because it was physically impossible for her to take home
the child. (People vs. Bandian, 63 Phil. 530, 534-535)
The severe dizziness and extreme debility of the
woman constitute an insuperable cause.
Basis of paragraph 7.
The circumstance in paragraph 7 of Art. 12 exempts the accused
from criminal liability, because he acts without intent, the third
condition of voluntariness in intentional felony.
In all the exempting circumstances, intent is wanting in the
agent of the crime.
Intent presupposes the exercise of freedom and the use of intelligence.
Hence, in paragraphs 1, 2 and 3 of Art. 12, the imbecile, insane,
241
Art. 12 ABSOLUTORY CAUSES
or minor, not having intelligence, does not act with intent. The person
acting under any of the circumstances mentioned in paragraphs 5 and
6 of Art. 12, not having freedom of action, does not act with intent. In
paragraph 4 of Art. 12, it is specifically stated that the actor causes
an injury by mere accident without intention of causing it.
Distinction between justifying and exempting circumstances.
(1) A person who acts by virtue of a justifying circumstance does
not transgress the law, that is, he does not commit any crime in
the eyes of the law, because there is nothing unlawful in the act
as well as in the intention of the actor. The act of such person
is in itself both just and lawful.
In justifying circumstances, there is neither a crime nor a criminal.
No civil liability, except in par. 4 (causing damage to another in
state of necessity).
(2) In exempting circumstances, there is a crime but no criminal
liability. The act is not justified, but the actor is not criminally
liable. There is civil liability, except in pars. 4 and 7 (causing an
injury by mere accident; failing to perform an act required by law
when prevented by some lawful or insuperable cause) of Art. 12.
(See Art. 101 which does not mention pars. 4 and 7 of Art. 12)
Absolutory causes, defined.
Absolutory causes are those where the act committed is a crime
but for reasons of public policy and sentiment there is no penalty
imposed.
Other absolutory causes.
In addition to the justifying circumstances (Art. 11) and the
exempting circumstances (Art. 12), there are other absolutory causes
in the following articles, to wit:
Art. 6. — The spontaneous desistance of the person who commenced
the commission of a felony before he could perform all the
acts of execution.
Art. 20. — Accessories who are exempt from criminal liability.
— The penalties prescribed for accessories shall not be imposed
upon those who are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted brothers and sisters, or
242
ABSOLUTORY CAUSES Art. 12
relatives by affinity within the same degrees, with the single exception
of accessories falling with the provisions of paragraph 1 of the next
preceding article.
The provisions of paragraph 1 of Art. 19 read, as follows:
"By profiting themselves or assisting the offenders to profit by
the effects of the crime."
Art. 124, last paragraph. — The commission of a crime, or violent
insanity or any other ailment requiring the compulsory confinement
of the patient in a hospital, shall be considered legal grounds for the
detention of any person.
Art. 247, pars. 1 and 2. — Death or physical injuries inflicted
under exceptional circumstances. — Any legally married person who,
having surprised his spouse in the act of committing sexual intercourse
with another person, shall kill any of them or both of them in the act or
immediately thereafter, or shall inflict upon them any serious physical
injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind,
he shall be exempt from punishment.
Art. 280, par. 3. — The provisions of this article (on trespass to
dwelling) shall not be applicable to any person who shall enter another's
dwelling for the purpose of preventing some serious harm to himself,
the occupants of the dwelling or a third person, nor shall it be applicable
to any person who shall enter a dwelling for the purpose of rendering
some service to humanity or justice, nor to anyone who shall enter cafes,
taverns, inns and other public houses, while the same are open.
Art. 332. — Persons exempt from criminal liability. — No
criminal, but only civil, liability shall result from the commission
of the crime of theft, swindling or malicious mischief committed or
caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by affinity
in the same line;
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall have
passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law,
if living together.
243
Art. 12 ENTRAPMENT
Art. 344, par. 4. — In cases of seduction, abduction, acts of
lasciviousness and rape, the marriage of the offender with the offended
party shall extinguish the criminal action or remit the penalty already
imposed upon him. The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and accessories after the
fact of the above-mentioned crimes.
Instigation is an absolutory cause.
Example:
An internal revenue agent, representing himself as a
private individual engaged in gambling, approached the accused
and induced the latter to look for an opium den where he said he
could smoke opium. The agent went to the accused three times
to convince the latter of his desire to smoke opium. Because of
the insistence of the agent, the accused made efforts to look for
a place where both of them could smoke opium until finally he
found one. The agent and the accused went to the place which
turned out to be the house of a Chinaman, and there the agent
received an opium pipe and paid f*2.00 for the service to both of
them. After a while, the agent left. He returned later to arrest
the accused allegedly for smoking opium.
Held: The accused was not criminally liable. He was
instigated to commit the crime of smoking opium. (U.S. vs.
Phelps, 16 Phil. 440)
Suppose that the agent in that case induced the accused to sell
opium to him and the accused sold opium, could the accused be held
liable for illegal possession of opium?
Yes, because the accused was then in possession of opium and
the mere possession of opium is a violation of the law within itself.
Basis of exemption from criminal liability.
A sound public policy requires that the courts shall condemn
this practice (instigation) by directing the acquittal of the accused.
Entrapment is not an absolutory cause.
Example:
The accused wrote to his correspondent in Hongkong
to send to him a shipment of opium. This opium had been in
244
ENTRAPMENT Art. 12
Hongkong for sometime, awaiting a ship that would go direct
to Cebu.
The Collector of Customs of Cebu received information
that the accused was intending to land opium in the port. The
Collector promised the accused that he would remove all the
difficulties in the way, and for this purpose agreed to receive
P2.000.00. Juan Samson, a secret serviceman, pretended to
smooth the way for the introduction of the prohibited drug.
The accused started landing the opium. At this time,
the agents of the law seized the opium and had the accused
prosecuted.
Held: It is true that Juan Samson smoothed the way for
the introduction of the prohibited drug, but that was after the
accused had already planned its importation and ordered for
said drug.
Juan Samson neither induced nor instigated the accused
to import the opium in question, but pretended to have an
understanding with the Collector of Customs, who had promised
them that he would remove all the difficulties in the way of their
enterprise so far as the customs house was concerned.
This is not a case where an innocent person is induced to
commit a crime merely to prosecute him, but it is simply a trap
set to catch a criminal. (People vs. Lua Chua and Uy Se Tieng,
56 Phil. 44)
Suppose, the accused had not yet ordered for opium in Hongkong
when he talked with the Collector of Customs but that on the strength
of the assurance of the Collector of Customs, he later ordered for opium
in Hongkong, would it be instigation? Yes, it would be instigation, not
entrapment, because the accused was instigated to import a prohibited
drug, a crime punished by Art. 192.
The doctrines referring to the entrapment of offenders and
instigation to commit crime, as laid down by the courts of the United
States, are summarized in 16 Corpus Juris, page 88, Section 57, as
follows:
"ENTRAPMENT AND INSTIGATION. - While it has been
said that the practice of entrapping persons into crime for the purpose
245
Art. 12 ENTRAPMENT
of instituting criminal prosecutions is to be deplored, and while
instigation, as distinguished from mere entrapment, has often been
condemned and has sometimes been held to prevent the act from being
criminal or punishable, the general rule is that it is no defense to the
perpetrator of a crime that facilities for its commission were purposely
placed in his way, or that the criminal act was done at the 'decoy
solicitation' of persons seeking to expose the criminal, or that detectives
feigning complicity in the act were present and apparently assisting
its commission. Especially is this true in that class of cases where
the offense is one of a kind habitually committed, and the solicitation
merely furnishes evidence of a course of conduct. Mere deception by the
detective will not shield defendant, if the offense was committed by him
free from the influence or the instigation of the detective. The fact that
an agent of an owner acts as a supposed confederate of a thief is no
defense to the latter in a prosecution for larceny, provided the original
design was formed independently of such agent; and where a person
approached by the thief as his confederate notifies the owner or the
public authorities, and being authorized by them to do so, assists the
thief in carrying out the plan, the larceny is nevertheless committed."
(Cited in People vs. Lua Chu and Uy Se Tieng, 56 Phil. 44)
A detective representing to be a private individual, jobless, and
in need of money, befriended a well-known thief. The thief told him
that there was easy money around if he would take a chance. The
detective asked the thief what it was and the latter told him that he
was going to break into the house of a rich man to steal some jewels
and money. The detective pretended to have agreed with him and
the two went to the house, entered it through the window, and once
inside, the thief opened with a false key the wardrobe in the house
and took jewels and money. Then and there the detective arrested
the thief.
Is the thief criminally liable for the robbery committed?
Yes, it was entrapment. The fact that an agent of the law acted
as a supposed confederate of a thief is no defense to the latter, provided
that the original design was formed by the thief independently
of such agent.
Entrapment and instigation distinguished.
There is a wide difference between entrapment and instigation,
for while in the latter case the instigator practically induces the wouldbe
accused into the commission of the offense and himself becomes a
246
ENTRAPMENT AND INSTIGATION
DISTINGUISHED
Art. 12
co-principal, in entrapment, ways and means are resorted to for the
purpose of trapping and capturing the lawbreaker in the execution of
his criminal plan. Entrapment is no bar to the prosecution and conviction
of the lawbreaker. But when there is instigation, the accused must
be acquitted. (People vs. Galicia, C.A., 40 O.G. 4476; People vs. Yutuc,
G.R. No. 82590, July 26, 1990, 188 SCRA 1, 21; People vs. Payumo,
G.R. No. 81761, July 2, 1990, 187 SCRA 64, 71; Araneta vs. Court of
Appeals, No. L-46638, July 9, 1986,142 SCRA 534, 540)
In entrapment, the entrapper resorts to ways and means to
trap and capture a lawbreaker while executing his criminal plan. In
instigation, the instigator practically induces the would-be defendant
into committing the offense, and himself becomes a co-principal.
In entrapment, the means originates from the mind of the criminal.
The idea and the resolve to commit the crime come from him. In
instigation, the law enforcer conceives the commission of the crime
and suggests to the accused who adopts the idea and carries it into
execution. The legal effects of entrapment do not exempt the criminal
from liability. Instigation does. (People vs. Marcos, G.R. No. 83325,
May 8, 1990, 185 SCRA 154, 164, citing earlier cases)
In instigation, a public officer or a private detective induces an
innocent person to commit a crime and would arrest him upon or after
the commission of the crime by the latter. It is an absolutory cause.
In entrapment, a person has planned, or is about to commit, a
crime and ways and means are resorted to by a public officer to trap
and catch the criminal. Entrapment is not a defense.
Instigation must be made by public officers or private detectives.
A criminal act may not be punishable if the accused was induced
to commit it by active cooperation and instigation on the part of public
detectives. (State vs. Hayes, 105 Mo. 76,16 S.W. 514, 24 Am. St. Rep.
360)
A sound public policy requires that the courts shall condemn
this practice by directing an acquittal whenever it appears that the
public authorities or private detectives, with their cognizances, have
taken active steps to lead the accused into the commission of the act.
As was said in a Michigan case: "Human nature is frail enough at
best, and requires no encouragement in wrongdoing. If we cannot
247
Art. 12 COMPLETE DEFENSES IN CRIMINAL CASES
assist another, and prevent him from committing crime, we should
at least abstain from any active efforts in the way of leading him into
temptation." (Saunders vs. People, 38 Mich. 218, 222)
If the one who made the instigation is a private individual, not
performing public function, both he and the one induced are criminally
liable for the crime committed: the former, as principal by induction;
and the latter, as principal by direct participation.
There is neither instigation nor entrapment when the violation
of the law is simply discovered.
Charged with and prosecuted for a violation of Executive Order
No. 62, series of 1945, the accused having sold a can of Mennen
Talcum Powder for PI.00 when the ceiling price for said article was
only P0.86, the defense contended that the government agent induced
the accused to violate the law by purchasing from him the article and
paying for it in an amount above the ceiling price.
Held: The agent did not induce the accused to violate the law.
He simply discovered the violation committed by the accused when
he (the agent) purchased the article from him. It was the accused who
charged and collected the price. There was not even an entrapment.
(People vs. Tan Tiong, C.A., 43 O.G. 1285)
Assurance of immunity by a public officer does not exempt
a person from criminal liability.
Thus, the accused who delivered to the barrio lieutenant a gun
and ammunition when the latter announced "that anyone who is
concealing firearms should surrender them so that he will not be
penalized" is not exempt from criminal responsibility arising from
the possession of the unlicensed firearm and ammunition. In fact,
not even the President could give such assurance of immunity to any
violator of the firearm law. His constitutional power of clemency can
be exercised only after conviction. (People vs. Alabas, C.A., 52 O.G.
3091)
Complete defenses in criminal cases.
1. Any of the essential elements of the crime charged is not proved
by the prosecution and the elements proved do not constitute
any crime.
248
MITIGATING CIRCUMSTANCES Art. 12
2. The act of the accused falls under any of the justifying
circumstances. (Art. 11)
3. The case of the accused falls under any of the exempting
circumstances. (Art. 12)
4. The case is covered by any of the absolutory causes:
a. Spontaneous desistance during attempted stage (Art. 6),
and no crime under another provision of the Code or other
penal law is committed.
b. Light felony is only attempted or frustrated, and is not
against persons or property. (Art. 7)
c. The accessory is a relative of the principal. (Art. 20)
d. Legal grounds for arbitrary detention. (Art. 124)
e. Legal grounds for trespass. (Art. 280)
f. The crime of theft, swindling or malicious mischief is
committed against a relative. (Art. 332)
g. When only slight or less serious physical injuries are
inflicted by the person who surprised his spouse or
daughter in the act of sexual intercourse with another
person. (Art. 247)
h. Marriage of the offender with the offended party when the
crime committed is rape, abduction, seduction, or acts of
lasciviousness. (Art. 344)
i. Instigation.
5. Guilt of the accused not established beyond reasonable doubt.
6. Prescription of crimes. (Art. 89)
7. Pardon by the offended party before the institution of criminal
action in crime against chastity. (Art. 344)
III. Mitigating circumstances.
1. Definition
Mitigating circumstances are those which, if present in
249
Art. 13 MITIGATING CIRCUMSTANCES
Classes
the commission of the crime, do not entirely free the actor from
criminal liability, but serve only to reduce the penalty.
2. Basis
Mitigating circumstances are based on the diminution of
either freedom of action, intelligence, or intent, or on the lesser
perversity of the offender.
Classes of mitigating circumstances.
1. Ordinary mitigating — those enumerated in subsections
l t o 10 of Article 13.
Those mentioned in subsection 1 of Art. 13 are
ordinary mitigating circumstances, if Art. 69, for instance,
is not applicable.
2. Privileged mitigating —
a. Art. 68. Penalty to be imposed upon a person under
eighteen years of age. - When the offender is a minor
under eighteen years of age and his case falls under
the provisions of the Juvenile Justice and Welfare
Act, the following rules shall be observed:
(1) A person under fifteen years of age, and a
person over fifteen and under eighteen years of age
who acted without discernment, are exempt from
criminal liability;
(2) Upon a person over fifteen and under
eighteen years of age who acted with discernment,
the penalty next lower than that prescribed by law
shall be imposed, but always in the proper period. (As
amended by Rep. Act No. 9344)
b. Art. 69. Penalty to be imposed when the crime
committed is not wholly excusable. — A penalty lower
by one or two degrees than that prescribed by law
shall be imposed if the deed is not wholly excusable by
reason of the lack of some of the conditions required to
justify the same or to exempt from criminal liability
x x x , provided that the majority of such conditions
be present.
250
MITIGATING CIRCUMSTANCES
Classes
Art. 13
c. Art. 64. Rules for the application of penalties which
contain three periods. — In cases in which the
penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed
of three different penalties, each one of which
forms a period x x x, the courts shall observe for
the application of the penalty the following rules,
according to whether there are or are not mitigating
or aggravating circumstances:
X X X .
(5) When there are two or more mitigating
circumstances and no aggravating circumstances
are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it
may deem applicable, according to the number and
nature of such circumstances.
X x x.
Privileged mitigating circumstances applicable only to
particular crimes.
1. Voluntary release of the person illegally detained within 3
days without the offender attaining his purpose and before
the institution of criminal action. (Art. 268, par. 3) The
penalty is one degree lower.
2. Abandonment without justification of the spouse who
committed adultery. (Art. 333, par. 3) The penalty is one
degree lower.
Distinctions.
1. Ordinary mitigating is susceptible of being offset by any
aggravating circumstance; while privileged mitigating
cannot be offset by aggravating circumstance.
2. Ordinary mitigating, if not offset by an aggravating
circumstance, produces only the effect of applying the
penalty provided by law for the crime in its minimum
period, in case of divisible penalty; whereas, privileged
mitigating produces the effect of imposing upon the
251
Art. 13 MITIGATING CIRCUMSTANCES
Distinctions Between Ordinary and Privileged
offender the penalty lower by one or two degrees than that
provided by law for the crime.
People vs. Honradez
(C.A., 40 O.G., Supp. 4, 1)
Facts: The accused who was charged with robbery was less than 18
years old. He committed the crime during nighttime purposely sought,
which is an aggravating circumstance.
Held: The aggravating circumstance of nighttime cannot offset
the privileged mitigating circumstance of minority.
Note: As to whether the age 16 years or above but under 18 years
is a privileged mitigating circumstance is not a settled question.
Mitigating circumstances only reduce the penalty, but do not
change the nature of the crime.
Where the accused is charged with murder, as when treachery
as a qualifying circumstance is alleged in the information, the fact
that there is a generic or privileged mitigating circumstance does not
change the felony to homicide.
If there is an ordinary or generic mitigating circumstance, not
offset by any aggravating circumstance, the accused should be found
guilty of the same crime of murder, but the penalty to be imposed is
reduced to the minimum of the penalty for murder.
If there is a privileged mitigating circumstance, the penalty for
murder will be reduced by one or two degrees lower.
In every case, the accused should be held guilty of murder.
The judgment of the trial court that the mitigating circumstance
of non-habitual drunkenness changes the felony to homicide is
erroneous, because treachery is alleged in the information and the
crime committed by the appellant is that of murder. The mitigating
circumstance reduces the penalty provided by law but does not change
the nature of the crime. (People vs. Talam, C.A., 56 O.G. 3654)
252
Chapter Three
CIRCUMSTANCES WHICH MITIGATE
CRIMINAL LIABILITY
Art. 13. Mitigating circumstances. — The following are mitig
a t i n g circumstances:
1. Those m e n t i o n e d in t h e p r e c e d i n g chapter, w h e n all
the r e q u i s i t e s n e c e s s a r y t o j u s t i f y t h e act or t o exempt from
criminal l i a b i l i t y i n t h e r e s p e c t i v e c a s e s are not attendant.
2. That t h e offender i s under e i g h t e e n years of age
or over s e v e n t y years. In t h e c a s e of t h e minor, he shall be
proceeded against in accordance w i t h t h e provisions of Article
80.*
3. That t h e offender h a d no i n t e n t i o n t o commit so
grave a w r o n g as t h a t committed.
4. That sufficient p r o v o c a t i o n or t h r e a t on t h e part of
t h e offended p a r t y immediately p r e c e d e d t h e act.
5 . That t h e act w a s c o m m i t t e d i n t h e i m m e d i a te
vindication of a grave offense to t h e o n e committing t h e felony
(delito), his spouse, a s c e n d a n t s , d e s c e n d a n t s , legitimate,
natural or a d o p t e d b r o t h e r s or s i s t e r s , or r e l a t i v e s by affinity
w i t h i n t h e same degrees.
6. That of h a v i n g a c t e d u p o n an impulse so powerful
as naturally t o have produced p a s s i o n or obfuscation.
7. That the o f f e n d e r had v o l u n t a r i l y s u r r e n d e r ed
himself t o a p e r s o n in authority or h i s agents, or that he had
voluntarily c o n f e s s e d his guilt before the court prior t o the
presentation of t h e e v i d e n c e for t h e prosecution.
•"Impliedly repealed by Rep. Act. No. 9344. A child above 15 but below 18 who
acted without discernment may be exempt from criminal liability.
253
Art. 13 MITIGATING CIRCUMSTANCES
Par. 1 Incomplete Justifying or Exempting Circumstances
8. That the offender i s deaf a n d dumb, blind, or otherwise
suffering some physical defect w h i c h thus restricts his
means of action, defense, or communication w i t h his fellow
beings.
9. Such i l l n e s s of t h e offender as would diminish the
exercise of the will-power of t h e offender without however
depriving h im of c o n s c i o u s n e s s of h i s acts.
10. And, finally, any other circumstances of a similar
nature and analogous t o t h o s e above-mentioned.
Par. 1. — Those mentioned in the preceding chapter when all
the requisites necessary to justify the act or to exempt
from criminal liability in the respective cases are not
attendant.
"Those mentioned in the preceding chapter."
This clause has reference to (1) justifying circumstances, and (2)
exempting circumstances which are covered by Chapter Two of Title
One.
Circumstances of justification or exemption which may give
place to mitigation.
The circumstances of justification or exemption which may give
place to mitigation, because not all the requisites necessary to justify
the act or to exempt from criminal liability in the respective cases are
attendant, are the following:
(1) Self-defense (Art. 11, par. 1);
(2) Defense of relatives (Art. 11, par. 2);
(3) Defense of stranger (Art. 11, par. 3);
(4) State of necessity (Art. 11, par. 4);
(5) Performance of duty (Art. 11, par. 5);
(6) Obedience to order of superior (Art. 11, par. 6);
(7) Minority over 9 and under 15 years of age (Art. 12, par.
3);
254
MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1
(8) Causing injury by mere accident (Art. 12, par. 4); and
(9) Uncontrollable fear. (Art. 12, par. 6)
Paragraphs 1 and 2 of Article 12 cannot give place to mitigation,
because, as stated by the Supreme Court of Spain, the mental condition
of a person is indivisible; that is, there is no middle ground between
sanity and insanity, between presence and absence of intelligence.
(Decs, of Sup. Ct. of Spain of December 19, 1891 and of October 3,
1884)
But if the offender is suffering from some illness which would
diminish the exercise of his will-power, without however depriving
him of consciousness of his acts, such circumstance is considered a
mitigation under paragraph 9 of Article 13. It would seem that one
who is suffering from mental disease without however depriving one of
consciousness of one's act may be given the benefit of that mitigating
circumstance.
When all the requisites necessary to justify the act are not
attendant.
1. Incomplete self-defense, defense of relatives, and defense of
stranger.
Note that in these three classes of defense, unlawful
aggression must be present, it being an indispensable
requisite. What is absent is either one or both of the last two
requisites.
Paragraph 1 of Art. 13 is applicable only when unlawful
aggression is present but the other two requisites are not
present in any of the cases referred to in circumstances Nos.
1,2 and 3 of Art. 11.
Art. 13, par. 1, applies only when unlawful aggression is present,
but the other two requisites are not present. (Guevara)
When two of the three requisites mentioned therein are present
(for example, unlawful aggression and any one of the other two), the
case must not be considered as one in which an ordinary or generic
mitigating circumstance is present. Instead, it should be considered
a privileged mitigating circumstance referred to in Art. 69 of this
Code.
255
Art. 13 MITIGATING CIRCUMSTANCES
Par. 1 Incomplete Justifying or Exempting Circumstances
256
Thus, if in self-defense there was unlawful aggression on the
part of the deceased, the means employed to prevent or repel it was
reasonable, but the one making a defense gave sufficient provocation,
he is entitled to a privileged mitigating circumstance, because the
majority of the conditions required to justify the act is present. (Art.
69) Also, if in the defense of a relative there was unlawful aggression
on the part of the deceased, but the one defending the relative
used unreasonable means to prevent or repel it, he is entitled to a
privileged mitigating circumstance.
When there is unlawful aggression on the part of the deceased
without sufficient provocation by the defendant, but the latter uses
means not reasonably necessary, for after having snatched the rope
from the deceased, he should not have wound it around her neck
and tightened it. Held: There is incomplete self-defense on the part
of the defendant, which may be considered a privileged mitigating
circumstance. (People vs. Martin, 89 Phil. 18, 24)
But if there is no unlawful aggression, there could be no selfdefense
or defense of a relative, whether complete or incomplete.
Example of incomplete defense.
The deceased was about to set on fire the house of the
accused, where she was sleeping together with her two children.
They grappled and the accused boloed to death the deceased.
There was unlawful aggression consisting in trying to set on
fire the house of the accused. There was the element of danger
to the occupants of the house. But having already driven the
aggressor out of the house, who was prostrate on the ground, the
accused should not have persisted in wounding her no less than
fourteen times. There is, therefore, absence of one circumstance
to justify the act—reasonable necessity of killing the aggressor.
The accused was entitled to a privileged mitigating circumstance
of incomplete defense. Here, the accused acted in defense of her
person, her home, and her children. (U.S. vs. Rivera, 41 Phil.
472, 473-474)
Example of incomplete self-defense.
The accused is entitled to only incomplete self-defense.
The deceased was in a state of drunkenness, so he was not as
dangerous as he would if he had been sober. His aim proved
MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1
257
faulty and easily evaded as shown by the fact that the person
defending was not hit by the stab attempts-blows directed
against him. The necessity of the means used to repel the
aggression is not clearly reasonable. (People vs. De Jesus, No.
L-58506, Nov. 19, 1982, 118 SCRA 616, 627)
Example of incomplete defense of relative.
The deceased hit the first cousin of the accused with the
butt of a shotgun. The deceased also pointed the shotgun at the
first cousin, took a bullet from his jacket pocket, showed it to
him and asked him, "Do you like this, Dong?" to which the latter
replied, "No, Noy, I do not like that." The deceased then placed
the bullet in the shotgun and was thus pointing it at the first
cousin when the accused came from behind the deceased and
stabbed him. There was unlawful aggression on the part of the
deceased and there was no provocation on the part of the accused.
However, because of a running feud between the deceased and
his brother on one side and the accused and his brother on the
other side, the accused could not have been impelled by pure
compassion or beneficence or the lawful desire to avenge the
immediate wrong inflicted on his cousin. He was motivated by
revenge, resentment or evil motive. He is only entitled to the
privileged mitigating circumstance of incomplete defense of
relative. (People vs. Toring, G.R. No. 56358, Oct. 26, 1990, 191
SCRA 38, 45-48)
2. Incomplete justifying circumstance of avoidance of greater evil
or injury.
Avoidance of greater evil or injury is a justifying circumstance
if all the three requisites mentioned in paragraph 4 of
Article 11 are present. But if any of the last two requisites is
absent, there is only a mitigating circumstance.
3. Incomplete justifying circumstance of performance of duty.
As has been discussed under Article 11, there are two
requisites that must be present in order that the circumstance
in Article 11, No. 5, may be taken as a justifying one, namely:
a. That the accused acted in the performance of a duty or in
the lawful exercise of a right or office; and
Art. 13
Par. 1
MITIGATING CIRCUMSTANCES
Incomplete Justifying or Exempting Circumstances
b. That the injury caused or offense committed be the necessary
consequence of the due performance of such duty or
the lawful exercise of such right or office.
In the case of People vs. Oanis, supra, where only one of the
requisites of circumstance No. 5 of Art. 11 was present, Art. 69 was
applied. The Supreme Court said —
"As the deceased was killed while asleep, the crime
committed is murder with the qualifying circumstance oialevosia.
There is, however, a mitigating circumstance of weight consisting
in the incomplete justifying circumstance defined in Art. 11, No.
5, of the Revised Penal Code. According to such legal provision, a
person incurs no criminal liability when he acts in the fulfillment
of a duty or in the lawful exercise of a right or office. There are
two requisites in order that the circumstance may be taken as a
justifying one: (a) that the accused acted in the performance of a
duty or in the lawful exercise of a right or office; and (b) that the
injury caused or offense committed be the necessary consequence
of the due performance of such duty or the lawful exercise of
such right or office. In the instant case, only the first requisite
is present—appellants have acted in the performance of a duty.
The second requisite is wanting for the crime committed by them
is not the necessary consequence of a due performance of their
duty. Their duty was to arrest Balagtas, or to get him dead or
alive if resistance is offered by him and they are overpowered.
But through impatience or over anxiety or in their desire to take
no chances, they have exceeded in the fulfillment of such duty by
killing the person whom they believed to be Balagtas without any
resistance from him and without making any previous inquiry as
to his identity. According to Art. 69 of the Revised Penal Code,
the penalty lower by one or two degrees than that prescribed by
law shall, in such case, be imposed.
"For all the foregoing, the judgment is modified and
appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly
sentenced to an indeterminate penalty of from five (5) years of
prision correccional to fifteen (15) years of reclusion temporal,
with the accessories of the law, and to pay the heirs of the
deceased Serapio Tecson, jointly and severally, an indemnity
of P2,000, with costs."
258
MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1
Since the Supreme Court considered one of the two
requisites as constituting the majority, it seems that there is no
ordinary mitigating circumstance under Art. 13, par. 1, when
the justifying or exempting circumstance has two requisites
only.
4. Incomplete justifying circumstance of obedience to an order.
Roleda fired at Pilones, following the order of Sergeant
Benting, Roleda's superior. It appears that on their way to the
camp, Roleda learned that Pilones had killed not only a barrio
lieutenant but also a member of the military police, and this
may have aroused in Roleda a feeling of resentment that may
have impelled him to readily and without questioning follow
the order of Sgt. Benting. To this may be added the fact of his
being a subordinate of Sgt. Benting who gave the order, and
while out on patrol when the soldiers were supposed to be under
the immediate command and control of the patrol leader, Sgt.
Benting. (People vs. Bernal, et al., 91 Phil. 619)
When all the requisites necessary to exempt from criminal
liability are not attendant.
1. Incomplete exempting circumstance of minority over 9 and under
15 years of age.
To be exempt from criminal liability under paragraph 3 of
Article 12, two conditions must be present:
a. That the offender is over 9 and under 15 years old; and
b. That he does not act with discernment.
Therefore, if the minor over 9 and under 15 years of age
acted with discernment, he is entitled only to a mitigating
circumstance, because not all the requisites necessary to exempt
from criminal liability are present.
The case of such minor is specifically covered by Art. 68.
2. Incomplete exempting circumstance of accident.
Under paragraph 4 of Article 12, there are four requisites
that must be present in order to exempt one from criminal liability,
namely:
259
Art. 13 MITIGATING CIRCUMSTANCES
Par. 1 Incomplete Justifying or Exempting Circumstances
a. A person is performing a lawful act;
b. With due care;
c. He causes an injury to another by mere accident; and
d. Without fault or intention of causing it.
If the second requisite and the 1st part of the fourth
requisite are absent, the case will fall under Art. 365 which
punishes a felony by negligence or imprudence.
In effect, there is a mitigating circumstance, because the
penalty is lower than that provided for intentional felony.
If the first requisite and the 2nd part of the fourth requisite
are absent, because the person committed an unlawful act and
had the intention of causing the injury, it will be an intentional
felony. The 2nd and 3rd requisites will not be present either.
In this case, there is not even a mitigating circumstance.
3. Incomplete exempting circumstance of uncontrollable fear.
Under paragraph 6 of Article 12, uncontrollable fear
is an exempting circumstance if the following requisites are
present:
a. That the threat which caused the fear was of an evil greater
than, or at least equal to, that which he was required to
commit;
b. That it promised an evil of such gravity and imminence
that an ordinary person would have succumbed to it
(uncontrollable).
If only one of these requisites is present, there is only a mitigating
circumstance.
Illustration:
People vs. Magpantay
(C.A., 46 O.G. 1655)
Facts: In the night of May 8, 1947, Felix and Pedro took turns
to guard, so that when one was asleep the other was awake. At about
nine o'clock when Pedro was asleep, the silhouette of a man passed in
260
MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1
261
front of their house without any light. The night was dark and it was
drizzling. The coconut trees and the bushes on the sides of the road
increased the darkness. When Felix saw the silhouette, he asked it
who it was, but it walked hurriedly, which made Felix suspicious as it
might be a scouting guard of the Dilim gang. Felix fired into the air,
yet the figure continued its way.
When Pedro heard the shot, he suddenly grabbed the rifle at his
side and fired at the figure on the road, causing the death of the man.
This man was afterward found to be Pedro Pinion, who was returning
home unarmed after fishing in a river.
The accused voluntarily surrendered to the barrio-lieutenant and
then to the chief of police.
Held: The accused acted under the influence of the fear of being
attacked. Having already in his mind the idea that they might be
raided at any moment by the Dilim gang and suddenly awakened by
the shot fired by Felix, he grabbed his gun and fired before he could
be fired upon. The fear, however, was not entirely uncontrollable, for
had he not been so hasty and had he stopped a few seconds to think,
he would have ascertained that there was no imminent danger.
He is entitled to the mitigating circumstance of grave fear, not
entirely uncontrollable, under paragraph 1 of Article 13 in connection
with paragraph 6 of Article 12 of the Revised Penal Code. That said
two provisions may be taken together to constitute a mitigating
circumstance has been declared by the Supreme Court of Spain in its
decision of February 24, 1897 and by Groizard. (Codigo Penal, Vol. I,
pp. 370-372, Third Edition)
Consequently, there are two marked mitigating circumstances
in favor of the accused. Article 64, in paragraph 5, of the Revised
Penal Code provides that: "When there are two or more mitigating
circumstances and no aggravating circumstances are present, the court
shall impose the penalty next lower to that prescribed by law, in the
period that it may deem applicable, according to the number and nature
of such circumstances." The penalty for homicide is reclusion temporal.
The next lower penalty is prision mayor, which may be imposed in the
period that the court may deem applicable according to the number
and nature of such circumstance.
In view of the foregoing, this Court finds the accused Pedro
Magpantay guilty of homicide, with two very marked mitigating
circumstances, and modifies the judgment appealed from by imposing
upon him the penalty of from six (6) months and one (1) day of prision
correccional to six (6) years and one (1) day of prision mayor.
Art. 13 MITIGATING CIRCUMSTANCES
Par. 2 Under Eighteen or Over Seventy Years Old
With due respect, it is believed that Art. 69, in connection with
paragraph 6 of Article 12, not Article 13, paragraph 1, in relation to
paragraph 6 of Article 12, should be applied.
When it considered grave fear, not entirely uncontrollable, as
ordinary mitigating circumstance under Article 13, paragraph 1,
together with voluntary surrender, and applied Article 64, the Court
of Appeals should have fixed the maximum term of the indeterminate
penalty (prision mayor) in its medium period. The two mitigating
circumstances having been considered already for the purpose
of lowering the penalty for homicide by one degree, pursuant to
paragraph 5 of Article 64, there is no mitigating circumstance that
will justify the imposition of prision mayor in its minimum period.
Had Article 69 in connection with paragraph 6 of Article 12 been
applied, the penalty imposed would have a correct basis. Under Article
69, the penalty one or two degrees lower than that provided for the
offense may be imposed. The mitigating circumstance of voluntary
surrender need not be considered in lowering the penalty by one
degree. Therefore, the voluntary surrender of the accused, which is a
generic mitigating circumstance, may be considered for the purpose
of fixing prision mayor in its minimum period. (Art. 64, par. 2)
Par. 2. — That the offender is under eighteen years of age or
over seventy years. In the case of the minor, he shall be
proceeded against in accordance with the provisions
of Article 80 (now Art. 192, P.D. No. 603).
Paragraph 2, Article 13 RPC impliedly repealed by Republic
Act No. 9344.
Paragraph 2, Article 13 of the Revised Penal Code providing
that offender under eighteen years of age is entitled to a mitigating
circumstance of minority is deemed repealed by the provision of Republic
Act 9344 declaring a child above fifteen (15) years but below
eighteen years (18) or age shall be exempt from criminal liability unless
he/she has acted with discernment. (Sec. 6, Rep. Act No. 9344)
In other words, whereas before, an offender fifteen (15) or over
but under eighteen (18) years of age is entitled only to the benefits
provided under Article 68 of the Revised Penal Code, under Republic
262
MITIGATING CIRCUMSTANCES Art. 13
Under Eighteen or Over Seventy Years Old Par. 2
Act No. 9344 or the "Juvenile Justice and Welfare Act of 2006," such
offender may be exempt from criminal liability should he/she acted
without discernment.
On the other hand, if such offender acted with discernment,
such child in conflict with the law shall undergo diversion programs
provided under Chapter 2 of Republic Act No. 9344.
Meaning of Diversion and Diversion Program under Republic
Act No. 9344
"Diversion" refers to an alternative, child-appropriate process
of determining the responsibility and treatment of a child in conflict
with the law on the basis of his/her social, cultural, economic,
psychological, or educational background without resulting to formal
court proceedings. (Section 4[j], Rep. Act No. 9344)
"Diversion Program" refers to the program that the child
in conflict with the law is required to undergo after he/she is
found responsible for an offense without resorting to formal court
proceedings. (Section 4(j], Rep. Act No. 9344)
System of Diversion.
Children in conflict with the law shall undergo diversion programs
without undergoing court proceedings subject to the following
conditions:
(a) Where the imposable penalty for the crime committed is
not more than six (6) years imprisonment, the law enforcement office
or Punong Barangay with the assistance of the local social welfare
and development officer or other members of the Local Councils for
the Protection of Children (LCPC) established in all levels of local
government pursuant to Rep. Act No. 9344, shall conduct mediation,
family conferencing and conciliation and, where appropriate, adopt
indigenous modes of conflict resolution in accordance with the best
interest of the child with a view to accomplishing the objectives of
restorative justice and the formulation of a diversion program. The
child and his/her family shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not
more than six (6) years of imprisonment, the local social welfare and
development officer shall meet with the child and his/her parents
or guardians for the development of the appropriate diversion and
263
Art. 13 MITIGATING CIRCUMSTANCES
Par. 2 Under Eighteen or Over Seventy Years Old
rehabilitation program, in coordination with the Barangay Council
for the Protection of Children (BCPC) created pursuant to Rep. Act
No. 9344.
(c) Where the imposable penalty for the crime committed exceeds
six (6) years imprisonment, diversion measures may be resorted
to only by the court. (See Section 23, Republic Act No. 9344)
Conferencing, Mediation and Conciliation.
A child in conflict with the law may undergo conferencing, mediation
or conciliation outside the criminal justice system or prior to
his entry into said system. A contract of diversion may be entered
into during such conferencing, mediation or conciliation proceedings.
(Sec. 25, Rep. Act No. 9344)
Contract of Diversion.
If during the conferencing, mediation or conciliation, the child
voluntarily admits the commission of the act, a diversion program
shall be developed when appropriate and desirable as determined
under Section 30. Such admission shall not be used against the child in
any subsequent judicial, quasi-judicial or administrative proceedings.
The diversion program shall be effective and binding if accepted by the
parties concerned. The acceptance shall be in writing and signed by
the parties concerned and the appropriate authorities. The local social
welfare and development officer shall supervise the implementation of
the diversion program. The diversion proceedings shall be completed
within forty-five (45) days. The period of prescription of the offense
shall be suspended until the completion of the diversion proceedings
but not to exceed forty-five (45) days.
The child shall present himself/herself to the competent authorities
that imposed the diversion program at least once a month for
reporting and evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract
of diversion, as certified by the local social welfare and development
officer, shall give the offended party the option to institute the appropriate
legal action.
The period of prescription of the offense shall be suspended
during the effectivity of the diversion program, but not exceeding a
period of two (2) years. (Sec. 26, Rep. Act No. 9344)
264
MITIGATING CIRCUMSTANCES Art. 13
Under Eighteen or Over Seventy Years Old Par. 2
Where diversion may be conducted.
Diversion may be conducted at the Katarungang Pambarangay,
the police investigation or the inquest or preliminary investigation
stage and at all levels and phases of the proceedings including judicial
level. (Section 24, Republic Act No. 9344)
Duty of the Punong Barangay or the Law Enforcement Officer
when there is no diversion.
If the offense does not fall under the category where the
imposable penalty for the crime committed is not more than six (6)
years of imprisonment or in cases of victimless crimes where the
imposable penalty is also not more than six years imprisonment, or if
the child, his/her parents or guardians does not consent to a diversion,
the Punong Barangay handling the case shall, within three (3) days
from determination of the absence of jurisdiction over the case or
termination of the diversion proceeding as the case may be, forward
the records of the case to the law enforcement officer, prosecutor or
the appropriate court, as the case may be. (See Section 27, Republic
Act No. 9344)
In case a Law Enforcement Officer is the one handling the
case, within same period, the Law Enforcement Officer shall forward
the records of the case to the prosecutor or judge concerned for the
conduct of inquest and/or preliminary investigation. The document
transmitting said records shall display the word "CHILD" in bold
letters. (Sec. 28, Rep. Act No. 9344)
Determination of age of child in conflict with the law.
The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with
the law until he/she is proven to be eighteen (18) years old or older.
The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence
of these documents, age may be based on information from the child
himself/herself, testimonies of other persons, the physical appearance
of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict with the law
prior to the filing of the information in any appropriate court may file
265
Art. 13 MITIGATING CIRCUMSTANCES
Par. 2 Under Eighteen or Over Seventy Years Old
a case in a summary proceeding for the determination of age before
the Family Court which shall decide the case within twenty-four
(24) hours from receipt of the appropriate pleadings of all interested
parties.
If a case has been filed against the child in conflict with the law
and is pending in the appropriate court, the person shall file a motion
to determine the age of the child in the same court where the case
is pending. Pending hearing on the said motion, proceedings on the
main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges
and other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law. (Section 7,
Republic Act No. 9344)
That the offender is over 70 years of age is only a generic
mitigating circumstance.
While paragraph 2 of Article 13 covers offenders under 18 years
of age and those over 70 years, Article 68, providing for privileged
mitigating circumstances, does not include the case of offenders over
70 years old.
Prior to the enactment of Rep. Act No. 9346 prohibiting the
imposition of the death penalty, there were two cases where the fact
that the offender is over 70 years of age had the effect of a privileged
mitigating circumstance, namely: (1) when he committed an offense
punishable by death, that penalty shall not be imposed (Art. 47, par.
1) and (2) when the death sentence is already imposed, it shall be
suspended and commuted. (Art. 83)
In any of the above-mentioned two cases, the penalty of death
will have to be lowered to life imprisonment (reclusion perpetua).
Basis of paragraph 2.
The mitigating circumstances in paragraph 2 of Art. 13 are
based on the diminution of intelligence, a condition of voluntariness.
266
MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3
Par. 3. — That the offender had no intention to commit so grave
a wrong as that committed.
Rule for the application of this paragraph.
This circumstance can be taken into account only when the facts
proven show that there is a notable and evident disproportion between
the means employed to execute the criminal act and its consequences.
(U.S. vs. Reyes, 36 Phil. 904, 907)
Illustrations:
1. The husband who was quarreling with his wife punched her
in the abdomen, causing the rupture of her hypertrophied
spleen, from which she died. (People vs. Rabao, 67 Phil.
255, 257, 259)
2. The accused confined himself to giving a single blow with
a bolo on the right arm of the victim and did not repeat the
blow. The death of the victim was due to neglect and the lack
of medical treatment, his death having resulted from hemorrhage
which those who attended to him did not know how to
stop or control in time. (U.S. vs. Bertucio, 1 Phil. 47, 49)
3. The accused, a policeman, boxed the deceased, a detention
prisoner, inside the jail. As a consequence of the fistic blows,
the deceased collapsed on the floor. The accused stepped
on the prostrate body and left. After a while, he returned
with a bottle, poured its contents on the recumbent body
of the deceased, ignited it with a match and left the cell
again. As a consequence, the victim later on died. Held: The
accused is entitled to the mitigating circumstance of "no
intention to commit so grave a wrong as that committed."
(People vs. Ural, No. L-30801, March 27, 1974, 56 SCRA
138, 140-141, 146)
Intention, being an internal state, must be judged by external
acts.
The intention, as an internal act, is judged not only by the proportion
of the means employed by him to the evil produced by his act,
but also by the fact that the blow was or was not aimed at a vital part
of the body.
267
Art. 13 MITIGATING CIRCUMSTANCES
Par. 3 No Intention to Commit So Grave A Wrong
Thus, it may be deduced from the proven facts that the accused
had no intent to kill the victim, his design being only to maltreat
him, such that when he realized the fearful consequences of his
felonious act, he allowed the victim to secure medical treatment at
the municipal dispensary. (People vs. Ural, No. L-30801, March 27,
1974, 56 SCRA 138, 146)
Thus, where the accused fired a loaded revolver at the deceased
and killed him, it must be presumed, taking into consideration
the means employed as being sufficient to produce the evil which
resulted, that he intended the natural consequence of his act and he
is, therefore, not entitled to the benefit of the mitigating circumstance
of lack of intention to commit a wrong as that committed. (U.S. vs.
Fitzgerald, 2 Phil. 419, 422)
Thus, where at the time of the commission of the crime, the
accused was 32 years of age, while his victim was 25 years his senior,
and when the latter resisted his attempt to rape her by biting and
scratching him, to subdue her, the accused boxed her and then held her
on the neck and pressed it down, while she was lying on her back and
he was on top of her, these acts were reasonably sufficient to produce
the result that they actually produced—the death of the victim. (People
vs. Amit, No. L-29066, March 25,1970, 32 SCRA 95, 98)
So also, when the assailant, armed with a bolo, inflicted upon
his victim a serious and fatal wound in the abdomen, it is not to be
believed that he had no intention of killing his victim, having clearly
shown, by the location of the wound, that he had a definite and
perverse intention of producing the injury which resulted. (U.S. vs.
Mendac, 31 Phil. 240, 244-245)
Defendant alleged as mitigating circumstance that he did not
intend to commit so grave an injury. Held: The plea is groundless;
he used a knife six inches long. The fatal injury was the natural and
almost inevitable consequence. Moreover, he attempted to stab a
second time but was prevented from doing so. (People vs. Orongan,
et al, 58 Phil. 426, 429)
The weapon used, the part of the body injured, the injury
inflicted, and the manner it is inflicted may show that the
accused intended the wrong committed.
1. Intention must be judged by considering the weapon used,
the injury inflicted, and his attitude of the mind when the
268
MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3
accused attacked the deceased. Thus, when the accused
used a heavy club in attacking the deceased whom he
followed some distance, without giving him an opportunity
to defend himself, it is to be believed that he intended to do
exactly what he did and must be held responsible for the
result, without the benefit of this mitigating circumstance.
(People vs. Flores, 50 Phil. 548, 551)
2. When a person stabs another with a lethal weapon such
as a fan knife (and the same could be said of the butt of a
rifle), upon a part of the body, for example, the head, chest,
or stomach, death could reasonably be anticipated and the
accused must be presumed to have intended the natural
consequence of his wrongful act. (People vs. Reyes, 61 Phil.
341, 343; People vs. Datu Baguinda, 44 O.G. 2287)
3. The weapon used, the force of the blow, the spot where the
blow was directed and landed, and the cold blood in which
it was inflicted, all tend to negative any notion that the
plan was anything less than to finish the intended victim.
The accused in this case struck the victim with a hammer
on the right forehead. (People vs. Banlos, G.R. No. L-3412,
Dec. 29, 1950)
4. As to the alleged lack of intent to commit so grave a wrong
as that committed, the same cannot be appreciated. The
clear intention of the accused to kill the deceased may be
inferred from the fact that he used a deadly weapon and
fired at the deceased almost point blank, thereby hitting
him in the abdomen and causing death. (People vs. Reyes,
No. L-33154, Feb. 27, 1976, 69 SCRA 474, 482)
5. Where the evidence shows that, if not all the persons who
attacked the deceased, at least some of them, intended
to cause his death by throwing at him stones of such size
and weight as to cause, as in fact they caused, a fracture of
his skull, and as the act of one or some of them is deemed
to be the act of the others there being sufficient proof of
conspiracy, the mitigating circumstance of lack of intent
to commit so grave a wrong as the one actually committed
cannot favorably be considered. (People vs. Bautista, Nos.
L-23303-04, May 20, 1969, 28 SCRA 184,190-191; People
269
Art. 13 MITIGATING CIRCUMSTANCES
Par. 3 No Intention to Commit So Grave A Wrong
vs. Espejo, No. L-27708, Dec. 19, 1970, 36 SCRA 400,
424)
Inflicting of five stab wounds in rapid succession negates pretense of
lack of intention to cause so serious an injury.
The inflicting by the accused of five (5) stab wounds caused in
rapid succession brings forth in bold relief the intention of the accused
to snuff out the life of the deceased, and definitely negates any
pretense of lack of intention to cause so serious an injury. (People vs.
Brana, No. L-29210, Oct. 31, 1969, 30 SCRA 307, 316)
Art. 13, par. 3, is not applicable when the offender employed
brute force.
To prove this circumstance, the accused testified that "my only
intention was to abuse her, but when she tried to shout, I covered
her mouth and choked her and later I found out that because of that
she died." The Supreme Court said: "It is easy enough for the accused
to say that he had no intention to do great harm. But he knew
the girl was very tender in age (6 years old), weak in body, helpless
and defenseless. He knew or ought to have known the natural and
inevitable result of the act of strangulation, committed by men of
superior strength, specially on an occasion when she was resisting
the onslaught upon her honor. The brute force employed by the appellant,
completely contradicts the claim that he had no intention to
kill the victim." (People vs. Yu, No. L-13780, Jan. 28, 1961, 1 SCRA
199,204)
It is the intention of the offender at the moment when he is committing
the crime which is considered.
The point is raised that the trial court should have considered
the mitigating circumstance of lack of intent to commit so grave a
wrong as that committed. The argument is that the accused planned
only to rob; they never meant to kill. Held: Art. 13, par. 3, of the
Revised Penal Code addresses itself to the intention of the offender
at the particular moment when he executes or commits the criminal
act; not to his intention during the planning stage. Therefore, when,
as in the case under review, the original plan was only to rob, but
which plan, on account of the resistance offered by the victim, was
compounded into the more serious crime of robbery with homicide,
270
MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3
271
the plea of lack of intention to commit so grave a wrong cannot be
rightly granted. The irrefutable fact remains that when they ganged
up on their victim, they employed deadly weapons and inflicted on him
mortal wounds in his neck. At that precise moment, they did intend
to kill their victim, and that was the moment to which Art. 13, par.
3, refers. (People vs. Boyles, No. L-15308, May 29,1964,11 SCRA 88,
95-96; People vs. Arpa, No. L-26789, April 25, 1969, 27 SCRA 1037,
1045-1046)
Art. 13, par. 3 of the Revised Penal Code "addresses itself to the
intention of the offender at the particular moment when he executes
or commits the criminal act; not to his intention during the planning
stage." Therefore, if the original plan, as alleged by the accused, was
merely to ask for forgiveness from the victim's wife who scolded them
and threatened to report them to the authorities, which led to her
killing, the plea of lack of intention to commit so grave a wrong cannot
be appreciated as a mitigating circumstance. The records show that
the accused held the victim's wife until she fell to the floor, whereupon
they strangled her by means of a piece of rope tied around her neck
till she died. The brute force employed by the accused completely
contradicts the claim that they had no intention to kill the victim.
(People vs. Garachico, No. L-30849, March 29,1982,113 SCRA 131,
152)
Lack of intention to commit so grave a wrong mitigating in
robbery with homicide.
The mitigating circumstance of lack of intent to commit so
grave a wrong may be appreciated favorably in robbery with homicide,
where it has not been satisfactorily established that in forcing
entrance through the door which was then closed, with the use of
pieces of wood, the accused were aware that the deceased was behind
the door and would be hurt, and there is no clear showing that they
ever desired to kill the deceased as they sought to enter the house to
retaliate against the male occupants or commit robbery. (People vs.
Abueg, No. L-54901, Nov. 24, 1986, 145 SCRA 622, 634)
Appreciated in murder qualified by circumstances based on
manner of commission, not on state of mind of accused.
Several accused decided to have a foreman beaten up. The deed
was accomplished. But the victim died as a result of hemorrhage. It
Art. 13 MITIGATING CIRCUMSTANCES
Par. 3 No Intention to Commit So Grave A Wrong
was not the intention of the accused to kill the victim. Held: Murder
results from the presence of qualifying circumstances (in this case
with premeditation and treachery) based upon the manner in which
the crime was committed and not upon the state of mind of the accused.
The mitigating circumstance that the offender had no intention
to commit so grave a wrong as that committed is based on the state
of mind of the offender. Hence, there is no incompatibility between
evident premeditation or treachery, which refers to the manner of
committing the crime, and this mitigating circumstance. (People vs.
Enriquez, 58 Phil. 536, 544-545)
Not appreciated in murder qualified by treachery.
Lack of intention to commit so grave a wrong is not appreciated
where the offense committed is characterized by treachery. The five
accused claim that the weapons used are mere pieces of wood, and the
fact that only seven blows were dealt the deceased by the five of them,
only two of which turned out to be fatal, shows that the tragic and
grievous result was far from their minds. The record shows, however,
that the offense committed was characterized by treachery and the
accused left the scene of the crime only after the victim had fallen
down. Hence, the mitigating circumstance of lack of intention cannot
be appreciated in their favor. (People vs. Pajenado, No. L-26458, Jan.
30, 1976, 69 SCRA 172, 180)
Lack of intent to kill not mitigating in physical injuries.
In crimes against persons who do not die as a result of the
assault, the absence of the intent to kill reduces the felony to
mere physical injuries, but it does not constitute a mitigating
circumstance under Art. 13, par. 3. (People vs. Galacgac, C.A., 54
O.G.1207)
Mitigating when the victim dies.
As part of their fun-making, the accused merely intended to set
the deceased's clothes on fire. Burning the clothes of the victim would
cause at the very least some kind of physical injuries on this person.
The accused is guilty of the resulting death of the victim but he is
entitled to the mitigating circumstance of no intention to commit so
grave a wrong as that committed. (People vs. Pugay, No. L-74324,
Nov. 17, 1988, 167 SCRA 439, 449)
272
MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3
Not applicable to felonies by negligence.
In the case of infidelity in the custody of prisoners through
negligence (Art. 224), this circumstance was not considered. (People
vs. Medina, C.A., 40 O.G. 4196)
The reason is that in felonies through negligence, the offender
acts without intent. The intent in intentional felonies is replaced
by negligence, imprudence, lack of foresight or lack of skill in
culpable felonies. Hence, in felonies through negligence, there is
no intent on the part of the offender which may be considered as
diminished.
Is Art. 13, par. 3, applicable to felonies where the intention of
the offender is immaterial?
In unintentional abortion, where the abortion that resulted
is not intended by the offender, the mitigating circumstance that
the offender had no intention to commit so grave a wrong as that
committed is not applicable. (People vs. Cristobal, C.A., G.R. No.
8739, Oct. 31,1942)
But in another case, where the accused pulled the hair of
the complainant who was three months pregnant causing her to
fall on her buttocks on the cement floor, with the result that after
experiencing vaginal hemorrhage the foetus fell from her womb, it
was held that the accused having intended at the most to maltreat
the complainant only, the mitigating circumstance in Art. 13, par.
3, should be considered in his favor. (People vs. Flameno, C.A., 58
O.G. 4060)
Unintentional abortion is committed by any person who, by violence,
shall cause the killing of the foetus in the uterus or the violent
expulsion of the foetus from the maternal womb, causing its death,
but unintentionally. (Art. 257)
Applicable only to offenses resulting in physical injuries or
material harm.
Thus, the mitigating circumstance that the offender did not
intend to commit so grave a wrong as that committed was not appreciated
in cases of defamation or slander. (People vs. Galang de
Bautista, C.A., 40 O.G. 4473)
273
Art. 13
Par. 4
MITIGATING CIRCUMSTANCES
Provocation or Threat
Basis of paragraph 3.
In this circumstance, intent, an element of voluntariness in
intentional felony, is diminished.
Par. 4. — That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
What is provocation?
By provocation is understood any unjust or improper conduct
or act of the offended party, capable of exciting, inciting, or irritating
any one.
Requisites:
1. That the provocation must be sufficient.
2. That it must originate from the offended party.
3. That the provocation must be immediate to the act, i.e.,
to the commission of the crime by the person who is
provoked.
The provocation must be sufficient.
Provocation in order to be mitigating must be sufficient and
immediately preceding the act. (People vs. Pagal, No. L-32040, Oct.
25,1977, 79 SCRA 570, 575-576)
The word "sufficient" means adequate to excite a person to commit
the wrong and must accordingly be proportionate to its gravity.
(People vs. Nabora, 73 Phil. 434, 435)
As to whether or not a provocation is sufficient depends upon
the act constituting the provocation, the social standing of the
person provoked, the place and the time when the provocation is
made.
Examples of sufficient provocation.
1. The accused was a foreman in charge of the preservation
of order and for which purpose he provided himself with a
274
MITIGATING CIRCUMSTANCES
Provocation or Threat
Art. 13
Par. 4
pick handle. The deceased, one of the laborers in the line to
receive their wages, left his place and forced his way into
the file. The accused ordered him out, but he persisted, and
the accused gave him a blow with the stick on the right
side of the head above the ear. Held: When the aggression
is in retaliation for an insult, injury, or threat, the offender
cannot successfully claim self-defense, but at most he
can be given the benefit of the mitigating circumstance
under the provisions of paragraph 4 of Article 13. (U.S. vs.
Carrero, 9 Phil. 544, 545-546)
2. When the deceased abused and ill-treated the accused by
kicking and cursing the latter, the accused who killed him
committed the crime with this mitigating circumstance.
(U.S. vs. Firmo, 37 Phil. 133, 135)
3. When in his house the accused saw an unknown person
jump out of the window and his wife begged for his pardon
on her knees, he killed her. Such conduct on the part of
his wife constitutes a sufficient provocation to the accused.
(People vs. Marquez, 53 Phil. 260, 262-263)
4. Although there was no unlawful aggression, because the
challenge was accepted by the accused, and therefore there
was no self-defense, there was however the mitigating
circumstance of immediate provocation. In this case, the
deceased insulted the accused and then challenged the
latter. (U.S. vs. Cortes, 36 Phil. 837)
When the defendant sought the deceased, the challenge to
fight by the latter is not provocation.
Thus, if the defendant appeared in front of the
house of the deceased, after they had been separated by
other persons who prevented a fight between them, even
if the deceased challenged him to a fight upon seeing him
near his house, the defendant cannot be given the benefit of
the mitigating circumstance of provocation, because when
the defendant sought the deceased, the former was ready
and willing to fight. (U.S. vs. Mendac, 31 Phil. 240)
5. There was sufficient provocation on the part of the victim
where the latter hit the accused with his fist on the eye of
275
Art. 13
Par. 4
MITIGATING CIRCUMSTANCES
Provocation or Threat
the accused before the fight. (People vs. Manansala, Jr.,
31 SCRA 401)
6. The deceased, while intoxicated, found the accused lying
down without having prepared the evening meal. This
angered the deceased and he abused the accused by kicking
and cursing him. A struggle followed and the accused
stabbed him with a pen knife. The accused was entitled to
the mitigating circumstance that sufficient provocation or
threat immediately preceded the act. (U.S. vs. Firmo, 37
Phil. 133)
7. The victim's act of kicking the accused on the chest prior
to the stabbing does not constitute unlawful aggression for
purposes of self-defense, but the act may be considered as
sufficient provocation on the victim's part, a mitigating
circumstance that may be considered in favor of the accused.
(People vs. Macariola, No. L-40757, Jan. 24, 1983,
120 SCRA 92, 102)
8. Thrusting his bolo at petitioner, threatening to kill him,
and hacking the bamboo walls of his house are, in our view,
sufficient provocation to enrage any man, or stir his rage
and obfuscate his thinking, more so when the lives of his
wife and children are in danger. Petitioner stabbed the victim
as a result of those provocations, and while petitioner
was still in a fit of rage. In our view, there was sufficient
provocation and the circumstance of passion or obfuscation
attended the commission of the offense. (Romera vs. People,
G.R. No. 151978, July 14, 2004)
Provocation held not sufficient.
(a) When the injured party asked the accused for an explanation
for the latter's derogatory remarks against certain
ladies, the accused cannot properly claim that he was
provoked to kill. (People vs. Laude, 58 Phil. 933)
(b) While the accused was taking a walk at the New Luneta
one evening, the deceased met him and pointing his finger
at the accused asked the latter what he was doing
there and then said: "Don't you know we are watching for
honeymooners here?" The accused drew out his knife and
276
MITIGATING CIRCUMSTANCES
Provocation or Threat
Art. 13
Par. 4
stabbed the deceased who died as a consequence. Held:
The provocation made by the deceased was not sufficient.
(People vs. Nabora, 73 Phil. 434)
(c) The fact that the deceased (a public officer) had ordered
the arrest of the accused for misdemeanor is not such a
provocation within the meaning of this paragraph that
will be considered in mitigation of the penalty for the
crime of homicide committed by the accused who killed the
officer giving such order. (U.S. vs. Abijan, 1 Phil. 83) The
performance of a duty is not a source of provocation.
(d) Assuming for the sake of argument that the blowing of
horns, cutting of lanes or overtaking can be considered as
acts of provocation, the same were not sufficient. The word
'sufficient' means adequate to excite a person to commit a
wrong and must accordingly be proportionate to its gravity.
Moreover, the deceased's act of asking for the accused to
claim that he was provoked to kill or injure the deceased.
(People vs. Court of Appeals, et. al, G.R. No. 103613, Feb.
23, 2001)
Provocation must originate from the offended party.
Where the alleged provocation did not come from the deceased
but from the latter's mother, the same may not be appreciated in
favor of the accused. (People vs. Reyes, No. L-33154, Feb. 27, 1976,
69 SCRA 474, 481)
A and B were together. A hit C on the head with a piece of
stone from his sling-shot and ran away. As he could not overtake A,
C faced B and assaulted the latter. In this case, C is not entitled to
this mitigating circumstance, because B never gave the provocation
or took part in it.
The reason for the requirement is that the law says that the
provocation is "on the part of the offended party."
If during the fight between the accused and another person who
provoked the affair, the deceased merely approached to separate
them and did not give the accused any reason for attacking him, and
in attacking the other person the accused killed the deceased, the
provocation given by the other person cannot be taken as a mitigating
circumstance. (U.S. vs. Malabanan, 9 Phil. 262, 264)
277
Art. 13
Par. 4
MITIGATING CIRCUMSTANCES
Provocation or Threat
Difference between sufficient provocation as requisite
of incomplete self-defense and as a mitigating circumstance.
Sufficient provocation as a requisite of incomplete self-defense
is different from sufficient provocation as a mitigating circumstance.
As an element of self-defense, it pertains to its absence on the part
of the person defending himself; while as a mitigating circumstance,
it pertains to its presence on the part of the offended party. (People
vs. Court of Appeals, et. al., G.R. No. 103613, Feb. 23, 2001)
The provocation by the deceased in the first stage of the fight is not a mitigating
circumstance when the accused killed him after he had fled.
The provocation given by the deceased at the commencement
of the fight is not a mitigating circumstance, where the deceased ran
away and the accused killed him while fleeing, because the deceased
from the moment he fled did not give any provocation for the accused
to pursue and to attack him. (People vs. Alconga, 78 Phil. 366, 370)
Provocation must be immediate to the commission of the
crime.
Between the provocation by the offended party and the
commission of the crime by the person provoked, there should not be
any interval of time.
The reason for this requirement is that the law states that the
provocation "immediately preceded the act." When there is an interval
of time between the provocation and the commission of the crime, the
conduct of the offended party could not have excited the accused to
the commission of the crime, he having had time to regain his reason
and to exercise self-control.
Provocation given by an adversary at the commencement and
during the first stage of a fight cannot be considered as mitigating
where the accused pursued and killed the former while fleeing, and
the deceased, from the moment he had fled after the first stage of
the fight to the moment he died, did not give any provocation for the
accused to pursue, much less further attack him. (People vs. Tan, No.
L-22697, Oct. 5, 1976, 73 SCRA 288, 294)
The provocation did not immediately precede the shooting. The
accused had almost a day to mull over the alleged provocation before
278
MITIGATING CIRCUMSTANCES
Provocation or Threat
Art. 13
Par. 4
he reacted by shooting the victim. The inevitable conclusion is that
he did not feel sufficiently provoked at the time the alleged provocation
was made, and when he shot the victim the next day, it was a
deliberate act of vengeance and not the natural reaction of a human
being to immediately retaliate when provoked. (People vs. Benito,
No. L-32042, Feb. 13, 1975, 62 SCRA 351, 357)
But see the case of People vs. Deguia, et al., G.R. No. L-3731, April
20,1951, where one of the accused, after the provocation by the deceased
consisting in accusing him of having stolen two jack fruits from his tree
and summarily taking them from the sled of the accused, went home
and later returned fully armed and killed the deceased. Yet, it was held
that the provocation should be considered in favor of the accused.
There seems to be a misapplication of the rule in this case. This
ruling would be correct if the accusation that the accused stole the
jack fruits be considered as a grave offense instead of provocation,
because an interval of time between the grave offense and the commission
of the crime is allowed in such a case.
Threat immediately preceded the act.
Thus, if A was threatened by B with bodily harm and because
of the threat, A immediately attacked and injured B, there was a
mitigating circumstance of threat immediately preceding the act.
The threat should not be offensive and positively strong, because, if
it is, the threat to inflict real injury is an unlawful aggression which may
give rise to self-defense. (U.S. vs. Guysayco, 13 Phil. 292, 295-296)
Vague threats not sufficient.
The victim's mere utterance, "If you do not agree, beware,"
without further proof that he was bent upon translating his vague
threats into immediate action, is not sufficient.
But where the victims shouted at the accused, "Follow us if you
dare and we will kill you," there is sufficient threat.
Basis of paragraph 4.
The mitigating circumstance in paragraph 4 of Art. 13 is based
on the diminution of intelligence and intent.
279
Art. 13
Par. 5
MITIGATING CIRCUMSTANCES
Vindication of Grave Offense
Par. 5. — That the act was committed in the immediate
vindication of a grave offense to the one committing the
felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or
relatives by affinity within the same degrees.
Requisites:
1. That there be a grave offense done to the one committing
the felony, his spouse, ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or relatives by
affinity within the same degrees;
2. That the felony is committed in vindication of such grave
offense. A lapse of time is allowed between the vindication
and the doing of the grave offense.
Illustrations:
1. Being accused by the victim that the accused stole the
former's rooster which made the latter feel deeply embarrassed,
and the encounter took place in about half an hour's
time. (People vs. Pongol, C.A., 66 O.G. 5617, citing People
vs. Libria, 95 Phil. 398)
2. Stabbing to death the son of the accused which most
naturally and logically must have enraged and obfuscated
him that, seized by that feeling of hatred and rancour, he
stabbed indiscriminately the people around. (People vs.
Doniego, No. L-17321, Nov. 29, 1963, 9 SCRA 541, 546,
547)
A lapse of time is allowed between the grave offense and the
vindication.
The word "immediate" used in the English text is not the correct
translation. The Spanish text uses "proximo." The fact that the
accused was slapped by the deceased in the presence of many persons
a few hours before the former killed the latter, was considered a
mitigating circumstance that the act was committed in the immediate
vindication of a grave offense. Although the grave offense (slapping
of the accused by the deceased), which engendered perturbation of
mind, was not so immediate, it was held that the influence thereof,
280
MITIGATING CIRCUMSTANCES
Vindication of Grave Offense
Art. 13
Par. 5
by reason of its gravity and the circumstances under which it was
inflicted, lasted until the moment the crime was committed. (People
vs. Parana, 64 Phil. 331, 337)
In the case of People vs. Palaan, G.R. No. 34976, Aug. 15,1931,
unpublished, the killing of the paramour by the offended husband
one day after the adultery was considered still proximate.
In the case of People vs. Diokno, 63 Phil. 601, the lapse of time
between the grave offense (abducting the daughter of the accused by
the deceased) and the vindication (killing of the deceased) was two
or three days.
In this case, the Supreme Court said —
"The presence of the fifth mitigating circumstance of Article
13 of the Revised Penal Code, that is, immediate vindication
of a grave offense . . . may be taken into consideration in favor
of the two accused, because although the elopement took place
on January 4, 1935, and the aggression on the 7th of said
month and year, the offense did not cease while (the abducted
daughter's) whereabouts remained unknown and her marriage
to the deceased unlegalized. Therefore, there was no interruption
from the time the offense was committed to the vindication
thereof. (The) accused belongs to a family of old customs to whom
the elopement of a daughter with a man constitutes a grave
offense to their honor and causes disturbance of the peace and
tranquility of the home and at the same time spreads uneasiness
and anxiety in the minds of the members thereof." (p. 608)
Interval of time negating vindication.
1. Approximately nine (9) months before the killing, the deceased
boxed the accused several times in the face resulting in the
conviction of the deceased for less serious physical injuries. He
appealed, pending which the accused killed him. It cannot be
said that the second incident was an immediate or a proximate
vindication of the first. (People vs. Lumayag, No. L-19142, March
31, 1965, 13 SCRA 502, 507-508)
2. The deceased uttered the following remark at eleven o'clock in
the morning in the presence of the accused and his officemates:
"Nag-iistambay pala dito ang magnanakaw." or "Hindi ko alam
281
Art. 13
Par. 5
MITIGATING CIRCUMSTANCES
Vindication of Grave Offense
na itong Civil Service pala ay istambayan ng magnanakaw." At
five o'clock in the afternoon of the same day, the accused killed
the deceased. The mitigating circumstance of vindication of a
grave offense does not avail. (People vs. Benito, No. L-32042,
Dec. 17, 1976, 74 SCRA 271, 279, 282-283)
3. Where the accused heard the deceased say that the accused's
daughter is a flirt, and the accused stabbed the victim two
months later, the mitigating circumstance of immediate
vindication of a grave offense cannot be considered in favor of
accused because he had sufficient time to recover his serenity.
The supposed vindication did not immediately or proximately
follow the alleged insulting and provocative remarks. (People
vs. Lopez, G.R. No. 136861, November 15, 2000)
Distinguish provocation from vindication.
1. In the case of provocation, it is made directly only to the person
committing the felony; in vindication, the grave offense may be
committed also against the offender's relatives mentioned by
the law.
2. In vindication, the offended party must have done a grave offense
to the offender or his relatives mentioned by the law; in
provocation, the cause that brought about the provocation need
not be a grave offense.
3. In provocation, it is necessary that the provocation or threat
immediately preceded the act, i.e., that there be no interval of
time between the provocation and the commission of the crime;
while in vindication, the vindication of the grave offense may
be proximate, which admits of an interval of time between the
grave offense done by the offended party and the commission of
the crime by the accused.
Reason for the difference.
This greater leniency in the case of vindication is due undoubtedly
to the fact that it concerns the honor of a person, an offense which
is more worthy of consideration than mere spite against the one giving
the provocation or threat.
Killing a relative is a grave offense.
It was most natural and logical for the appellant to have been
enraged and obfuscated at the sight of his dead son and seized by
282
MITIGATING CIRCUMSTANCES
Vindication of Grave Offense
Art. 13
Par. 5
that feeling of hatred and rancour, to have stabbed indiscriminately
the people around x x x.
On the other hand, the attenuating circumstance of immediate
vindication of a grave offense—the stabbing of his son to death,
or of having committed the crime upon an impulse so powerful as
naturally to have produced passion or obfuscation, may be deemed
to have attended the commission of the crime alternatively, because
both mitigating circumstances cannot co-exist. (People vs. Doniego,
9 SCRA 541)
Basis to determine the gravity of offense in vindication.
The question whether or not a certain personal offense is grave
must be decided by the court, having in mind the social standing of
the person, the place, and the time when the insult was made. (See
People vs. Ruiz, 93 SCRA 739, where the rule was applied.)
During a fiesta, an old man 70 years of age asked the deceased
for some roast pig. In the presence of many guests, the deceased
insulted the old man, saying: "There is no more. Come here and I will
make roast pig of you." A little later, while the deceased was squatting
down, the old man came up behind him and struck him on the head
with an ax. Held: While it may be mere trifle to an average person,
it evidently was a serious matter to an old man, to be made the butt
of a joke in the presence of so many guests. The accused was given
the benefit of the mitigating circumstance of vindication of a grave
offense. (U.S. vs. Ampar, 37 Phil. 201)
In that case, the age of the accused and the place were considered
in determining the gravity of the offense.
Considered grave offense:
1. Sarcastic remark implying that the accused was a petty
tyrant.
The offended party, a volunteer worker to repair
an abandoned road, arrived in the afternoon when the
work should have started in the morning. Inquired by the
accused, the man in charge of the work, why he came late,
the offended party retorted sarcastically: "Perhaps during
the Spanish regime when one comes late, he is punished."
283
Art. 13
Par. 5
MITIGATING CIRCUMSTANCES
Vindication of Grave Offense
Infuriated at the reply, the accused fired his gun but did
not hit the offended party. (People vs. Batiquin, C.A., 40
O.G. 987)
2. Remark of the injured party before the guests that accused
lived at the expense of his wife. (People vs. Rosel, 66 Phil.
323) The place was taken into consideration in that case.
3. Taking into account that the American forces had just
occupied Manila, it is not strange that the accused should
have considered it then as a grave offense when the
offended party said: "You are a Japanese spy." (People vs.
Luna, 76 Phil. 101, 105)
The time was taken into consideration in that case.
4. If a person kills another for having found him in the act
of committing an attempt against his (accused's) wife, he
is entitled to the benefits of this circumstance of having
acted in vindication of a grave offense against his and his
wife's honor. (U.S. vs. Alcasid, 1 Phil. 86; See also U.S. vs.
Davis, 11 Phil. 96, 99)
5. Where the injured party had insulted the father of the accused
by contemptuously telling him: "Phse, ichura mong lalake"
(Pshaw, you are but a shrimp), the accused who attacked the
injured party acted in vindication of a grave offense to his
father. (People vs. David, 60 Phil. 93, 97,103)
The provocation should be proportionate to the damage caused
by the act and adequate to stir one to its commission.
Aside from the fact that the provocation should immediately
precede the commission of the offense, it should also be proportionate
to the damage caused by the act and adequate to stir one to its commission.
The remark attributed to the deceased that the daughter of
the accused is a flirt does not warrant and justify the act of accused
in slaying the victim. (People vs. Lopez, G.R. No. 136861, November
15, 2000)
Basis of paragraph 5.
The mitigating circumstance in paragraph 5 of Art. 13 is based
on the diminution of the conditions of voluntariness.
284
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Art. 13
Par. 6
Grave offense must be directed to the accused.
The supposed grave offense done by the victim was an alleged
remark made in the presence of the accused that the Civil Service
Commission is a hangout of thieves. The accused felt alluded to
because he was facing then criminal and administrative charges on
several counts involving his honesty and integrity.
The remark itself was general in nature and not specifically
directed to the accused. If he felt alluded to by a remark which he
personally considered insulting to him, that was his own individual
reaction thereto. Other people in the vicinity who might have heard
the remark could not have possibly known that the victim was
insulting the accused unless they were aware of the background of
the criminal and administrative charges involving moral turpitude
pending against the accused. The remark cannot be considered a
grave offense against the accused. (People vs. Benito, No. L-32042,
Feb. 13,1975, 62 SCRA 351, 355-356)
Vindication of a grave offense incompatible with passion or
obfuscation.
Vindication of a grave offense and passion or obfuscation cannot
be counted separately and independently. (People vs. Dagatan, 106
Phil. 88, 98)
Par. 6. — That of having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation.
This paragraph requires that —
1. The accused acted upon an impulse.
2. The impulse must be so powerful that it naturally produced
passion or obfuscation in him.
Why passion or obfuscation is mitigating.
When there are causes naturally producing in a person powerful
excitement, he loses his reason and self-control, thereby diminishing
the exercise of his will power. (U.S. vs. Salandanan, 1 Phil. 464,
465)
285
Art. 13
Par. 6
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Rule for the application of this paragraph.
Passion or obfuscation may constitute a mitigating circumstance
only when the same arose from lawful sentiments.
For this reason, even if there is actually passion or obfuscation
on the part of the offender, there is no mitigating circumstance,
when:
(1) The act is committed in a spirit of lawlessness; or
(2) The act is committed in a spirit of revenge.
Requisites of the mitigating circumstance of passion or obfuscation:
1. That there be an act, both unlawful and sufficient to produce
such a condition of mind; and
2. That said act which produced the obfuscation was not far
removed from the commission of the crime by a considerable
length of time, during which the perpetrator might recover
his normal equanimity. (People vs. Alanguilang, 52 Phil.
663, 665, citing earlier cases; People vs. Ulita, 108 Phil.
730, 743; People vs. Gravino, Nos. L-31327-29, May 16,
1983,122 SCRA 123, 134)
The act of the offended party must be unlawful or unjust.
The crime committed by the accused must be provoked by prior
unjust or improper acts of the injured party. (U.S. vs. Taylor, 6 Phil.
162, 163)
Thus, a common-law wife, who, having left the common home,
refused to go home with the accused, was acting within her rights,
and the accused (the common-law husband) had no legitimate right
to compel her to go with him. The act of the deceased in refusing
to go home with the accused, while provocative, nevertheless was
insufficient to produce the passion and obfuscation that the law
contemplates. (People vs. Quijano, C.A., 50 O.G. 5819)
But where the accused killed his wife on the occasion when she
visited her aunt's husband, this mitigating circumstance was held
to be applicable, having in mind the jealousy of the accused and her
refusal to return to his house until after the arrival of her uncle. (U.S.
vs. Ortencio, 38 Phil. 341, 344-345)
286
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Art. 13
Par. 6
The mitigating circumstance of having acted under an impulse
so powerful as to have produced passion and obfuscation should be
considered in favor of the owner who, upon seeing the person who
stole his carabao, shoots the supposed thief. (People vs. Ancheta, et
al, C.A., 39 O.G. 1288)
The act of the deceased in creating trouble during the wake of
the departed father of defendant-appellant scandalizes the mourners
and offends the sensibilities of the grieving family. Considering that
the trouble created by the deceased was both unlawful and sufficient
to infuriate accused-appellant, his guilt is mitigated by passion or
obfuscation. (People vs. Samonte, Jr., No. L-31225, June 11, 1975,
64 SCRA 319, 329-330)
The accused is entitled to the mitigating circumstance of passion
or obfuscation where he hit the deceased upon seeing the latter box
his 4-year-old son. The actuation of the accused arose from a natural
instinct that impels a father to rush to the rescue of a beleaguered
son, regardless of whether the latter be right or wrong. (People vs.
Castro, No. L-38989, Oct. 29, 1982, 117 SCRA 1014, 1020)
Exercise of a right or fulfillment of duty is not proper source
of passion or obfuscation.
The accused killed the deceased when the latter was about to
take the carabao of the accused to the barrio lieutenant. Held: The
action of the deceased in taking the carabao of the accused to him
and demanding payment for the sugar cane destroyed by that carabao
and in taking the carabao to the barrio lieutenant when the accused
refused to pay, was perfectly legal and proper and constituted no
reasonable cause for provocation to the accused. The finding that
the accused acted upon an impulse so powerful as naturally to
have produced passion or obfuscation was not justified, because the
deceased was clearly within his rights in what he did. (People vs.
Noynay, et al, 58 Phil. 393)
Since the mother of the child, killed by the accused, had the
perfect right to reprimand the said accused for indecently converting
the family's bedroom into a rendezvous of herself and her lover, the
said accused cannot properly invoke the mitigating circumstance of
passion or obfuscation to minimize her liability for the murder of the
child. (People vs. Caliso, 58 Phil. 283)
287
Art. 13
Par. 6
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Where the accused was making a disturbance on a public street
and a policeman came to arrest him, the anger and indignation of
the accused resulting from the arrest cannot be considered passion
or obfuscation, because the policeman was performing a lawful act.
(U.S. vs. Taylor, 6 Phil. 162)
The act must be sufficient to produce such a condition of
mind.
If the cause of the loss of self-control was trivial and slight, as
when the victim failed to work on the hacienda of which the accused
was the overseer, or where the accused saw the injured party picking
fruits from the tree claimed by the former, the obfuscation is not
mitigating. (U.S. vs. Diaz, 15 Phil. 123; People vs. Bakil, C.A., 44
O.G. 102)
No passion or obfuscation after 24 hours, or several hours
or half an hour.
There could have been no mitigating circumstance of passion or
obfuscation when more than 24 hours elapsed between the alleged
insult and the commission of the felony (People vs. Sarikala, 37 Phil.
486, 490), or if several hours passed between the cause of passion or
obfuscation and the commission of the crime (People vs. Aguinaldo, 92
Phil. 583,588), or where at least half an hour intervened between the
previous fight and subsequent killing of the deceased by the accused.
(People vs. Matbagon, 60 Phil. 887, 890)
Although the fact that accused was subjected by the deceased
to a treatment (being slapped and asked to kneel down) offensive to
his dignity could give rise to the feeling of passion or obfuscation,
the same cannot be treated as a mitigating circumstance where the
killing took place one month and five days later. (People vs. Mojica,
No. L-30742, April 30, 1976, 70 SCRA 502, 509)
It is error to consider for the accused, passion or obfuscation,
where the newspaper articles written by the victim assailing the
former's official integrity have been published for an appreciable
period long enough for pause and reflection. (People vs. Pareja, No.
L-21937, Nov. 29, 1969, 30 SCRA 693, 716-717)
The circumstance is unavailing where the killing took place four
days after the stabbing of the accused's kin. (People vs. Constantino,
No. L-23558, Aug. 10, 1967, 20 SCRA 940, 949)
288
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Art. 13
Par. 6
The reason for these rulings is that the act producing the obfuscation
must not be far removed from the commission of the crime by
a considerable length of time, during which the accused might have
recovered his normal equanimity.
The defense must prove that the act which produced passion or obfuscation
took place at a time not far removed from the commission
of the crime.
The accused claimed that he had not been regularly paid his
wages by the victims who, he claimed further, used to scold him
and beat him; but he failed to prove that those acts which produced
passion and obfuscation in him took place at a time not far removed
from the commission of the crime which would justify an inference
that after his passion had been aroused, he had no time to reflect
and cool off. Mitigation does not avail him. (People vs. Gervacio, No.
L-21965, August 30, 1968, 24 SCRA 960, 977)
For the circumstance to exist, it is necessary that the act which
gave rise to the obfuscation be not removed from the commission of
the offense by a considerable length of time, during which period the
perpetrator might recover his normal equanimity. (People vs. Layson,
No. L-25177, Oct. 31,1969, 30 SCRA 92, 95-96)
The crime committed must be the result of a sudden impulse of natural
and uncontrollable fury.
Obfuscation cannot be mitigating in a crime which was planned
and calmly meditated or if the impulse upon which the accused acted
was deliberately fomented by him for a considerable period of time.
(People vs. Daos, 60 Phil. 143,155; People vs. Hernandez, 43 Phil. 104,
111)
The circumstance of passion and obfuscation cannot be mitigating
in a crime which is planned and calmly meditated before its
execution. (People vs. Pagal, No. L-32040, Oct. 25, 1977, 79 SCRA
570, 575)
There is neither passion and obfuscation nor proximate vindication
of a grave offense where the killing of the decedent was made four
days after the stabbing of the appellant's kin. Moreover, vengeance
is not a lawful sentiment. (People vs. Constantino, et al., G.R. No.
L-23558, August 10, 1967)
289
Art. 13
Par. 6
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Passion or obfuscation must arise from lawful sentiments.
1. The case of U.S. vs. Hicks, 14 Phil. 217.
Facts: For about 5 years, the accused and the deceased
lived illicitly in the manner of husband and wife. Afterwards,
the deceased separated from the accused and lived
with another man. The accused enraged by such conduct,
killed the deceased.
Held: Even if it is true that the accused acted
with obfuscation because of jealousy, the mitigating
circumstance cannot be considered in his favor because
the causes which mitigate criminal responsibility for the
loss of self-control are such which originate from legitimate
feelings, and not those which arise from vicious, unworthy
and immoral passions.
2. But the ruling in the case of Hicks should be distinguished
from the case where the accused, in the heat of passion,
killed his common-law wife upon discovering her in flagrante
in carnal communication with a common acquaintance. It
was held in such a case that the accused was entitled to the
mitigating circumstance of passion or obfuscation, because
the impulse was caused by the sudden revelation that she
was untrue to him, and his discovery of her in flagrante
in the arms of another. (U.S. vs. De la Cruz, 22 Phil. 429)
In U.S. vs. Hicks, the cause of passion and obfuscation of
the accused was his vexation, disappointment and anger
engendered by the refusal of the woman to continue to live
in illicit relations with him, which she had a perfect right
to do.
The act of the deceased in refusing to go home with the
appellant, while provocative, nevertheless was insufficient
to produce such passion or obfuscation in the latter as would
entitle him to the benefits of that mitigating circumstance.
Not being a legitimate husband of the deceased, the appellant
had no legitimate right to compel her to go with him.
The deceased was acting within her rights. The obfuscation
which the appellant allegedly possessed him, granting that
he in fact had that feeling, did not originate from a legitimate
cause. (People vs. Quijano, C.A., 50 O.G. 5819)
290
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Art. 13
Par. 6
3. The case of People vs. Engay, (C.A.) 47 O.G. 4306.
Facts: The accused, as common-law wife, lived with
the deceased for 15 years, whose house she helped support.
Later, the deceased married another woman. The accused
killed him.
Held: Although it was held in the Hicks case that "the
causes which produce in the mind loss of reason and selfcontrol
and which lessen criminal responsibility are those
which originate from lawful sentiments, not those which
arise from vicious, unworthy and immoral passions," yet
such is not the case here where the fact that the accused
lived for 15 long years as the real wife of the deceased,
whose house she helped to support, could not but arouse
that natural feeling of despair in the woman who saw her
life broken and found herself abandoned by the very man
whom she considered for so long a time as her husband and
for whom she had made so many sacrifices. The mitigating
circumstance of passion or obfuscation was considered in
favor of the accused.
4. Marciano Martin and Beatriz Yuman, without being
/ joined in lawful wedlock, lived as husband and wife for
three or four years until Marciano left their common
dwelling. Beatriz stabbed him with a pen-knife. When
asked why she wounded Marciano, she replied that Marciano
"after having taken advantage of her" abandoned
her. It was held that the mitigating circumstance of
obfuscation should be taken into consideration in favor
of the accused, in view of the peculiar circumstances of
the case and the harsh treatment which the deceased
gave her a short time before she stabbed him. (People
vs. Yuman, 61 Phil. 786)
5. The defense submits that the accused is entitled to the
mitigating circumstance of having acted on a provocation
sufficiently strong to cause passion and obfuscation, because
the deceased's flat rejection of the entreaties of the accused
for her to quit her calling as a hostess and return to their
former relation, aggravated by her sneering statement
that the accused was penniless and invalid, provoked the
291
Art. 13
Par. 6
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
accused into losing his head and stabbing the deceased.
It appears that the accused had previously reproved the
deceased for allowing herself to be caressed by a stranger.
Her loose conduct was forcibly driven home to the accused
by the remark of one Marasigan on the very day of the crime
that the accused was the husband "whose wife was being
used by one Maring for purposes of prostitution," a remark
that so deeply wounded the feelings of the accused that
he was driven to consume a large amount of wine before
visiting Alicia (deceased) to plead with her to leave her
work. Alicia's insulting refusal to renew her liaison with
the accused, therefore, was not motivated by any desire to
lead a chaste life henceforth, but showed her determination
to pursue a lucrative profession that permitted her to
distribute her favors indiscriminately. It was held that
the accused's insistence that she live with him again, and
his rage at her rejection of the proposal cannot be properly
qualified as arising from immoral and unworthy passions.
Even without benefit of wedlock, a monogamous liaison
appears morally of a higher level than gainful promiscuity.
(People vs. Bello, No. L-18792, Feb. 28,1964,10 SCRA 298,
302-303)
6. Passion or obfuscation must originate from lawful
sentiments, not from the fact that, for example, the girl's
sweetheart killed the girl's father and brother because the
girl's parents objected to their getting married and the girl
consequently broke off their relationship. Such an act is
actuated more by a spirit of lawlessness and revenge rather
than any sudden and legitimate impulse of natural and
uncontrollable fury. (People vs. Gravino, Nos. L-31327-29,
May 16,1983,122 SCRA 123, 133, 134)
In spirit of lawlessness.
The accused who raped a woman is not entitled to the mitigating
circumstance of "having acted upon an impulse so powerful as
naturally to have produced passion" just because he finds himself in
a secluded place with that young ravishing woman, almost naked,
and therefore, "liable to succumb to the uncontrollable passion of his
bestial instinct." (People vs. Sanico, C.A., 46 O.G. 98)
292
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Art. 13
Par. 6
In a spirit of revenge.
A woman taking care of a 9-month-old child, poisoned the child
with acid. She did it, because sometime before the killing of the child,
the mother of the child, having surprised her (accused) with a man
on the bed of the master, had scolded her. She invoked the mitigating
circumstance of passion or obfuscation resulting from that scolding
by the mother of the child. Held: She cannot be credited with such
mitigating circumstance. She was actuated more by spirit of lawlessness
and revenge than by any sudden impulse of natural and
uncontrollable fury. (People vs. Caliso, 58 Phil. 283, 295)
Passion and obfuscation may not be properly appreciated in
favor of appellant. To be considered as a mitigating circumstance,
passion or obfuscation must arise from lawful sentiments and not
from a spirit of lawlessness or revenge or from anger and resentment.
In the present case, clearly, Marcelo was infuriated upon seeing his
brother, Carlito, shot by Jose. However, a distinction must be made
between the first time that Marcelo hacked Jose and the second time
that the former hacked the latter. When Marcelo hacked Jose right
after seeing the latter shoot at Carlito, and if appellant refrained
from doing anything else after than, he could have validly invoked
the mitigating circumstance of passion and obfuscation. But when,
upon seeing his brother Carlito dead, Marcelo went back to Jose,
who by then was already prostrate on the ground and hardly moving,
hacking Jose again was a clear case of someone acting out of anger
in the spirit of revenge. (People vs. Bates, G.R. No. 139907, March
28,2003)
The offender must act under the impulse of special motives.
Excitement is the natural feeling of all persons engaged in a fight,
especially those who had received a beating, and the impulse in that
state is not considered in law so powerful as to produce obfuscation
sufficient to mitigate liability. (People vs. De Guia, C.A., 36 O.G.
1151)
Two individuals had been wrestling together and after being
separated, one of them followed up the other and wounded him with
a knife as he was entering a vehicle. Held: The aggressor cannot
claim in his favor that the previous struggle produced in him entire
loss of reason or self-control, for the existence of such excitement as
293
Art. 13
Par. 6
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
is inherent in all who quarrel and come to blows does not constitute
a mitigating circumstance. The guilty party must have acted under
the impulse of special motives. (U.S. vs. Herrera, 13 Phil. 583; U.S.
vs. Fitzgerald, 2 Phil. 419)
But the ruling is different in the following case:
While the Attorney-General hesitates to accept the conclusion
of the lower court with reference to the attenuating circumstances
of unjust provocation and arrebato y obcecacion, we are inclined to
accept that theory. The record discloses that each used very insulting
language concerning the other and that they must have been very
greatly excited as a result of the quarrel, or otherwise the other
people present would not have intervened. The acts complained of
were committed by the defendant soon after the quarrel had taken
place. (People vs. Flores, 50 Phil. 548)
Illustration of impulse of special motives.
The accused killed P, because the latter did not deliver the letter
of F to A, on which (letter) the accused had pinned his hopes of settling
the case against him amicably. The failure of P to deliver the letter is
a prior unjust and improper act sufficient to produce great excitement
and passion in the accused as to confuse his reason and impel him
to kill P. It was a legitimate and natural cause of indignation and
anger. (People vs. Mil, 92 SCRA 89)
Obfuscation arising from jealousy.
The mitigating circumstance of obfuscation arising from jealousy
cannot be invoked in favor of the accused whose relationship with the
woman (his common-law wife) was illegitimate. (People vs. Salazar,
105 Phil. 1058, citing U.S. vs. Hicks, 14 Phil. 217; People vs. Olgado,
et al., L-4406, March 31, 1952)
Where the killing of the deceased by the accused arose out
of rivalry for the hand of a woman, passion or obfuscation is
mitigating.
The feeling of resentment resulting from rivalry in amorous relations
with a woman is a powerful instigator of jealousy and prone to
produce anger and obfuscation. (People vs. Marasigan, 70 Phil. 583;
People vs. Macabangon, 63 Phil. 1062)
294
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Art. 13
Par. 6
In an early case, it was held that the loss of reason and selfcontrol
due to jealousy between rival lovers was not mitigating. (U.S.
vs. De la Pena, 12 Phil. 698)
Obfuscation — when relationship is illegitimate — not mitigating.
The relations of the accused with Rosario Rianzales were illegitimate.
The injured party made indecent propositions to her which
provoked the accused. The accused attacked the injured party. The
obfuscation of the accused is not mitigating, because his relations
with Rosario Rianzales were illegitimate. (People vs. Olgado, et al,
G.R. No. L-4406, March 31, 1952)
The cause producing passion or obfuscation must come from
the offended party.
The two sons, believing that S would inflict other wounds upon
their father, who was already wounded, in defense of their father, immediately
killed S. Under this great excitement, the two sons also proceeded
to attack and did kill C who was near the scene at the time.
Held: Since C had taken no part in the quarrel and had not in
any manner provoked the sons, passion or obfuscation cannot mitigate
their liability with respect to the killing of C. This extenuating
circumstance is applied to reduce the penalty in cases where the
provocation which caused the heated passion was made by the injured
party. (U.S. vs. Esmedia, et al, 17 Phil. 260)
Where passion or obfuscation of the accused is not caused by
the offended party but by the latter's relatives who mauled the wife
of the accused, the same may not be considered as a mitigating circumstance
in his favor. (People vs. Lao, C.A., 64 O.G. 7873)
May passion or obfuscation lawfully arise from causes existing
only in the honest belief of the offender?
Yes.
(1) Thus, the belief of the defendant that the deceased had
caused his dismissal from his employment is sufficient to
confuse his reason and impel him to commit the crime.
(U.S. vs. Ferrer, 1 Phil. 56, 62)
295
Art. 13
Par. 6
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
(2) It has also been held that the belief entertained in good
faith by the defendants that the deceased cast upon their
mother a spell of witchcraft which was the cause of her
serious illness, is so powerful a motive as to naturally
produce passion or obfuscation. (U.S. vs. Macalintal, 2 Phil.
448, 451; People vs. Zapata, 107 Phil. 103, 109)
(3) One of the accused, a self-anointed representative of God who
claims supernatural powers, demanded of the deceased to kiss
and awake her dead sister who, she said, was merely asleep.
The deceased, an old lady, refused. The accused thought that
the deceased had become a devil. Then she commanded her
companions to surround the deceased and pray to drive the
evil spirits away, but, allegedly without success. The accused
barked an order to beat the victim to death as she had turned
into Satan or Lucifer. Held: The accused and her sisters are
entitled to the mitigating circumstance of passion or obfuscation.
Her order to kiss and awake her sister was challenged
by the victim. This generated a false belief in the minds of
the three sisters that in the victim's person resided the evil
spirit — Satan or Lucifer. And this triggered "an impulse so
powerful as naturally to have produced passion or obfuscation."
(People vs. Torres, 3 CAR [2s] 43, 56, 57)
Basis of paragraph 6.
Passion or obfuscation is a mitigating circumstance because the
offender who acts with passion or obfuscation suffers a diminution of
his intelligence and intent.
Provocation and obfuscation arising from one and the same
cause should be treated as only one mitigating circumstance.
Since the alleged provocation which caused the obfuscation
of the appellants arose from the same incident, that is, the alleged
maltreatment and/or ill-treatment of the appellants by the deceased,
those two mitigating circumstances cannot be considered as two
distinct and separate circumstances but should be treated as one.
(People vs. Pagal, No. L-32040, Oct. 25, 1977, 79 SCRA 570, 575)
Thus, where the accused killed his wife during a quarrel, because
he, who had no work, resented her suggestion to join her brother in
296
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Art. 13
Par. 6
the business of cutting logs, the court erred in considering in favor
of the accused the two mitigating circumstances of provocation and
obfuscation.
Vindication of grave offense cannot co-exist with passion
and obfuscation.
In the case of People vs. Yaon, C.A., 43 O.G. 4142, it was held
that if the accused assailed his victim in the proximate vindication of
a grave offense, he cannot successfully allege that he was also, in the
same breath, blinded by passion and obfuscation, because these two
mitigating circumstances cannot both exist and be based on one and
the same fact or motive. At most, only one of them could be considered
in favor of the appellant, but not both simultaneously. Viada, citing
more than one dozen cases, says that it is the constant doctrine of
the Spanish Supreme Court that one single fact cannot be made the
basis of different modifying circumstances.
Exception — When there are other facts, although closely
connected.
But where there are other facts, although closely connected
with the fact upon which one circumstance is premised, the other
circumstance may be appreciated as based on the other fact. (People
vs. Diokno, 63 Phil. 601)
Thus, where the deceased, a Chinaman, had eloped with the
daughter of the accused, and later when the deceased saw the accused
coming, the deceased ran upstairs in his house, there are two facts
which are closely connected, namely: (1) elopement, which is a grave
offense to a family of old customs, and (2) refusal to deal with him, a
stimulus strong enough to produce in his mind a fit of passion. Two
mitigating circumstances of (1) vindication, and (2) passion were
considered in favor of the accused. The mitigating circumstance of
vindication of a grave offense was based on the fact of elopement and
that of passion on the fact that the deceased, instead of meeting him
and asking for forgiveness, ran away from the accused.
Passion or obfuscation compatible with lack of intention to
commit so grave a wrong.
So, it has been held in People vs. Cabel, 5 CAR [2s] 507, 515.
297
Art. 13
Par. 6
MITIGATING CIRCUMSTANCES
Passion or Obfuscation
Passion or obfuscation incompatible with treachery.
Passion or obfuscation cannot co-exist with treachery, for while
in the mitigating circumstance of passion or obfuscation the offender
loses his reason and self-control, in the aggravating circumstance of
treachery, the mode of attack must be consciously adopted. One who
loses his reason and self-control cannot deliberately employ a particular
means, method or form of attack in the execution of a crime.
(People vs. Wong, 18 CAR [2s] 934, 940-941)
Vindication or obfuscation cannot be considered when the person
attacked is not the one who gave cause therefor.
Vindication and obfuscation cannot be considered, not only
because the elopement of Lucila Dagatan with Eleuterio Yara
and her abandonment by the latter took place long before the
commission of the crime, but also because the deceased was not
the one who eloped with and abandoned her. (People vs. Dagatan,
et al., 106 Phil. 88)
Passion and obfuscation cannot co-exist with evident premeditation.
The aggravating circumstance of evident premeditation cannot
co-exist with the circumstance of passion and obfuscation. The essence
of premeditation is that the execution of the criminal act must be
preceded by calm thought and reflection upon the resolution to carry
out the criminal intent during the space of time sufficent to arrive
at a composed judgment. (People vs. Pagal, et. al., G.R. No. L-32040,
Oct. 25, 1977)
Passion or obfuscation distinguished from irresistible force.
1. While passion or obfuscation is a mitigating circumstance,
irresistible force is an exempting circumstance.
2. Passion or obfuscation cannot give rise to an irresistible
force because irresistible force requires physical force.
3. Passion or obfuscation, is in the offender himself, while
irresistible force must come from a third person.
4. Passion or obfuscation must arise from lawful sentiments;
whereas, the irresistible force is unlawful.
298
MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
Art. 13
Par. 7
Passion or obfuscation distinguished from provocation.
1. Provocation comes from the injured party; passion or obfuscation
is produced by an impulse which may be caused
by provocation.
2. Provocation must immediately precede the commission
of the crime; in passion or obfuscation, the offense which
engenders perturbation of mind need not be immediate. It
is only required that the influence thereof lasts until the
moment the crime is committed.
3. In both, the effect is the loss of reason and self-control on
the part of the offender.
Par. 7. — That the offender had voluntarily surrendered himself
to a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to
the presentation of the evidence for the prosecution.
Two mitigating circumstances are provided in this paragraph.
1. Voluntary surrender to a person in authority or his
agents.
2. Voluntary confession of guilt before the court prior to the
presentation of evidence for the prosecution.
Although these circumstances are considered mitigating in the
same subsection of Article 13, when both are present, they should
have the effect of mitigating as two independent circumstances. If any
of them must mitigate the penalty to a certain extent, when both are
present, they should produce this effect to a greater extent. (People
vs. Fontabla, 61 Phil. 589, 590)
Requisites of voluntary surrender.
a. That the offender had not been actually arrested.
b. That the offender surrendered himself to a person in
authority or to the latter's agent.
c. That the surrender was voluntary. (Estacio vs. Sandiganbayan,
G.R. No. 75362, March 6, 1990, 183 SCRA 12, 24,
299
Art. 13
Par. 7
MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
citing People vs. Canamo, 138 SCRA 141, 145 and People
vs. Hanasan, No. L-25989, Sept. 30, 1969, 29 SCRA 534,
541-542)
Requisite of voluntariness.
For voluntary surrender to be appreciated, the same must be
spontaneous in such a manner that it shows the interest of the accused
to surrender unconditionally to the authorities, either because he
acknowledged his guilt or because he wishes to save them the trouble
and expenses necessarily incurred in his search and capture. (People
vs. Gervacio, No. L-21965, Aug. 30, 1968, 24 SCRA 960, 977, citing
People vs. Sakam, 61 Phil. 27)
Merely requesting a policeman to accompany the accused to
the police headquarters is not equivalent to the requirement that
he "voluntarily surrendered himself to a person in authority or his
agents." The accused must actually surrender his own person to the
authorities, admitting complicity in the crime. His conduct, after the
commission of the crime, must indicate a desire on his part to own
the responsibility for the crime. (People vs. Flores, 21 CAR [2s] 417,
424-425)
Cases of voluntary surrender.
1. The accused, after plunging a bolo into the victim's
chest, ran toward the municipal building. Upon seeing a
patrolman, he immediately threw away his bolo, raised his
two hands, offered no resistance and said to the patrolman
"here is my bolo, I stabbed the victim." There was intent or
desire to surrender voluntarily to the authorities. (People
vs. Tenorio, No. L-15478, March 30, 1962, 4 SCRA 700,
703)
2. After the commission of the crime, the accused fled to a
hotel to hide not from the police authorities but from the
companions of the deceased who pursued him to the hotel
but could not get to him because the door was closed after
the accused had entered. Once in the hotel, the accused
dropped his weapon at the door and when the policemen
came to investigate, he readily admitted ownership of the
weapon and then voluntarily went with them. He was
300
MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
Art. 13
Par. 7
investigated by the fiscal the following day. No warrant
had been issued for his arrest. The accused was granted
the benefit of the mitigating circumstance of voluntary
surrender. (People vs. Dayrit, 108 Phil. 100, 103)
3. Immediately after the shooting, the accused having
all the opportunity to escape, did not do so but instead
called up the police department. When the policemen
went to the scene of the crime to investigate, he voluntarily
approached them and without revealing his identity, told
them that he would help in connection with the case
as he knew the suspect and the latter's motive. When
brought to the police station immediately thereafter as a
possible witness, he confided to the investigators that he
was voluntarily surrendering and also surrendering the
fatal gun used in the shooting of the victim. These acts of
the accused were held strongly indicative of his intent or
desire to surrender voluntarily to the authorities. (People
vs. Benito, No. L-32042, Feb. 13, 1975, 62 SCRA 351,
355)
4. The two accused left the scene of the crime but made
several attempts to surrender to various local officials
which somehow did not materialize for one reason or
another. It was already a week after when they were
finally able to surrender. Voluntary surrender avails. After
committing the crime, the accused defied no law or agent
of the authority, and when they surrendered, they did so
with meekness and repentance. (People vs. Magpantay,
No. L-19133, Nov. 27, 1964, 12 SCRA 389, 392, 393)
5. Tempered justice suggests that appellants be credited
with voluntary surrender in mitigation. That they had no
opportunity to surrender because the peace officers came,
should not be charged against them. For one thing is
certain—they yielded their weapons at the time. Not only
that. They voluntarily went with the peace officers to the
municipal building. These acts, in legal effect, amount to
voluntary surrender. (People vs. Torres, 3 CAR [2s] 43,57,
citing earlier cases)
6. The accused did not offer any resistance nor try to hide
when a policeman ordered him to come down his house.
301
Art. 13
Par. 7
MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
He even brought his bolo used to commit the crime and
voluntarily gave himself up to the authorities before he
could be arrested. These circumstances are sufficient
to consider the mitigating circumstance of voluntary
surrender in his favor. (People vs. Radomes, No. L-68421,
March 20, 1986, 141 SCRA 548, 562)
7. All that the records reveal is that the accused trooped to
the police headquarters to surrender the firearm used in
committing the crime. It is not clear whether or not he also
sought to submit his very person to the authorities. The
accused is given the benefit of the doubt and his arrival
at the police station is considered as an act of surrender.
(People vs. Jereza, G.R. No. 86230, Sept. 18, 1990, 189
SCRA 690, 698-699)
8. Where there is nothing on record to show that the warrant
for the arrest of the accused had actually been served on
him, or that it had been returned unserved for failure of the
server to locate said accused, and there is direct evidence
to show that he voluntarily presented himself to the police
when he was taken into custody. (People vs. Brana, No.
L-29210, Oct. 31, 1969, 30 SCRA 307, 316-317)
Cases not constituting voluntary surrender.
1. The warrant of arrest showed that the accused was in fact
arrested. (El Pueblo contra Conwi, 71 Phil. 595, 597)
2. The accused surrendered only after the warrant of arrest
was served upon him. (People vs. Roldan, No. L-22030,
May 29,1968, 23 SCRA 907, 910)
3. Where the accused was actually arrested by his own admission
or that he yielded because of the warrant of arrest,
there is no voluntary surrender although the police blotter
euphemistically used the word "surrender." (People vs.
Velez, No. L-30038, July 18, 1974, 58 SCRA 21, 30)
4. The accused went into hiding and surrendered only when
they realized that the forces of the law were closing in on
them. (People vs. Mationg, No. L-33488, March 29, 1982,
113 SCRA 167, 178)
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5. Where the accused were asked to surrender by the police
and military authorities but they refused until only much
later when they could no longer do otherwise by force
of circumstances when they knew they were completely
surrounded and there was no chance of escape. Their
surrender was not spontaneous as it was motivated more by
an intent to insure their safety. (People vs. Salvilla, G.R. No.
86163, April 26, 1990, 184 SCRA 671, 678-679; People vs.
Sigayan, No. L-18308, April 30,1966,16 SCRA 834, 844)
6. Where the search for the accused had lasted four (4) years,
which belies the spontaneity of the surrender. (People vs.
De la Cruz, No. L-30059, Dec. 19, 1970, 36 SCRA 452,
455)
7. Where other than the accused's version in court that he
went to a police officer in Dagupan City and asked the
latter to accompany him to Olongapo City after he was
told by someone that his picture was seen posted in the
municipal building, no other evidence was presented to
establish indubitably that he deliberately surrendered to
the police. (People vs. Garcia, No. L-32071, July 9, 1981,
105 SCRA 325, 343)
8. Where the accused only went to the police station to report
that his wife was stabbed by another person and to seek
protection as he feared that the same assailant would also
stab him. (People vs. Trigo, G.R. No. 74515, June 14,1989,
174 SCRA 93, 99)
9. Where the accused went to the PC headquarters not to
surrender but merely to report the incident which does not
evince any desire to own the responsibility for the killing
of the deceased. (People vs. Rogales, No. L-17531, Nov. 30,
1962, 6 SCRA 830, 835)
10. Where the Chief of Police placed the accused under arrest
in his employer's home to which that officer was summoned
and it does not appear that it was the idea of the accused
to send for the police for the purpose of giving himself up.
(People vs. Canoy, 90 Phil. 633, 643)
11. Where the accused accompanied the Chief of Police to the
scene of the crimes and he was not yet charged with, or
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304
suspected of having taken any part in, said crimes, and the
authorities were not looking for him, and would not have
looked for him if he had not been present at the investigation
by the Chief of Police. (People vs. Canoy, 90 Phil. 633,
644)
Where the accused was arrested in his boarding house and
upon being caught, pretended to say that he was on his way
to the municipal building to surrender to the authorities,
for that is not the nature of voluntary surrender that may
serve to mitigate one's liability in contemplation of law.
(People vs. Rubinal, 110 Phil. 119, 127)
Not mitigating when defendant was in fact arrested.
There was no voluntary surrender if the warrant of arrest
showed that the defendant was in fact arrested. (People vs. Conwi,
71 Phil. 595)
But where a person, after committing the offense and having
opportunity to escape, voluntarily waited for the agents of the
authorities and voluntarily gave himself up, he is entitled to the
benefit of this circumstance, even if he was placed under arrest by a
policeman then and there. (People vs. Parana, 64 Phil. 331)
And when the accused helped in carrying his victim to the hospital
where he was disarmed and arrested, it is tantamount to voluntary
surrender. (People vs. Babiera, C.A., 45 O.G., Supp. 5, 311)
The facts of Conwi case, supra, should be distinguished from the
facts of the cases of People vs. Parana and People vs. Babiera, supra,
where the arrest of the offender was after his voluntary surrender
or after his doing an act amounting to a voluntary surrender to the
agent of a person in authority.
The accused who ran to the municipal building after the commission
of the crime had the intention or desire to surrender.
If the accused wanted to run away or escape, he would not have
run to the municipal building. The fact that on seeing a patrolman,
the accused threw away his bolo, raised his two hands, and admitted
having stabbed the injured party, is indicative of his intent or desire
to surrender voluntarily to the authorities. (People vs. Tenorio, G.R.
No. L-15478, March 30, 1962)
MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
Art. 13
Par. 7
The accused who fled and hid himself to avoid reprisals from the
companions of the deceased, but upon meeting a policeman voluntarily
went with him to the jail, is entitled to the benefit of the mitigating
circumstance of voluntary surrender.
Thus, when the accused, after the commission of the crime, fled
to the Imperial Hotel for security purposes, as there was no policeman
around and the companions of the deceased were pursuing him to that
place, and once inside he hid himself there, his going voluntarily to
the jail with the policeman who had gone to the hotel to investigate
the incident, was held to be a mitigating circumstance. (People vs.
Dayrit, G.R. No. L-14388, May 20, 1960)
When the accused surrendered only after the warrant of arrest had
been served upon him, it is not mitigating.
It appears that appellant surrendered only after the warrant
of arrest was served upon him, which cannot be considered as a
"voluntary surrender." (People vs. Roldan, G.R. No. L-22030, May
29,1968)
When the warrant of arrest had not been served or not returned
unserved because the accused cannot be located, the
surrender is mitigating.
While it is true that the warrant for the arrest of the accused
was dated March 7,1967, and the police authorities were able to take
custody of the accused only on March 31,1967, there is nothing in the
record to show that the warrant had actually been served on him, or
that it had been returned unserved for failure of the server to locate
said accused. Upon the other hand, there is direct evidence that the
accused voluntarily presented himself to the police on March 31,
1967. And the fact that it was effected sometime after the warrant of
arrest had been issued does not in the least detract from the voluntary
character of the surrender in the absence of proof to the contrary.
(People vs. Brana, 30 SCRA 308)
The law does not require that the surrender be prior to the
order of arrest.
In People vs. Yeda, 68 Phil. 740 [1939] and People vs. Turalba,
G.R. No. L-29118, Feb. 28, 1974, it was held that when after the
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Surrender and Confession of Guilt
commission of the crime and the issuance of the warrant of arrest,
the accused presented himself in the municipal building to post the
bond for his temporary release, voluntary surrender is mitigating.
The fact that the order of arrest had already been issued is no bar
to the consideration of the circumstance because the law does not
require that the surrender be prior to the order of arrest. (Rivera
vs. Court of Appeals, G.R. No. 125867, May 31, 2000)
"Voluntarily surrendered himself."
After the incident, the accused reported it to the councilor; that
he stayed in the councilor's place for about an hour; and that thereafter
he went to the chief of police to whom he related what had happened
between him and the injured party and surrendered the bolo — not
his person — to said chief of police.
Held: The foregoing facts do not constitute voluntary surrender.
The law requires that the offender must have "voluntarily surrendered
himself to a person in authority or his agents." (People vs. Jose de
Ramos, CA-G.R. No. 15010-R, April 26, 1956)
Surrender of weapons cannot be equated with voluntary
surrender. (People vs. Verges, No. L-36882-84, July 24, 1981, 105
SCRA 744, 756)
Where the accused merely surrendered the gun used in the
killing, without surrendering his own person to the authorities, such
act of the accused does not constitute voluntary surrender. (People
vs. Palo, 101 Phil. 963, 968)
The fact that the accused did not escape or go into hiding after
the commission of the murder and in fact he accompanied the chief of
police to the scene of the crime without however surrendering to him
and admitting complicity in the killing did not amount to voluntary
surrender to the authorities and this circumstance would not be
extenuating in that case. (People vs. Canoy, 90 Phil. 633; People vs.
Rubinal, G.R. No. L-12275, Nov. 29, 1960)
Appellant did not go to the PC headquarters after the shooting to
surrender but merely to report the incident. Indeed, he never evinced
any desire to own the responsibility for the killing of the deceased.
(People vs. Rogales, 6 SCRA 830)
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The surrender must be made to a person in authority or his
agent.
A "person in authority" is one directly vested with jurisdiction,
that is, a public officer who has the power to govern and execute
the laws whether as an individual or as a member of some court or
governmental corporation, board or commission. A barrio captain and
a barangay chairman are also persons in authority. (Art. 152, RPC,
as amended by P.D. No. 299)
An "agent of a person in authority" is a person, who, by direct provision
of the law, or by election or by appointment by competent authority,
is charged with the maintenance of public order and the protection
and security of life and property and any person who comes to the aid of
persons in authority. (Art. 152, as amended by Rep. Act No. 1978)
Voluntary surrender to commanding officer of the accused is
mitigating, because the commanding officer is an agent of a person
in authority.
Voluntary surrender to the chief clerk of a district engineer is not
mitigating, because such chief clerk is neither a person in authority
nor his agent.
An accused who surrendered first to the Justice of the Peace
(now Municipal Court), with whom he posted a bond, and then to the
Constabulary headquarters of the province, is entitled to the mitigation
of voluntary surrender. (People vs. Casalme, No. L-18033, July
26, 1966, 17 SCRA 717, 720-721)
Voluntary surrender does not simply mean non-flight.
Voluntary surrender does not simply mean non-flight. As a
matter of law, it does not matter if the accused never avoided arrest
and never hid or fled. What the law considers as mitigating is the
voluntary surrender of an accused before his arrest, showing either
acknowledgment of his guilt or an intention to save the authorities
from the trouble and expense that his search and capture would require.
(Quial vs. Court of Appeals, No. L-63564, Nov. 28, 1983, 126
SCRA 28, 30; People vs. Radomes, No. L-68421, March 20, 1986,141
SCRA 548, 560)
The fact that the accused did not escape or go into hiding after
the commission of the murder and in fact he accompanied the chief
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Surrender and Confession of Guilt
of police to the scene of the crime without however surrendering to
him and admitting complicity in the killing did not amount to voluntary
surrender to the authorities and this circumstance would not be
extenuating in that case. (People vs. Canoy and People vs. Rubinal,
supra)
Time and place of surrender.
The Revised Penal Code does not make any distinction among
the various moments when the surrender may occur.
Five days after the commission of the crime of homicide and
two days after the issuance of the order for his arrest, the accused
presented himself in the municipal building to post the bond for his
temporary release.
Held: This is a voluntary surrender constituting a mitigating
circumstance. The law does not require that the surrender be prior
to the issuance of the order of arrest. Moreover, the surrender of the
accused to post a bond for his temporary release was in obedience to
the order of arrest and was tantamount to the delivery of his person
to the authorities to answer for the crime for which his arrest was
ordered. (People vs. Yecla, 68 Phil. 740, 741; People vs. Brafia, No.
L-29210, Oct. 31, 1969, 30 SCRA 307, 316-317; People vs. Turalba,
No. L-29118, Feb. 28, 1974, 55 SCRA 697, 704-705)
Note: In these cases, there is nothing in the record to show that
the warrant had actually been served on the accused,
or that it had been returned unserved for failure of the
server to locate the accused. The implication is that if
the accused cannot be located by the server of the warrant,
the ruling should be different.
In the case of People vs. Coronel, G.R. No. L-19091, June 30,1966,
the accused committed robbery with homicide on September 7,1947,
and surrendered on June 2,1954. It was held that the surrender was
voluntary and a mitigating circumstance.
But if the appellants surrendered because, after having been
fugitives from justice for more than 7 years, they found it impossible
to live in hostility and resistance to the authorities, martial law
having been declared, the surrender was not spontaneous. (People
vs. Sabater, 81 SCRA 564)
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Likewise, an accused was held entitled to the mitigating circumstance
of voluntary surrender where it appeared that he posted the
bond for his provisional liberty eighteen days after the commission of
the crime and fourteen and sixteen days, respectively, after the first
and second warrants for his arrest were issued, the court declaring
that the fact that the warrant for his arrest had already been issued
is no bar to the consideration of this mitigating circumstance because
the law does not require that the surrender be prior to the order of
arrest. (People vs. Valera, et al, L-15662, Aug. 30,1962) By parity of
reasoning, therefore, appellant Maximo Diva's voluntary surrender to
the chief of police of the municipality of Poro should be considered to
mitigate his criminal liability because the law does not require him
to surrender to the authorities of the municipality of San Francisco
where the offense was committed. (People vs. Diva, et al., 23 SCRA
332)
In a homicide case where after the killing of the deceased
which took place in Janiuay, Iloilo, the two accused fled, took refuge
in the house of a lawyer, and surrendered to the constabulary
in Iloilo City, after passing three municipalities, it was held that
there was voluntary surrender. (People vs. Cogulio, C.A., 54 O.G.
5516)
The surrender must be by reason of the commission of the
crime for which defendant is prosecuted.
Defendant cannot claim the circumstance of voluntary surrender
because he did not surrender to the authority or its agents by reason
of the commission of the crime for which he was prosecuted, but for
being a Huk who wanted to come within the pale of the law. (People
vs. Semaiiada, etc., G.R. No. L-11361, May 26, 1958)
Thus, if the defendant surrendered as a Huk to take advantage of
the amnesty, but the crime for which he was prosecuted was distinct
and separate from rebellion, his surrender is not mitigating.
Surrender through an intermediary.
The accused surrendered through the mediation of his father
before any warrant of arrest had been issued. His surrender was
appreciated as mitigating. (People vs. De la Cruz, No. L-45485, Sept.
19,1978, 85 SCRA 285, 292)
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Art. 13
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MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
When is surrender voluntary?
A surrender to be voluntary must be spontaneous, showing the
intent of the accused to submit himself unconditionally to the authorities,
either (1) because he acknowledges his guilt, or (2) because he
wishes to save them the trouble and expenses necessarily incurred in
his search and capture. (Quoted in People vs. Lagrana, No. L-68790,
Jan. 23, 1987, 147 SCRA 281, 285)
If none of these two reasons impelled the accused to surrender,
because his surrender was obviously motivated more by an intention
to insure his safety, his arrest being inevitable, the surrender is not
spontaneous and therefore not voluntary. (People vs. Laurel, C.A.,
59 O.G. 7618)
The surrender must be spontaneous.
The word "spontaneous" emphasizes the idea of an inner impulse,
acting without external stimulus. The conduct of the accused, not his
intention alone, after the commission of the offense, determines the
spontaneity of the surrender.
The circumstances surrounding the surrender of Simplicio
Gervacio do not meet this standard, because immediately after the
commission of the robbery-slaying attributed to him and Atanacio
Mocorro, they fled together to the province of Leyte which necessitated
the authorities of Quezon City to go to the place and search
for them. In fact, Simplicio Gervacio surrendered to the Mayor of
Biliran twelve days after the commission of the crime, and only after
Luz \dminda had been discovered in a far away sitio which led to the
arrest of Atanacio Mocorro. (People vs. Gervacio, No. L-21965, August
30, 1968, 24 SCRA 960, 977)
The circumstance that the accused did not resist arrest or struggle
to free himself after he was taken to custody by the authorities
cannot amount to voluntary surrender. (People vs. Siojo, 61 Phil.
307, 318; People vs. Yuman, 61 Phil. 786, 787, 791) And while it is
claimed that the accused intended to surrender, the fact is that he did
not, despite several opportunities to do so, and was in fact arrested.
(People vs. Dimdiman, 106 Phil. 391, 397)
Voluntary surrender cannot be appreciated in favor of an accused
who surrenders only after a warrant of arrest is issued and he finds it
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futile to continue being a fugitive from justice. (People vs. Rodriguez,
No. L-41263, Dec. 15, 1982, 119 SCRA 254, 258)
For voluntary surrender to be appreciated, it is necessary that
the same be spontaneous in such manner that it shows the intent of
the accused to surrender unconditionally to the authorities, either
because he acknowledges his guilt or because he wishes to save
them the trouble and expense necessarily incurred in his search and
capture. (People vs. Lingatong, G.R. No. 34019, Jan. 29, 1990, 181
SCRA 424, 430, citing earlier cases)
The surrender is not spontaneous where the accused took almost
nine months after the issuance of the warrant of arrest against him
before he presented himself to the police authorities. (People vs.
Mabuyo, No. L-29129, May 8, 1975, 63 SCRA 532, 542).
Neither is voluntary surrender spontaneous where the accused
had gone into hiding for 2 1/2 years before surrendering. (People vs.
Ablao, G.R. No. 69184, March 26,1990, 183 SCRA 658, 669).
Intention to surrender, without actually surrendering, is not mitigating.
The mitigating circumstance of voluntary surrender cannot be
appreciated in favor of the accused who claims to have intended to
surrender but did not, despite several opportunities to do so, and was
in fact arrested. (People vs. Dimdiman, supra)
Note: The law requires that the accused must surrender himself.
There is spontaneity even if the surrender is induced by fear of retaliation
by the victim's relatives.
The fact that the accused gave himself up to the police immediately
after the incident was not considered in his favor, because
during the trial, he declared that he did so out of fear of retaliatory
action from the relatives of the deceased. This, according to the trial
Judge, is not the kind of surrender that entitles the accused to the
benefit of voluntary surrender.
Held: That the surrender was induced by his fear of retaliation by
the victim's relatives does not gainsay the spontaneity of the surrender,
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Surrender and Confession of Guilt
nor alter the fact that by giving himself up, this accused saved the State
the time and trouble of searching for him until arrested. (People vs.
Clemente, No. L-23463, Sept. 28, 1967, 21 SCRA 261, 268-269)
When the offender imposed a condition or acted with external stimulus,
his surrender is not voluntary.
There could have been no voluntary surrender because the accused
went into hiding after having committed the crimes and refused
to surrender without having first conferred with the town councilor.
(People vs. Mutya, G.R. Nos. L-l 1255-56, Sept. 30, 1959)
A surrender is not voluntary when forced by circumstances, as
when the culprits "considered it impossible to live in hostility and
resistance to the constituted authorities and their agents in view of
the fact that the said authorities had neither given them rest nor left
them in peace for a moment." (People vs. Sakam, 61 Phil. 27, 34)
When they started negotiations for their surrender, the roads
through which their escape could be attempted were blocked and the
house where they were hiding was surrounded by the Constabulary
forces. They surrendered, because of their belief that their escape was
impossible under the circumstances. The surrender was not voluntary.
(People vs. Timbol, G.R. Nos. L-47471-47473, Aug. 4,1944)
Requisites of plea of guilty.
In order that the plea of guilty may be mitigating, the three
requisites must be present:
1. That the offender spontaneously confessed his guilt;
2. That the confession of guilt was made in open court, that
is, before the competent court that is to try the case; and
3. That the confession of guilt was made prior to the presentation
of evidence for the prosecution. (See People vs.
Crisostomo, No. L-32243, April 15, 1988, 160 SCRA 47,
56, citing earlier cases. Also, People vs. Bueza, G.R. No.
79619, Aug. 20, 1990, 188 SCRA 683, 689)
The plea must be made before trial begins.
The trial on the merits had commenced and the prosecution had
already presented evidence proving the guilt of the accused when he
manifested that he would change his plea of not guilty to a plea of
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guilty. He was properly rearraigned. As ruled in People vs. Kayanan
(83 SCRA 437), a plea of guilty made after arraignment and after trial
had begun does not entitle the accused to have such plea considered
as a mitigating circumstance. (People vs. Lungbos, No. L-57293, June
21,1988,162 SCRA 383,388-389; People vs. Verano, Jr., No. L-45589,
July 28, 1988, 163 SCRA 614, 621)
Plea of guilty on appeal, not mitigating.
Plea of guilty in the Court of First Instance (now RTC) in a case
appealed from the Municipal Court is not mitigating, because the
plea of guilty must be made at the first opportunity, that is, in the
Municipal Court. (People vs. Hermino, 64 Phil. 403, 407-408; People
vs. De la Pena, 66 Phil. 451, 453)
It cannot be properly stated that the appeal taken by the accused
from the Municipal Court to the Court of First Instance again restored
the case to its original state for the reason that the law requires a trial
de novo, because a trial de novo necessarily implies the existence of a
previous trial where evidence was presented by the prosecution.
Philosophy behind the rule.
If an accused, charged with an offense cognizable by the municipal
court, pleads not guilty therein, and on appeal to the court of
first instance, changes his plea to that of guilty upon rearraignment,
he should not be entitled to the mitigating circumstance of confession
of guilt. The philosophy behind this rule is obvious. For the spontaneous
willingness of the accused to admit the commission of the
offense charged, which is rewarded by the mitigating circumstance,
is absent. (People vs. Fortuno, 73 Phil. 597) Indeed, if the rule were
otherwise, an accused, who naturally nourishes the hope of acquittal,
could deliberately plead not guilty in the municipal court, and upon
conviction and on appeal to the court of first instance, plead guilty
just so he can avail himself of the benefit of a mitigating circumstance.
This cannot be countenanced. The accused should not be allowed to
speculate. (People vs. Oandasan, 25 SCRA 277)
Plea of not guilty at the preliminary investigation is no plea
at all.
If an accused is charged with an offense cognizable by the court
of first instance, and pleads not guilty before the municipal court at
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Surrender and Confession of Guilt
its preliminary investigation, and after the elevation of the case to
the court of first instance—the court of competent jurisdiction—he
pleads guilty upon arraignment before this latter court, the plea of
not guilty upon arraignment at the preliminary investigation in the
municipal court is no plea at all. Hence, the accused could claim his
plea of guilty in the court of first instance as mitigating circumstance
pursuant to Article 13(7) of the Revised Penal Code. (People vs.
Oandasan, supra)
The confession of guilt must be made in open court.
The extrajudicial confession made by the accused is not the
voluntary confession which the Code contemplates. Such confession
was made outside of the court. The confession of guilt must be made
in open court. (People vs. Pardo, et al., 79 Phil. 568)
The confession of guilt must be made prior to the presentation of the
evidence for the prosecution.
Plea of guilty after the fiscal had presented evidence is not mitigating
because the third requisite is lacking. (People vs. Co Chang,
60 Phil. 293)
The benefit of plea of guilty is not deserved by the accused who
submits to the law only after the presentation of some evidence for
the prosecution, believing that in the end the trial will result in his
conviction by virtue thereof. (People vs. De la Cruz, 63 Phil. 874;
People vs. Lambino, 103 Phil. 504)
It is not necessary that all the evidence of the prosecution have
been presented. Even if the first witness presented by the prosecution
had not finished testifying during the direct examination when the
accused withdrew his former plea of "not guilty" and substituted it
with the plea of "guilty," the plea of guilty is not mitigating. (People
vs. Lambino, 103 Phil. 504)
Withdrawal of plea of not guilty and pleading guilty before
presentation of evidence by prosecution is still mitigating.
All that the law requires is voluntary plea of guilty prior to the
presentation of the evidence by the prosecution. Thus, even if during
the arraignment, the accused pleaded not guilty, he is entitled
to this mitigating circumstance as long as he withdraws his plea of
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Art. 13
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not guilty and thereafter pleads guilty to the charge before the fiscal
could present his evidence.
The change of plea should be made at the first opportunity.
But in a case where the accused committed the crime on March
22,1956, and when arraigned on May 14,1956, he pleaded not guilty,
and it was only on August 11, 1957, or about 1 year, 3 months and
7 days that he felt contrite and repentant by changing his former
plea of not guilty to that of guilty, his plea of guilty was obviously
not spontaneous, and was apparently done not because of his sincere
desire to repent but because of his fear of eventual conviction. If it
was his desire to repent and reform, he could have pleaded guilty at
the very first opportunity when his arraignment was first set. (People
vs. Quesada, 58 O.G. 6112)
A conditional plea of guilty is not a mitigating circumstance.
The plea of guilty was conditioned upon the allegation that the
killing was done when the appellant surprised his wife in the act of
sexual intercourse with the deceased Moro Lario. We already pointed
out that "an accused may not enter a conditional plea of guilty in
the sense that he admits his guilt provided that a certain penalty be
imposed upon him." We are, therefore, constrained to hold that the
appellant in this case must be considered as having entered a plea
of not guilty. (People vs. Moro Sabilul, 89 Phil. 283, 285)
Death penalty changed to life imprisonment because of plea
of guilty, even if done during the presentation of evidence.
While the accused entered a plea of guilty, he did it only during
the continuation of the trial so that this circumstance may not,
under the law, be considered to mitigate the liability of the accused.
However, such an admission of guilt indicates his submission to the
law and a moral disposition on his part to reform, hence, the death
penalty imposed is changed to life imprisonment. (People vs. Coronel,
No. L-19091, June 30, 1966, 17 SCRA 509, 513)
Plea of guilty to amended information.
Trial had already begun on the original information for murder
and frustrated murder. However, in view of the willingness of the
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MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
accused to plead guilty for a lesser offense, the prosecution, with
leave of court, amended said information to make it one for homicide
and frustrated homicide, and the accused pleaded guilty thereto.
That was an entirely new information and no evidence was presented
in connection with the charges made therein before the accused
entered his plea of guilty. The accused is entitled to the mitigating
circumstance of plea of guilty. (People vs. Ortiz, No. L-19585, Nov.
29, 1965, 15 SCRA 352, 354)
Plea of guilty to lesser offense than that charged, not mitigating.
Plea of guilty to a lesser offense is not a mitigating circumstance,
because to be voluntary, the plea of guilty must be to the offense
charged. (People vs. Noble, 77 Phil. 93)
For voluntary confession to be appreciated as an extenuating
circumstance, the same must not only be made unconditionally but
the accused must admit to the offense charged, i.e., robbery with
homicide in the present case, and not to either robbery or homicide
only. Hence, if the voluntary confession is conditional or qualified, it
is not mitigating. (People vs. Gano, et al., G.R. No. 134373, February
28, 2001)
But when the defendant pleaded guilty, only manifesting that
evident premeditation alleged in the information did not attend the
commission of the crime, and when the court required the presentation
of evidence on premeditation the prosecution failed to prove it, the plea
of guilty is mitigating, because although the confession was qualified
and introduction of evidence became necessary, the qualification did
not deny the defendant's guilt and, what is more, was subsequently
justified. It was not the defendant's fault that aggravating
circumstances were erroneously alleged in the information. (People
vs. Yturriaga, 86 Phil. 534, 539; People vs. Ong, No. L-34497, Jan.
30, 1975, 62 SCRA 174, 216)
Plea of guilty to the offense charged in the amended information,
lesser than that charged in the original information, is
mitigating.
Charged with double murder, the accused moved the Court to
permit him to withdraw his former plea of not guilty to be substituted
316
MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
Art. 13
Par. 7
with that of guilty to the lesser crime of double homicide. The prosecution
moved to amend the information so as to change the crime
from double murder to double homicide. Both motions were granted
by the court.
Held: The plea of guilty to the lesser offense charged in the
amended information is mitigating. (People vs. Intal, 101 Phil. 306,
307-308)
When the accused is charged with a grave offense, the court should
take his testimony in spite of his plea of guilty.
The trial court should "determine whether the accused really and
truly comprehended the meaning, full significance and consequences
of his plea and that the same was voluntarily and intelligently entered
or given by the accused." (People vs. Lacson, No. L-33060, Feb. 25,
1974, 55 SCRA 589, 593)
Because there is no law prohibiting the taking of testimony after
a plea of guilty, where a grave offense is charged, this Court has
deemed such taking of testimony the prudent and proper course to
follow for the purpose of establishing the guilt and the precise degree
of culpability of the defendant. (People vs. Saligan, No. L-35792, Nov.
29, 1973, 54 SCRA 190, 195; People vs. Domingo, Nos. L-30464-5,
Jan. 21,1974, 55 SCRA 237, 243-245)
Mandatory presentation of evidence in plea of guilty to capital
offense.
The Revised Rules of Criminal Procedure (Rule 116, Sec. 3)
provides that where the accused pleads guilty to a capital offense, that
court shall conduct a searching inquiry into the voluntariness and
full comprehension of the consequences of his plea and shall require
the prosecution to prove his guilt and the precise degree of culpability.
The accused may present evidence in his behalf.
Searching Inquiry.
The guidelines in the conduct of a searching inquiry are as follows:
(1) Ascertain from the accused himself (a) how he was brought
into the custody of the law; (b) whether he had the assistance of a
competent counsel during the custodial and preliminary investiga-
317
Art. 13
Par. 7
MITIGATING CIRCUMSTANCES
Surrender and Confession of Guilt
tions; and (c) under what conditions he was detained and interrogated
during the investigations. This is intended to rule out the possibility
that the accused has been coerced or placed under a state of duress
either by actual threats of physical harm coming from malevolent
quarters or simply because of the judge's intimidating robes.
(2) Ask the defense counsel a series of questions as to whether
he had conferred with, and completely explained to, the accused the
meaning and consequences of a plea of guilty.
(3) Elicit information about the personality profile of the
accused, such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his capacity
to give a free and informed plea of guilty.
(4) Inform the accused of the exact length of imprisonment or
nature of the penalty under the law and the certainty that he will serve
such sentence. For not infrequently, an accused pleads guilty in the
hope of a lenient treatment or upon bad advice or because of promises
of the authorities or parties of a lighter penalty should he admit guilt
or express remorse. It is the duty of the judge to ensure that the
accused does not labor under these mistaken impressions because a
plea of guilty carries with it not only the admission of authorship of
the crime proper but also of the aggravating circumstances attending
it, that increase punishment.
(5) Inquire if the accused knows the crime with which he is
charged and to fully explain to him the elements of the crime which
is the basis of his indictment. Failure of the court to do so would
constitute a violation of his fundamental right to be informed of the
precise nature of the accusation against him and a denial of his right
to due process.
(6) All questions posed to the accused should be in a language
known and understood by the latter.
(7) The trial judge must satisfy himself that the accused, in
pleading guilty, is truly guilty. The accused must be required to narrate
the tragedy or reenact the crime or furnish its missing details.
(People vs. Gumimba, G.R. No. 174056, Feb. 27, 2007)
Reasons why plea of guilty is mitigating.
It is an act of repentance and respect for the law; it indicates a
318
MITIGATING CIRCUMSTANCES
Physical Defect
Art. 13
Par. 8
moral disposition in the accused, favorable to his reform. (People vs.
De la Cruz, 63 Phil. 874, 876)
Basis of paragraph 7.
The basis of the mitigating circumstances of voluntary surrender
and plea of guilty is the lesser perversity of the offender.
Plea of guilty is not mitigating in culpable felonies and in
crimes punished by special laws.
Art. 365, par. 5, of the Revised Penal Code, which prescribes
the penalties for culpable felonies, provides that "in the imposition
of these penalties, the courts shall exercise their sound discretion,
without regard to the rules prescribed in Art. 64." This last mentioned
article states, among other rules, that when there is a mitigating
circumstance without any aggravating circumstance, the penalty to
be imposed is the minimum period of the divisible penalty. (People
vs. Agito, 103 Phil. 526, 529)
When the crime is punished by a special law, the court shall also
exercise its sound discretion, as Art. 64 is not applicable. The penalty
prescribed by special laws is usually not divisible into three periods.
Art. 64 is applicable only when the penalty has three periods.
Par. 8. — That the offender is deaf and dumb, blind or otherwise
suffering from some physical defect which thus restricts
his means of action, defense, or communication with
his fellow beings.
Deaf and dumb.
In a criminal case charging robbery in an inhabited house, the
accused is deaf and dumb. Held: He is entitled to the mitigating
circumstance of being deaf and dumb under Article 13, paragraph 8.
(People vs. Nazario, 97 Phil. 990)
Physical defect must restrict means of action, defense, or
communication with fellow beings.
Physical defect referred to in this paragraph is such as being
armless, cripple, or a stutterer, whereby his means to act, defend
319
Art. 13
Par. 9
MITIGATING CIRCUMSTANCES
Illness of the Offender
himself or communicate with his fellow beings are limited. (Albert)
Question: Does this paragraph apply when the deaf-mute or the
blind is educated?
This paragraph does not distinguish between educated and
uneducated deaf-mute or blind persons.
The Code considers them as being on equal footing.
Basis of paragraph 8.
Paragraph 8 of Art. 13 considers the fact that one suffering
from physical defect, which restricts one's means of action, defense,
or communication with one's fellow beings, does not have complete
freedom of action and, therefore, there is a diminution of that element
of voluntariness.
Par. 9. — Such illness of the offender as would diminish the
exercise of the will-power of the offender without
however depriving him of consciousness of his acts.
Requisites:
1. That the illness of the offender must diminish the exercise
of his will-power.
2. That such illness should not deprive the offender of consciousness
of his acts.
When the offender completely lost the exercise of will-power,
it may be an exempting circumstance.
When a person becomes affected either by dementia praecox or
by manic depressive psychosis, during the period of excitement, he
has no control whatsoever of his acts. (Opinion of Dr. Elias Domingo,
cited in the case of People vs. Bonoan, 64 Phil. 95)
In such case, the person affected, acted upon an irresistible
homicidal impulse.
In the Bonoan case, the Supreme Court found the accused demented
at the time he perpetrated the crime of murder arid acquitted
the accused.
320
MITIGATING CIRCUMSTANCES
Illness of the Offender
Art. 13
Par. 9
Does this circumstance include illness of the mind?
Question: Does this paragraph refer to the mental condition
more or less disturbed?
It is said that the foregoing legal provision refers only to diseases
of pathological state that trouble the conscience or will. (Albert)
Thus, this paragraph was applied to a mother who, under the
influence of a puerperal fever, killed her child the day following her
delivery. (Dec. Sup. Ct. Spain, Sept. 28, 1897)
But in the case of People vs. Francisco, 78 Phil. 694, it was held
that this paragraph applies to defendant who committed the crime
while suffering from some illness (of the body, the mind, the nerves,
or the moral faculty).
Note that in accordance with the ruling in the above-mentioned
case, illness of the mind is included. It would seem that a diseased
mind, not amounting to insanity, may give place to mitigation.
Illness of the offender considered mitigating.
1. The mistaken belief of the accused that the killing of a witch
was for the public good may be considered a mitigating
circumstance for the reason that those who have obsession
that witches are to be eliminated are in the same condition
as one who, attacked with a morbid infirmity but still
retaining consciousness of his acts, does not have real
control over his will. (People vs. Balneg, et al., 79 Phil.
805)
2. Example of illness of the nerves or moral faculty.
"Although she is mentally sane, we, however, are
inclined to extend our sympathy to the appellant because
of her misfortunes and weak character. According to the
report she is suffering from a mild behaviour disorder as
a consequence of the illness she had in early life. We are
willing to regard this as a mitigating circumstance under
Art. 13, Revised Penal Code, either in paragraph 9 or in
paragraph 10." (People vs. Amit, 82 Phil. 820)
3. One who was suffering from acute neurosis which made
him ill-tempered and easily angered is entitled to this
321
Art. 13
Par. 10
MITIGATING CIRCUMSTANCES
Similar and Analogous Circumstances
mitigating circumstance, because such illness diminished
his exercise of will power. (People vs. Carpenter, C.A., G.R.
No. 4168, April 22, 1940)
4. The fact that the accused is feebleminded warrants the
finding in his favor of the mitigating circumstance either
under paragraph 8 or under paragraph 9 of Art. 13. (People
vs. Formigones, 87 Phil. 658)
5. The evidence of accused-appellant shows that while there
was some impairment of his mental faculties, since he was
shown to suffer from the chronic mental disease called
schizo-affective disorder or psychosis, such impairment
was not so complete as to deprive him of his intelligence or
the consciousness of his acts. The schizo-affective disorder
or psychosis of accused-appellant may be classified as an
illness which diminishes the exercise of his will-power but
without depriving him of the consciousness of his acts. He
may thus be credited with this mitigating circumstance but
will not exempt him from his criminal liability. (People vs.
Antonio, Jr., G.R. No. 144266, Nov. 27, 2002)
Basis of paragraph 9.
The circumstance in paragraph 9 of Art. 13 is mitigating because
there is a diminution of intelligence and intent.
Par. 10. — And, finally, any other circumstance of a similar
nature and analogous to those abovementioned.
Must be of similar nature and analogous to those mentioned
in paragraphs 1 to 9 of Art. 13.
This paragraph authorizes the court to consider in favor of the
accused "any other circumstance of a similar nature and analogous
to those mentioned" in paragraphs 1 to 9 of Art. 13.
Over 60 years old with failing sight, similar to over 70 years
of age mentioned in paragraph 2.
The fact that the defendant was over 60 years old and with failing
sight, is analogous to circumstance No. 2 of Art. 13, as similar to
322
MITIGATING CIRCUMSTANCES
Similar and Analogous Circumstances
Art. 13
Par. 10
the case of one over 70 years of age. (People vs. Reantillo and Ruiz,
C.A., G.R. No. 301, July 27, 1938)
Outraged feeling of owner of animal taken for ransom analogous
to vindication of a grave offense.
The accused is entitled to the mitigating circumstance of
analogous to, if not the same as, vindication of a grave offense
committed by the deceased where the latter took away the carabao
of the accused and held it for ransom, and thereafter failed to fulfill
his promise to pay its value after the carabao had died. (People vs.
Monaga, No. L-38528, Nov. 19, 1982,118 SCRA 466, 476)
Outraged feeling of creditor, similar to passion and obfuscation
mentioned in paragraph 6.
A person who killed his debtor who had tried to escape and
refused to pay his debt is entitled to mitigating circumstance similar to
passion and obfuscation. (People vs. Merenillo, C.A., 36 O.G. 2283)
Impulse of jealous feeling, similar to passion and obfuscation.
The fact that the accused committed slander by charging the
offended party with being the concubine of the husband of the accused
under the impulse of a jealous feeling apparently justified, though later
discovered to be unfounded, because the complainant, as verified by
physical examination, was a virgin, may be taken, under Article 13,
paragraph 10, of the Revised Penal Code, as a mitigating circumstance
similar to passion and obfuscation. (People vs. Ubengen, C.A., 36 O.G.
763)
It is not difficult to see that Idloy's boxing appellant during a dance
and in the presence of so many people, and he, an ex-soldier and exmember
of a military organization and unit, well-known and respected,
undoubtedly produced rancour in the breast of Libria who must have felt
deeply insulted; and to vindicate himself and appease his self-respect, he
committed the crime. The mitigation may well be found under paragraph
10 of the same article. (People vs. Libria, 95 Phil. 389)
Manifestations of Battered Wife Syndrome, analogous to an
illness that diminishes the exercise of will power.
The cyclical nature and the severity of the violence inflicted upon
appellant resulted in "cumulative provocation which broke down her
323
Art. 13
Par. 10
MITIGATING CIRCUMSTANCES
Similar and Analogous Circumstances
psychological resistance and natural self-control," "psychological paralysis,"
and "difficulty in concentrating or impairment of memory."
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however, depriving her
of consciousness of her acts. There was, thus, a resulting diminution of
her freedom of action, intelligence or intent. Pursuant to paragraphs
9 and 10 of Article 13 of the Revised Penal Code, this circumstance
should be taken in her favor and considered as a mitigating factor.
(People vs. Genosa, G.R. No. 135981, Jan. 14, 2004)
Esprit de corps, similar to passion and obfuscation.
Mass psychology and appeal to esprit de corps is similar to
passion or obfuscation. In this case, many of the soldiers who took
part in the killing of the deceased responded to the call and appeal
of their lieutenant who urged them to avenge the outrage committed
by the deceased who had summarily ejected certain soldiers from the
dance hall. They considered the act of the deceased a grave insult
against their organization. (People vs. Villamora, 86 Phil. 287)
Voluntary restitution of stolen property, similar to voluntary
surrender mentioned in paragraph 7.
On the other hand, voluntary restitution of the property stolen
by the accused or immediately reimbursing the amount malversed
(People vs. Luntao, C.A., 50 O.G. 1182) is a mitigating circumstance
as analogous to voluntary surrender.
The act of testifying for the prosecution, without previous discharge,
by Lorenzo Soberano (one of the accused) should be considered
in his favor as a mitigating circumstance analogous to a plea of guilty.
(People vs. Navasca, 76 SCRA 72)
Extreme poverty and necessity, similar to incomplete justification
based on state of necessity.
The accused, on account of extreme poverty and of the economic
difficulties then prevailing, was forced to pilfer two sacks of paper
valued at f*10.00 from the Customhouse. He sold the two sacks of
paper for r*2.50. Held: The right to life is more sacred than a mere
property right. That is not to encourage or even countenance theft,
324
MITIGATING CIRCUMSTANCES Art. 13
Similar and Analogous Circumstances Par. 10
but merely to dull somewhat the keen and pain-producing edges
of the stark realities of life. (People vs. Macbul, 74 Phil. 436, 438-
439)
State of necessity is a justifying circumstance under Art. 11,
paragraph 4. Incomplete justification is a mitigating circumstance
under paragraph 1 of Article 13.
Extreme poverty may mitigate a crime against property, such as
theft, but not a crime of violence such as murder. (People vs. Agustin,
No. L-18368, March 31,1966, 16 SCRA 467, 474-475)
But it is not mitigating where the accused had impoverished
himself and lost his gainful occupation by committing crimes and
not driven to crime due to want and poverty. (People vs. Pujinio, No.
L-21690, April 29, 1969, 27 SCRA 1185,1189-1190)
Testifying for the prosecution, analogous to plea of guilty.
The act of the accused of testifying for the prosecution, without
previous discharge, is a mitigating circumstance analogous to a plea
of guilty. (People vs. Navasca, No. L-28107, March 15,1977, 76 SCRA
70, 81)
Killing the wrong man is not mitigating.
Neither do we believe that the fact that he made a mistake in
killing the wrong man should be considered as a mitigating circumstance.
(People vs. Gona, 54 Phil. 605, 606-607)
Not analogous mitigating circumstance.
In parricide, the fact that the husband of the accused was
unworthy or was a rascal and a bully and was bad (People vs. Canja,
86 Phil. 518, 521), or that the victim was a bad or quarrelsome
person (People vs. Fajardo, C.A., 36 O.G. 2256) is not a circumstance
of a similar nature and analogous to any of those mentioned in the
preceding paragraphs of Art. 13.
The accused, who was charged with the crime of falsification,
pleaded guilty and invoked as mitigating circumstance the lack
of irreparable material damage. Held: This is not recognized as a
mitigating circumstance in the Revised Penal Code. Neither is it
among those which may be considered as similar in nature and
325
Art. 13 MITIGATING CIRCUMSTANCES
Personal Nature
analogous to those expressly prescribed as mitigating circumstances.
(People vs. Dy Pol, 64 Phil. 563, 565)
Not resisting arrest, not analogous to voluntary surrender.
Yielding to arrest without the slightest attempt to resist is not
analogous to voluntary surrender. (People vs. Rabuya, No. L-30518,
Nov. 7, 1979, 94 SCRA 123, 138)
The condition of running amuck is not mitigating.
The Revised Penal Code enumerates the circumstances which
mitigate criminal liability, and the condition of running amuck is not
one of them, or one by analogy. The defense contended that running
amuck is a cult among the Moros that is age-old and deeply rooted.
Insofar as they are applicable, mitigating circumstances must be
applied alike to all criminals be they Christians, Moros or Pagans.
(People vs. Salazar, 105 Phil. 1058)
Mitigating circumstances which are personal to the offenders.
Mitigating circumstances which arise (1) from the moral
attributes of the offender, or (2) from his private relations with the
offended party, or (3) from any other personal cause, shall only serve
to mitigate the liability of the principals, accomplices, and accessories
as to whom such circumstances are attendant. (Art. 62, par. 3)
Mitigating circumstances which arise from the moral attributes of
the offender.
A and B killed C, A acting under an impulse which produced
obfuscation. The circumstance of obfuscation arose from the moral
attribute of A and it shall mitigate the liability of A only. It shall not
mitigate the liability of B.
Mitigating circumstances which arise from the private relations of the
offender with the offended party.
A, son of B, committed robbery against the latter, while C, a
stranger, bought the property taken by A from B, knowing that the
property was the effect of the crime of robbery. The circumstance
of relationship (Art. 15) arose from the private relation of A with B
and it shall mitigate the liability of A only. It shall not mitigate the
liability of C, an accessory. (Art. 19)
326
AGGRAVATING CIRCUMSTANCES Art. 13
Definition
Mitigating circumstances which arise from any other personal cause.
A, 14 years old and acting with discernment, inflicted serious
physical injuries on C. B, seeing what A had done to C, kicked the
latter, thereby concurring in the criminal purpose of A and cooperating
with him by simultaneous act. (Art. 18) The circumstance of minority
arose from other personal cause and it shall mitigate the liability of
A only. It shall not mitigate the liability of B, an accomplice.
Note: It seems that all mitigating circumstances are personal
to the offenders.
Circumstances which are neither exempting nor mitigating.
1. Mistake in the blow or aberratio ictus, for under Art. 48, there
is a complex crime committed. The penalty is even higher.
2. Mistake in the identity of the victim, for under Art. 4, par.
1, the accused is criminally liable even if the wrong done
is different from that which is intended. See Art. 49 as to
its effect on the penalty.
3. Entrapment of the accused.
4. The accused is over 18 years of age. If the offender is over
18 years old, his age is neither exempting nor mitigating.
(People vs. Marasigan, 70 Phil. 583)
5. Performance of righteous action.
The performance of righteous action, no matter how
meritorious it may be, is not justifying, exempting, or
mitigating circumstance in the commission of wrongs, and
although the accused had saved the lives of a thousand
and one persons, if he caused the killing of a single human
being, he is, nonetheless, criminally liable. (People vs.
Victoria, 78 Phil. 122)
IV. Aggravating Circumstances.
1. Definition
Aggravating circumstances are those which, if
attendant in the commission of the crime, serve to increase
327
AGGRAVATING CIRCUMSTANCES
Basis and Kinds
the penalty without, however, exceeding the maximum of
the penalty provided by law for the offense.
Basis
They are based on the greater perversity of the offender
manifested in the commission of the felony as shown by:
(1) the motivating power itself, (2) the place of commission,
(3) the means and ways employed, (4) the time, or (5) the
personal circumstances of the offender, or of the offended
party.
Four kinds of aggravating circumstances.
1. Generic — Those that can generally apply to all crimes.
Example — Dwelling, nighttime, or recidivism.
In Art. 14, the circumstances in paragraphs Nos. 1,
2, 3 (dwelling), 4, 5, 6, 9 , 1 0 , 1 4 , 1 8 , 1 9 , and 20, except "by
means of motor vehicles," are generic aggravating circumstances.
2. Specific — Those that apply only to particular crimes.
Example — Ignominy in crimes against chastity or
cruelty and treachery in crimes against persons.
In Art. 14, the circumstances in paragraphs Nos. 3
(except dwelling), 15,16,17 and 21 are specific aggravating
circumstances.
3. Qualifying — Those that change the nature of the
crime.
Example — Alevosia (treachery) or evident premeditation
qualifies the killing of a person to murder.
Art. 248 enumerates the qualifying aggravating
circumstances which qualify the killing of person to murder.
4. Inherent — Those that must of necessity accompany the
commission of the crime. (Art. 62, par. 2)
Example — Evident premeditation is inherent in
robbery, theft, estafa, adultery and concubinage.
Art. 13
2.
328
AGGRAVATING CIRCUMSTANCES Art. 13
Distinctions Between Qualifying and Generic
Qualifying aggravating circumstance distinguished from
generic aggravating circumstance.
1. The effect of a generic aggravating circumstance, not offset by
any mitigating circumstance, is to increase the penalty which
should be imposed upon the accused to the maximum period,
but without exceeding the limit prescribed by law; while that of
a qualifying circumstance is not only to give the crime its proper
and exclusive name but also to place the author thereof in such
a situation as to deserve no other penalty than that specially
prescribed by law for said crime. (People vs. Bayot, 64 Phil. 269,
273)
2. A qualifying aggravating circumstance cannot be offset by a
mitigating circumstance; a generic aggravating circumstance
may be compensated by a mitigating circumstance.
3. A qualifying aggravating circumstance to be such must be alleged
in the information. If it is not alleged, it is a generic aggravating
circumstance only.
Aggravating circumstance not alleged.
An aggravating circumstance, even if not alleged in the information,
may be proved over the objection of the defense. (People vs.
Gabitanan, C.A., 43 O.G. 3209; People vs. Martinez Godinez, 106 Phil.
606-607) This is true only as regards a generic aggravating circumstance.
As regards a qualifying aggravating circumstance, the same
must be alleged in the information because it is an integral part of
the offense.
Generic aggravating circumstances, even if not alleged in the
information, may be proven during the trial over the objection of the
defense and may be appreciated in imposing the sentence. Such evidence
merely forms part of the proof of the actual commission of the
offense and does not violate the constitutional right of the accused
to be informed of the nature and cause of accusation against him.
(People vs. Ang, 139 SCRA 115, 121, L-62833, Oct. 8, 1985, citing
earlier cases)
Where, in an information for simple theft, the qualifying circumstance
of grave abuse of confidence has not been alleged, said circumstance
cannot qualify the crime committed but must be regarded
329
Art. 13 AGGRAVATING CIRCUMSTANCES
Effect and Penalty
only as a generic aggravating circumstance. (People vs. Abella, C.A.,
45 O.G. 1802)
If not alleged in the information, treachery is only generic aggravating
circumstance.
What is not clear to us is, why the prosecuting attorney did not
in this case charge the crime of murder, instead of mere homicide.
Although this circumstance of treachery is proven, inasmuch as it
was not expressly alleged in the information, it may be used only as
an aggravating circumstance but not to qualify the killing as murder.
(People vs. Alcantara, C.A., 45 O.G. 3451; People vs. Jovellano, No.
L-32421, March 27, 1974, 56 SCRA 156, 163)
Treachery is merely a generic aggravating circumstance
when not alleged in the information but just proven at the trial.
(People vs. Estillore, No. L-68459, March 4, 1986, 141 SCRA 456,
461; People vs. Cantre, G.R. No. 70743, June 4, 1990, 186 SCRA
76, 79)
Aggravating circumstances which do not have the effect of
increasing the penalty.
1. Aggravating circumstances (a) which in themselves constitute a
crime specially punishable by law, or (b) which are included by
the law in denning a crime and prescribing the penalty therefor
shall not be taken into account for the purpose of increasing the
penalty. (Art. 62, par. 1)
Examples:
a. "That the crime be committed by means of xxx fire, x x
x explosion" (Art. 14, par. 12) is in itself a crime of arson
(Art. 321) or crime involving destruction. (Art. 324) It is
not to be considered to increase the penalty for the crime
of arson or for the crime involving destruction.
b. "That the act x x x be committed in the dwelling of the
offended party" (Art. 14, par. 3) or "that the crime be committed
after an unlawful entry" (Art. 14, par. 18), or "that
as a means to the commission of a crime a wall, roof, floor,
door, or window be broken (Art. 14, par. 19) is included by
Art. 299 in denning robbery in an inhabited house. It shall
330
AGGRAVATING CIRCUMSTANCES Art. 13
Application
not be taken into account for the purpose of increasing the
penalty for that kind of robbery.
2. The same rule shall apply with respect to any aggravating
circumstance inherent in the crime to such a degree that it must
of necessity accompany the commission thereof. (Art. 62, par. 2)
Examples:
a. Evident premeditation is inherent in theft, robbery, estafa,
adultery and concubinage.
b. Taking advantage of public position is inherent in crimes
where the offenders, who are public officers, committed the
crime in the exercise of their functions, such as in bribery,
malversation, etc.
Aggravating circumstances which are personal to the offenders.
Aggravating circumstances which arise: (a) from the moral
attributes of the offender, or (b) from his private relations with the
offended party, or (c) from any other personal cause, shall only serve to
aggravate the liability of the principals, accomplices, and accessories
as to whom such circumstances are attendant. (Art. 62, par. 3)
Examples:
1. A, with evident premeditation, gave B Pl.OOO to kill C.
B immediately killed C. Evident premeditation is an
aggravating circumstance which arises from the moral
attribute of A. It shall serve to aggravate only the liability
of A, but not that of B.
2. A, stepson of B, killed the latter. C, knowing that A killed B
without justification, buried the dead body of B to prevent
the discovery of the crime. The private relation of A with B
shall serve to aggravate only the liability of A. It shall not
serve to aggravate the liability of C, the accessory. (Art.
19, par. 2)
3. A, who was previously convicted by final judgment of theft
and served sentence therefor, and B committed robbery.
Both were prosecuted and found guilty after trial. Upon
his conviction for robbery, A was a recidivist. Recidivism
331
Art. 13 AGGRAVATING CIRCUMSTANCES
Aggravating Circumstances Not Presumed
is an aggravating circumstance which arises from personal
cause. It shall serve to aggravate only the liability of A,
but not that of B.
Aggravating circumstances which depend for their application
upon the knowledge of the offenders.
The circumstances which consist (1) in the material execution
of the act, or (2) in the means employed to accomplish it, shall serve
to aggravate the liability of those persons only who had knowledge
of them at the time of the execution of the act or their cooperation
therein. (Art. 62, par. 4)
Illustrations:
1. In his house, A ordered B to kill C. A and B did not talk
about the manner C would be killed. B left the house of
A and looked for C. B found C and killed the latter with
treachery. (Art. 14, par. 16) The aggravating circumstance
of treachery consists in the material execution of the
act. Since A had no knowledge of it, treachery shall only
aggravate the liability of B.
2. A ordered B and C to kill D, instructing them to wait
until nighttime so that the crime could be committed with
impunity. B and C killed D at nighttime. Although A did
not take direct part in the commission of the crime, the
aggravating circumstance of nighttime shall also aggravate
his liability, because he had knowledge of it at the time of
the execution of the act by B and C.
Aggravating circumstances not presumed.
An aggravating circumstance should be proved as fully as the
crime itself in order to increase the penalty. (People vs. Barrios, No.
L-34785, July 30,1979,92 SCRA 189,196, citing People vs. Marcina,
77 SCRA 238, 246; People vs. Almario, G.R. No. 69374, March 16,
1989, 171 SCRA 291, 302)
332
Chapter Four
CIRCUMSTANCES WHICH AGGRAVATE
CRIMINAL LIABILITY
Art. 14. Aggravating circumstances. — The following are
a g g r a v a t i n g circumstances:
1. That advantage be t a k e n by t h e offender o f h i s public
p o s i t i o n .
2. That t h e c r i m e b e c o m m i t t e d i n contempt o f o r w i th
i n s u l t t o t h e p u b l i c a u t h o r i t i e s.
3. That t h e act b e committed w i t h i n s u l t o r i n disregard
of t h e r e s p e c t d u e t h e offended party on account of h i s rank,
age, or sex, or t h a t i t be c o m m i t t e d in t h e d w e l l i n g of t h e offended
party, i f t h e l a t t e r h a s not g i v e n provocation.
4. That t h e act b e c o m m i t t e d w i t h abuse of confidence
or o b v i o u s ungratefulness.
5 . That t h e c r i m e be c o m m i t t e d i n t h e p a l a c e of
t h e Chief E x e c u t i v e , or i n h i s p r e s e n c e , or w h e r e public
a u t h o r i t i e s a r e e n g a g e d i n t h e d i s c h a r g e of t h e i r d u t i e s or in
a p l a c e d e d i c a t e d to r e l i g i o u s worship.
6. That t h e crime be committed in t h e n i g h t t i m e or in
an u n i n h a b i t e d place, or by a band, whenever s u c h circums
t a n c e s may f a c i l i t a t e the commission of t h e offense.
Whenever more t h a n three armed malefactors shall have
a c t e d together in the commission of an offense, it shall be
deemed t o have b e e n committed by a band.
7. That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemic, or other
calamity or misfortune.
8. That the crime be committed w i t h the aid of armed
men or persons w h o insure or afford impunity.
333
Art. 14 AGGRAVATING CIRCUMSTANCES
Codal Provisions
334
9. That the accused is a recidivist.
A recidivist is one who, at the time of h i s trial for one
crime, shall have b e e n previously convicted by final judgment
of another crime embraced in t h e same t i t l e of t h i s Code.
10. That t h e offender h a s b e e n previously p u n i s h e d for
an offense t o w h i c h t h e l aw a t t a c h e s an equal or greater penalty
or for two or more crimes to w h i c h i t attaches a l i g h t er
penalty.
11. That the crime be committed in c o n s i d e r a t i o n of a
price, reward, or promise.
12. That the crime be committed b y means of inundation,
fire, poison, explosion, stranding of a vessel or intentional
damage thereto, derailment of a locomotive, or by t h e u s e of
any other artifice i n v o l v i n g great w a s t e a n d ruin.
13. That t h e act be committed w i t h e v i d e n t premeditation.
14. That craft, fraud, or d i s g u i s e be employed.
15. That advantage be t a k e n of s u p e r i o r strength, or
means b e employed t o w e a k e n t h e defense.
16. That the act be committed w i t h treachery (alevosia).
There i s t r e a c h e r y w h e n t h e offender commits a n y o f t h e
crimes against t h e person, employing means, methods o r forms
i n t h e e x e c u t i o n thereof w h i c h t e n d d i r e c t l y a n d s p e c i a l l y to
insure i t s e x e c u t i o n , w i t h o u t r i sk t o himself a r i s i n g f r om t he
defense w h i c h t h e offended party might make.
17. That means be employed or c i r c u m s t a n c e s brought
about w h i c h add i g n o m i n y t o t h e natural effects of t h e act.
18. That t h e crime be committed after an unlawful entry.
There i s a n unlawful e n t r y w h e n a n e n t r a n c e i s e f f e c t ed
by a way not i n t e n d e d for t h e purpose.
19. That as a m e a n s to t h e c o m m i s s i o n of a crime a wall,
roof, f l o o r , door, or w i n d o w be broken.
AGGRAVATING CIRCUMSTANCES
Advantage Taken of Public Position
Art. 14
Par. 1
20. That t h e c r i m e b e committed w i t h t h e a id o f p e r s o n s
under f i f t e e n y e a r s of age, or by means of m o t o r v e h i c l e , airships,
or o t h e r s i m i l a r means.
21. That t h e w r o n g d o n e i n t h e c o m m i s s i o n o f t h e crime
be d e l i b e r a t e l y a u g m e n t e d b y c a u s i n g o t h e r w r o n g n o t necessary
for i t s commission.
To be appreciated, qualifying and aggravating circumstances
must be alleged in the information.
Pursuant to the 2000 Revised Rules of Criminal Procedure,
every Complaint or Information must state not only the qualifying
but also the aggravating circumstances. This rule may be given
retroactive effect in the light of the well-established rule that
statutes regulating the procedure of the courts will be construed
as applicable to actions pending and undetermined at the time of
their passage. The aggravating circumstances of evident premeditation,
dwelling and unlawful entry, not having been alleged in the
Information, may not now be appreciated to enhance the liability of
accused-appellant. (People vs. Antonio, G.R. No. 144266, November
27, 2002)
If not alleged, they may still be considered in the award of
damages.
Although the aggravating circumstances in question cannot
be appreciated for the purpose of fixing a heavier penalty in this
case, they should, however, be considered as bases for the award of
exemplary damages, conformably to current jurisprudence. (People
vs. Evina, G.R. Nos. 124830-31, June 27, 2003)
Par. 1. — That advantage be taken by the offender of his public
position.
Basis of this aggravating circumstance.
This is based on the greater perversity of the offender, as shown
by the personal circumstance of the offender and also by the means
used to secure the commission of the crime.
335
Art. 14
Par. 1
AGGRAVATING CIRCUMSTANCES
Advantage Taken of Public Position
Applicable only when the offender is a public officer.
The aggravating circumstance that advantage be taken by the
offender of his public position applies only when the person committing
the crime is a public officer who takes advantage of his public
position.
Meaning of "advantage be taken by the offender of his public
position."
The public officer must use the influence, prestige or ascendancy
which his office gives him as the means by which he realizes his
purpose. The essence of the matter is presented in the inquiry, "Did
the accused abuse his office in order to commit the crime?" (U.S. vs.
Rodriguez, 19 Phil. 150, 156-157)
Examples:
a. The accused took advantage of his public position. He could
not have maltreated the victim if he was not a policeman
on guard duty. Because of his position, he had access to
the cell where the victim was confined. The prisoner was
under his custody. (People vs. Ural, No. L-30801, March
27, 1974, 56 SCRA 138, 145)
b. There is abuse of public position where a police officer in
the course of investigation of a charge against him for grave
threats shot the complainant in a treacherous manner.
(People vs. Reyes, No. L-33154, Feb. 27, 1976, 69 SCRA
474, 480-481)
c. Advantage of public position is present where the accused used
their authority as members of the police and constabulary to
disarm the victim before shooting him. (People vs. Asuncion,
G.R. No. 83870, Nov. 14,1989,179 SCRA 396, 402)
This aggravating circumstance is not present when a Congressman
offered resistance to a peace officer.
In the case of a Congressman who offered resistance to his
captor upon being surprised in a gambling house, this aggravating
circumstance is not present. (People vs. Veloso, 48 Phil. 169,183) The
reason for this ruling is that the Congressman did not take advantage
of the influence or reputation of his office.
336
AGGRAVATING CIRCUMSTANCES
Advantage Taken of Public Position
Art. 14
Par. 1
This aggravating circumstance is present when a councilor
collects fines and misappropriates them.
U.S. vs. Torrida
(23 Phil. 189)
Facts: The accused, shortly after entering upon his duties as
councilor of the town of Aparri, ordered that deaths of all large animals
must be reported to him as councilman. As a result of this instruction,
the owners of several such animals were induced to pay the accused
supposed fines on the belief that such were required by a municipal
ordinance. He spent the money paid to, and received by him as fines.
Held: The fact that the accused was councilor at the time placed
him in a position to commit these crimes. If he were not a councilor he
could not have induced the injured parties to pay these alleged fines. It
was on account of his being councilor that the parties believed that he
had the right to collect fines and it was for this reason that they made
the payments. It is true that he had no right to either impose or collect
any fine whatsoever and it is likewise true that a municipal councilor is
not an official designated by law to collect public fines, but these facts
do not destroy or disprove the important fact that the accused did, by
taking advantage of his public position, deceive and defraud the injured
parties out of the money they paid him.
Note: The crime committed by Torrida is estafa by means of deceit.
(Art. 315, par. 2)
When the public officer did not take advantage of the influence
of his position, this aggravating circumstance is not present.
U.S. vs. Dacuycuy
(9 Phil. 84)
Facts: Thirty-nine (39) persons requested the accused, then a
councilor, to purchase cedulas for them giving him P39.00. He took
only 16 cedulas, and spent the rest of the money.
Held: When a public officer commits a common crime independent
of his official functions and does acts that are not connected with
the duties of his office, he should be punished as a private individual
without this aggravating circumstance.
Note: In this case, Dacuycuy did not avail himself of the influence,
prestige or ascendancy which his position carried with it, when
337
Art. 14
Par. 1
AGGRAVATING CIRCUMSTANCES
Advantage Taken of Public Position
he committed the crime of estafa with abuse of confidence. (Art. 315,
par. 1) He received the money in his private capacity. He was requested
by the people to buy cedula certificates for them.
Likewise, the mere fact that the defendant, a justice of the peace,
misappropriated the money he received from the debtor in an extrajudicial
agreement under obligation to turn it over to the creditor,
does not aggravate his liability, inasmuch as no legal proceedings were
pending at the time of this agreement and the debt was not reduced
to judgment. He did not take advantage of his official position in the
commission of the crime of estafa. (U.S. vs. Estabaya, 36 Phil. 64,
67)
There must be proof that the accused took advantage of his public
position.
It is not shown that accused-appellant took advantage of his
position as confidential agent of Mayor Claudio in shooting the victim,
or that he used his "influence, prestige or ascendancy" in killing the
deceased. Accused-appellant could have been shot by Bayona without
having occupied the said position. Thus, in the absence of proof that
advantage was taken by accused-appellant of his being a confidential
agent, the aggravating circumstance of abuse of public position could
not be properly appreciated against him. (People vs. Ordiales, No.
L-30956, Nov. 23, 1971, 42 SCRA 238, 245-246)
Peace officers taking advantage of their public positions.
A policeman in uniform who abducted a girl by availing himself
of his position (U.S. vs. Yumul, 34 Phil. 169,175), or the chief of police
who, during the search of a boat by means of intimidation, obtained
money from the crew (People vs. Cerdena, 51 Phil. 393, 394-395), or
a special agent of the military police who committed robbery with
homicide with the gun which he had been authorized to carry as a
peace officer (People vs. Madrid, 88 Phil. 1,15), committed the crime
by taking advantage of his public position.
In the case of Fortuna vs. People, G.R. No. 135784, Dec. 4,
2000, it was held that "[t]he mere fact that the three (3) accused
were all police officers at the time of the robbery placed them in a
position to perpetrate the offense. If they were not police officers,
they could not have terrified the Montecillos into hording the mobile
338
AGGRAVATING CIRCUMSTANCES
Advantage Taken of Public Position
Art. 14
Par. 1
patrol car and forced them to hand over their money. Precisely it
was on account of their authority that the Montecillos believed
that Mario had in fact committed a crime and would be brought
to the police station for investigation unless they gave them what
they demanded."
Wearing uniform is immaterial in certain cases.
Although he was off-duty and there is evidence that he was in
civilian clothes at the time, it is nonetheless obvious that knowing that
the offended party was aware of his being a policeman, and sought to
impose, illegally, his authority as such, the penalty provided by law
must be meted out in its maximum period. (People vs. Tongco, 3 C.A.
Rep. 1071)
The mere fact that he was in fatigue uniform and had army rifle
at the time is not sufficient to establish that he misused his public
position in the commission of the crimes. (People vs. Pantoja, No. L-
18793, Oct. 11, 1968, 25 SCRA 468, 471-472)
Failure in official duties is tantamount to abusing of office.
But even if defendant did not abuse his office, if it is proven that
he has failed in his duties as such public officer, this circumstance
would warrant the aggravation of his penalty.
Thus, the fact that defendant was the vice-president of a town
at the time he voluntarily joined a band of brigands made his liability
greater. (U.S. vs. Cagayan, 4 Phil. 424, 426)
Not aggravating when it is an integral element of, or inherent
in, the offense.
This circumstance, taking advantage of public position, cannot
be taken into consideration in offenses where taking advantage of
official-position is made by law an integral element of the crime, such
as in malversation under Art. 217, or in falsification of document
committed by public officers under Art. 171. (People vs. Tevez, 44
Phil. 275, 277)
Taking advantage of public position is inherent in the case of
accessories under Art. 19, par. 3, and in crimes committed by public
officers. (Arts. 204 to 245)
339
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 2 Contempt or Insult to Public Authorities
Par. 2. — That the crime be committed in contempt of or with
insult to the public authorities.
Basis of this aggravating circumstance.
This is based on the greater perversity of the offender, as shown
by his lack of respect for the public authorities.
Requisites of this circumstance:
1. That the public authority is engaged in the exercise of his
functions.
2. That he who is thus engaged in the exercise of said functions
is not the person against whom the crime is committed.
(U.S. vs. Rodriguez, 19 Phil. 150,156; People vs. Siojo, 61
Phil. 307, 317)
3. The offender knows him to be a public authority.
4. His presence has not prevented the offender from committing
the criminal act.
Example of this aggravating circumstance:
A and B are quarreling on a street and the municipal mayor,
upon passing by, attempts to separate them to stop the quarrel. Notwithstanding
the intervention and the presence of the mayor, A and
340
Not aggravating if accused could have perpetrated the crime
without occupying police position.
In this case, there was no showing that accused-appellant took
advantage of his being a policeman to shoot Jelord Velez or that he
used his "influence, prestige or ascendancy" in killing the victim. Accused-
appellant could have shot Velez even without being a policeman.
In other words, if the accused could have perpetrated the crime even
without occupying his position, there is no abuse of public position.
In People vs. Herrera, the Court emphatically said that the mere fact
that accused-appellant is a policeman and used his government issued
.38 caliber revolver to kill is not sufficient to establish that he
misused his public position in the commission of the crime. (People
vs. Villamor, G.R. Nos. 140407-08, January 15, 2002)
AGGRAVATING CIRCUMSTANCES Art. 14
Contempt or Insult to Public Authorities Par. 2
B continued to quarrel until A succeeds in killing B. In this case, A
commits the crime of homicide with the aggravating circumstance of
a "in contempt of or with insult to the public authority."
Meaning of "public authority."
A public authority, sometimes also called a person in authority,
is a public officer who is directly vested with jurisdiction, that is, a
public officer who has the power to govern and execute the laws. The
councilor, the mayor, the governor, etc., are persons in authority.
The barangay captain and barangay chairman are also persons in
authority. (Art. 152, as amended by P.D. No. 1232, Nov. 7, 1977)
Not applicable when crime is committed in the presence of
an agent only.
Paragraph 2 of Art. 14 was not applied in a case where the crime
was committed in the presence of the chief of police of a town, because
he is not a public authority, but an agent of the authorities. (People
vs. Siojo, 61 Phil. 307, 311, 317; People vs. Verzo, No. L-22517, Dec.
26, 1967, 21 SCRA 1403, 1410)
An agent of a person in authority is "any person who, by direct
provision of law or by election or by appointment by competent
authority, is charged with the maintenance of public order and
the protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any person
who comes to the aid of persons in authority." (Art. 152, as amended
by BP Big. 873)
The crime should not be committed against the public authority.
If the crime is committed against a public authority while he is
in the performance of his official duty, the offender commits direct
assault (Art. 148) without this aggravating circumstance, because it
is not a crime committed "in contempt of or with insult" to him, but
a crime directly committed against him.
This rule was not followed in the case of People vs. Santok,
G.R. No. L-18226, May 30, 1963, where it was held that the crime
committed was homicide with the aggravating circumstance of the
commission of the offense in contempt of the public authority, since
341
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
the deceased was shot while in the performance of his official duty
as barrio lieutenant.
The accused should have been prosecuted for and convicted of a
complex crime of homicide with direct assault (Art. 249, in relation to
Art. 48 and Art. 148, Revised Penal Code), without the aggravating
circumstance.
Knowledge that a public authority is present is essential.
Lack of knowledge on the part of the offender that a public authority
is present indicates lack of intention to insult the public authority.
Thus, if A killed B in the presence of the town mayor, but A did
not know of the presence of the mayor, this aggravating circumstance
should not be considered against A.
Presence of public authority has not prevented offender from
committing the crime.
An offense may be said to have been committed in contempt of
a public authority when his presence, made known to the offender,
has not prevented the latter from committing the criminal act.
Par. 3. — That the act be committed (1) with insult or in
disregard of the respect due the offended party on
account of his (a) rank, (b) age, or (c) sex, or (2) that
it be committed in the dwelling of the offended party,
if the latter has not given provocation.
When all the four aggravating circumstances are present,
must they be considered as one?
Four circumstances are enumerated in this paragraph, which
can be considered single or together. If all the four circumstances are
present, they have the weight of one aggravating circumstance only.
(Albert) But see the case of People vs. Santos, 91 Phil. 320, cited under
paragraph 6, Art. 14.
The aggravating circumstances of sex and age of the injured
party as well as those of dwelling place and nighttime must also be
taken into account. (People vs. Taga, 53 Phil. 273)
342
AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
Basis of these aggravating circumstances.
These circumstances are based on the greater perversity of the
offender, as shown by the personal circumstances of the offended
party and the place of the commission of the crime.
Applicable only to crimes against persons or honor.
This circumstance (rank, age or sex) may be taken into account
only in crimes against persons or honor.
Thus, in the case of the robbery of a thing belonging to the
President, the aggravating circumstance of disregard of respect due
the offended party cannot be taken into account, because the mere
fact that the thing belongs to the President does not make it more
valuable than the things belonging to a private person.
Disregard of the respect due the offended party on account of
his rank, age or sex may be taken into account only in crimes against
persons or honor, when in the commission of the crime, there is some
insult or disrespect to rank, age or sex. It is not proper to consider
this aggravating circumstance in crimes against property. Robbery
with homicide is primarily a crime against property and not against
persons. Homicide is a mere incident of the robbery, the latter being
the main purpose and object of the criminal. (People vs. Pagal, No.
L-32040, Oct. 25, 1977, 79 SCRA 570, 576-577)
Meaning of "with insult or in disregard."
It is necessary to prove the specific fact or circumstance, other
than that the victim is a woman (or an old man or one of high rank),
showing insult or disregard of sex (or age or rank) in order that it
may be considered as aggravating circumstance. (People vs. Valencia,
C.A., 43 O.G. 3740) There must be evidence that in the commission
of the crime, the accused deliberately intended to offend or insult the
sex or age of the offended party. (People vs. Mangsant, 65 Phil. 548,
550-551)
The circumstance of old age cannot be considered aggravating.
There was no evidence that the accused deliberately intended to offend
or insult the age of the victim. (People vs. Diaz, 70 O.G. 4173,
citing People vs. Gervacio, 24 SCRA 960; People vs. Mangsant, 65
Phil. 548; People vs. Limaco, 88 Phil. 35, 44)
343
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
344
With insult or in disregard of the respect due the offended
party on account —
1. of the rank of the offended party.
There must be a difference in the social condition of
the offender and the offended party.
For example, a private citizen who attacked and injured
a person in authority, or a pupil who attacked and
injured his teacher (U.S. vs. Cabiling, 7 Phil. 469, 474),
the act not constituting direct assault under Art. 148 of
the Revised Penal Code.
Also, killing a judge because he was strict or because
of resentment which the accused harbored against him
as a judge, constitutes the aggravating circumstance of
disregard of the respect due the offended party on account
of his rank. (People vs. Valeriano, 90 Phil. 15, 34-35)
Also, an attempt upon the life of a general of the Philippine
Army is committed in disregard of his rank. (People
vs. Torres, G.R. No. L-4642, May 29,1953)
Rank was aggravating in the following cases: the
killing of a staff sergeant by his corporal; the killing of
the Assistant Chief of Personnel Transaction of the Civil
Service Commission by a clerk therein; the murder by a
pupil of his teacher; the murder of a municipal mayor; the
murder of a city chief of police by the chief of the secret
service division; assault upon a 66-year-old CFI (now RTC)
judge by a justice of the peace (now municipal judge); the
killing of a consul by a mere chancellor; and the killing of
an army general. (People vs. Rodil, No. L-35156, Nov. 20,
1981,109 SCRA 308, 330-331)
Meaning of rank.
"Rank" refers to a high social position or standing as
a grade in the armed forces; or to a graded official standing
or social position or station; or to the order or place in which
said officers are placed in the army and navy in relation to
others; or to the designation or title of distinction conferred
upon an officer in order to fix his relative position in referAGGRAVATING
CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
345
ence to other officers in matters of privileges, precedence,
and sometimes of command or by which to determine his
pay and emoluments as in the case of army staff officers;
or to a grade or official standing, relative position in civil
or social life, or in any scale of comparison, status, grade,
including its grade, status or scale of comparison within a
position. (People vs. Rodil, supra, at 330)
Proof of fact of disregard and deliberate intent to insult required.
Disregard of the rank of the victim who was a barangay
captain cannot be appreciated as an aggravating
circumstance there being no proof of the specific fact or
circumstance that the accused disregarded the respect due
to the offended party, nor does it appear that the accused
deliberately intended to insult the rank of the victim as
barrio captain. (People vs. Talay, No. L-24852, Nov. 28,
1980, 101 SCRA 332, 347)
2. of the age of the offended party.
This circumstance is present when the offended
person, by reason of his age, could be the father of the
offender. (Viada, 1 Cod. Pen. 326; U.S. vs. Esmedia, 17
Phil. 260, 264-265; U.S. vs. Reguera, 41 Phil. 506, 517-
518)
This aggravating circumstance applies to an aggressor,
45 years old, while the victim was an octogenarian.
(People vs. Orbillo, G.R. No. L-2444, April 29, 1950)
This aggravating circumstance was applied also in
the case where the person killed was eighty years old and
very weak. (People vs. Gummuac, 93 Phil. 657)
The aggravating circumstance of disregard of age
attended the commission of the crime when the deceased
was 65 while the offenders were 32 and 27 years of age,
respectively. (People vs. Zapata, G.R. No. L-11074, Feb.
27, 1960, 107 Phil. 103, 108)
The crime was committed in disregard of the respect
due to the victim on account of age and relationship,
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
346
the accused being a grandson of the deceased. (People
vs. Curatchia, No. L-31771, May 16, 1980, 97 SCRA 549,
556)
The circumstance of lack of respect due to age applies
in cases where the victim is of tender age as well as of old
age. This circumstance was applied in a case where one of
the victims in a murder case was a 12-year-old boy. Here,
the victim was only 3 years old. (People vs. Lora, No. L-
49430, March 30,1982,113 SCRA 366,375, citing U.S. vs.
Butag, 38 Phil. 746. Also, People vs. Enot, No. L-17530, Oct.
30, 1962, 6 SCRA 325, 329-330, where one of the victims
was only five years old, another, a minor, and the third, a
seven-month-old baby)
But when the injuries inflicted upon a 9-year-old girl
were "without any thought or intention x x x of heaping
contumely or insult upon the child because of her sex or
her tender age," this circumstance was not considered aggravating.
(U.S. vs. Dacquel, 781, 782-783)
Deliberate intent to offend or insult required.
The circumstance of old age cannot be considered
aggravating in the absence of evidence that the accused
deliberately intended to offend or insult the age of the
victim. (People vs. Diaz, No. L-24002, Jan. 21, 1974, 55
SCRA 178,187)
Disregard of old age not aggravating in robbery with homicide.
It is not proper to consider disregard of old age in
crimes against property. Robbery with homicide is primarily
a crime against property and not against persons.
Homicide is a mere incident of the robbery, the latter being
the main purpose and object of the criminal. (People
vs. Nabaluna, No. L-60087, July 7, 1986, 142 SCRA 446,
458)
This circumstance applies to tender age as well as to
old age. This circumstance was applied in a murder case
where one of the victims was a boy twelve years of age.
(U.S. vs. Butag, 38 Phil. 746)
AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
3. of the sex of the offended party.
This refers to the female sex, not to the male sex.
Examples:
a. When a person compels a woman to go to his house
against her will, the crime of coercion with the aggravating
circumstance of disrespect to sex is committed.
(U.S. vs. Quevengco, 2 Phil. 412, 413)
b. The accused who, upon knowing the death of their
relative, and not being able to take revenge on the
killers, because of their imprisonment, selected and
killed a female relative of the killers in retaliation,
committed the act with this aggravating circumstance.
(People vs. Dayug, 49 Phil. 423, 427)
c. Direct assault upon a lady teacher. (Sarcepuedes vs.
People, 90 Phil. 230; People vs. Manapat, C.A., 51 O.G.
894)
No disregard of respect due to sex.
A and B (a woman) were sweethearts. B told A that she no
longer cared for him and that she loved another man. A stabbed B to
death. Held: It was not proved or admitted by the accused that when
he committed the crime, he had the intention to offend or disregard
the sex of the victim. (People vs. Mangsant, 65 Phil. 548, 550)
Killing a woman is not attended by this aggravating circumstance if
the offender did not manifest any specific insult or disrespect towards
her sex.
Disregard of sex is not aggravating in the absence of evidence
that the accused deliberately intended to offend or insult the sex of the
victim or showed manifest disrespect to her womanhood. (People vs.
Puno, No. L-33211, June 29, 1981, 105 SCRA 151,160, citing People
vs. Mangsant, 65 Phil. 548; People vs. Mori, L-23511-2, January 31,
1974, 55 SCRA 382; People vs. Jaula, 90 Phil. 379; U.S. vs. De Jesus,
14 Phil. 190)
Not applicable in certain cases.
This aggravating circumstance is not to be considered in the
following cases:
347
AGGRAVATING CIRCUMSTANCES
Disregard of Rank, Age, Sex or Dwelling
of Offended Party
When the offender acted with passion and obfuscation.
When a man is blinded with passion or obfuscation,
this being the condition of the mind, he could not have
been conscious that his act was done with disrespect to the
offended party. (People vs. Ibahez, C.A.-G.R. No. 1137-R,
March 20, 1948)
When there exists a relationship between the offended party
and the offender.
Facts: After a decree of divorce, the wife was given the
custody of their baby girl. Thereafter, the accused meeting
his former wife, asked her to allow him to visit their daughter,
but she turned down his request. The accused became
infuriated and pointed his gun at her as she boarded a
carretela. The gun went off and she was injured.
Held: Notwithstanding the divorce decree, there still
existed some relationship between the accused and his
divorced wife, which had direct bearing with their only
child, for which reason, the accused was asking his former
wife to allow him to visit their daughter entrusted to her
by order of the court. The accused had to deal with no
other person but with his former wife to visit his daughter.
(People vs. Valencia, C.A., 43 O.G. 3740)
The record does not show that the commission of
the crime in question was attended by any offense to or
disregard of the age of the offended party, about 75 or 65
years old, taking into account the circumstances under
which the act in question developed and the pre-existing
relations between the accused and the deceased. (People
vs. Akanatsu, 51 Phil. 963, 965)
There existed in this case a relation of employer and
laborer, because the deceased was a laborer of the offender.
When the condition of being a woman is indispensable in
the commission of the crime.
Thus, in (a) parricide, (b) rape, (c) abduction, or (d)
seduction, sex is not aggravating.
Rape being a sex crime or one committed against a
woman, the trial court erred in considering sex as an ag-
348
AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
349
gravating circumstance in imposing the penalty, it being
inherent in the crime of rape. (People vs. Lopez, 107 Phil.
1039,1042)
Disregard of sex absorbed in treachery.
There was disregard of sex because the blouse of the victim was
needlessly removed, but the circumstance is absorbed in treachery
which is attendant. (People vs. Clementer, No. L-33490, Aug. 30,1974,
58 SCRA 742, 749, citing People vs. Mangsant, 65 Phil. 548; People
vs. Limaco, 88 Phil. 35)
But see People vs. Lapaz, G.R. No. 68898, March 31, 1989, 171
SCRA 539, at 550, where it was held that the aggravating circumstances
of disregard of sex and age are not absorbed in treachery because
treachery refers to the manner of the commission of the crime, while
disregard of sex and age pertains to the relationship of the victim.
That the crime be committed in the dwelling of the offended
party.
Dwelling must be a building or structure, exclusively used for rest
and comfort. A "combination house and store" (People vs. Magnaye,
89 Phil. 233, 239), or a market stall where the victim slept is not a
dwelling.
Basis of this aggravating circumstance.
This is based on the greater perversity of the offender, as shown
by the place of the commission of the offense.
Dwelling is considered an aggravating circumstance primarily
because of the sanctity of privacy the law accords to human abode.
According to one commentator, one's dwelling place is a "sanctuary
worthy of respect" and that one who slanders another in the latter's
house is more guilty than he who offends him elsewhere. (People vs.
Balansi, G.R. No. 77284, July 19, 1990, 187 SCRA 566, 575)
What aggravates the commission of the crime in one's dwelling:
1. The abuse of confidence which the offended party reposed
in the offender by opening the door to him; or
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
2. The violation of the sanctity of the home by trespassing
therein with violence or against the will of the owner. (Dissenting
opinion of Justice Villareal, People vs. Ambis, 68
Phil. 635, 637)
"The home is a sort of sacred place for its owner. He who goes
to another's house to slander him, hurt him or do him wrong, is more
guilty than he who offends him elsewhere." (Viada, 5th edition, Vol.
II, pp. 323-324)
The evidence must show clearly that the defendant entered the
house of the deceased to attack him. (People vs. Lumasag, 56 Phil.
19, 22; People vs. Manuel, Nos. L-23786-7, Aug. 29, 1969, 29 SCRA
337, 345)
Offended party must not give provocation.
As may be seen, a condition sine qua non of this circumstance,
is that the offended party "has not given provocation" to the offender.
When it is the offended party who has provoked the incident, he loses
his right to the respect and consideration due him in his own house.
(People vs. Ambis, supra)
Meaning of provocation in the aggravating circumstance of
dwelling.
The provocation must be:
(1) Given by the owner of the dwelling,
(2) Sufficient, and
(3) Immediate to the commission of the crime.
If all these conditions are present, the offended party is
deemed to have given provocation, and the fact that the crime is
committed in the dwelling of the offended party is not an aggravating
circumstance.
On the other hand, if any of those conditions is not present, the
offended party is deemed not to have given provocation, and the fact
that the crime is committed in the dwelling of the offended party is
an aggravating circumstance.
350
AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
351
There must be close relation between provocation and commission
of crime in the dwelling.
Although the Code provides that the aggravating circumstance
of dwelling cannot be properly taken into account if the provocation
was given by the offended party, this is true only when there exists
a close relation between the provocation and the commission of the
crime in the dwelling of the person from whom the provocation came.
(People vs. Dequiiia, 60 Phil. 279, 288)
Because the provocation is not immediate, dwelling is aggravating.
The defendant learned that the deceased and the former's wife
were maintaining illicit relations. One night, he went to the house of
the deceased and killed him then and there. During the trial of the
case, the defense contended that the deceased provoked the crime
by his illicit relations with the defendant's wife. Held: That the
provocation (the illicit relations) was not given immediately prior to
the commission of the crime. Dwelling is still aggravating. (People
vs. Dequina, 60 Phil. 279, 288-289)
Even if the defendant came to know of the illicit relations
immediately before he went to the house of the deceased, the
aggravating circumstance of dwelling may still be considered against
the defendant because the provocation (the illicit relations) did not
take place in that house.
If the defendant surprised the deceased and the wife of the
defendant in the act of adultery in the house of the deceased, the
aggravating circumstance of dwelling would not exist. (People vs.
Dequina, supra)
Owner of dwelling gave immediate provocation — dwelling
is not aggravating.
Dwelling is not aggravating, although the incident happened in
the house of the victim, where the stabbing was triggered off by his
provocative and insulting acts, for having given sufficient provocation
before the commission of the crime, he has lost his right to the respect
and consideration due him in his own house. (People vs. Atienza, No.
L-39777, Aug. 31, 1982, 116 SCRA 379, 385)
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
352
While in her house, the offended party began to abuse the
daughter of the accused and to call her vile names. The accused
heard the insulting words and appeared in front of the offended
party's house and demanded an explanation. A quarrel ensued, and
the accused, becoming very angry and excited, entered the house
of the offended party and struck her with a bolo. In that case, the
invasion of the privacy of the offended party's home was the direct
and immediate consequence of the provocation given by her. No
aggravating circumstance of dwelling. (U.S. vs. Licarte, 23 Phil. 10,
12)
Prosecution must prove that no provocation was given by
the offended party.
That the offended party has not given provocation in
his house is a fact that must be shown by the evidence of the
prosecution, as it cannot be assumed. It is an essential element
of the aggravating circumstance of dwelling. (People vs. Pakah,
81 Phil. 426, 429)
Even if the offender did not enter the dwelling, this circumstance
applies.
The aggravating circumstance of dwelling should be taken into
account. Although the triggerman fired the shot from outside the
house, his victim was inside. For this circumstance to be considered,
it is not necessary that the accused should have actually entered the
dwelling of the victim to commit the offense; it is enough that the
victim was attacked inside his own house, although the assailant
may have devised means to perpetrate the assault from without.
(People vs. Ompaid, No. L-23513, Jan. 31, 1969, 26 SCRA 750,
760, citing People vs. Albar, 86 Phil. 36) Thus, dwelling was held
aggravating where the victim who was asleep in his house was shot
as he opened the door of his house upon being called and awakened
by the accused. (People vs. Talay, No. L-24852, Nov. 28, 1980, 101
SCRA 332, 346)
Dwelling is aggravating, even if the offender did not enter the
upper part of the house where the victim was, but shot from under
the house. (People vs. Bautista, 79 Phil. 652, 653, 657)
AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
353
Even if the killing took place outside the dwelling, it is aggravating
provided that the commission of the crime was begun
in the dwelling.
Thus, where the accused began the aggression upon the person of
the deceased in the latter's dwelling by binding his hands or by dragging
him from his house and after taking him to a place near the house
he killed him, dwelling is aggravating, since the act performed cannot
be divided or the unity resulting from its details be broken up. (U.S. vs.
Lastimosa, 27 Phil. 432, 438; People vs. Mendova, 100 Phil. 811, 818)
Dwelling is aggravating in abduction or illegal detention.
In abduction or illegal detention where the victim was taken
from her or his house and carried away to another place, dwelling is
aggravating. (U.S. vs. Banila, 19 Phil. 130,133; U.S. vs. Velasquez,
8 Phil. 321, 324; People vs. Masilungan, 104 Phil. 621, 635)
But dwelling was not aggravating in a case where the deceased
was called down from his house and he was murdered in the vicinity
of the house. (U.S. vs. Ramos, 1 Phil. 192, 193; People vs. Lumasag,
56 Phil. 19, 22-23)
What dwelling includes.
Dwelling includes dependencies, the foot of the staircase and
enclosure under the house. (U.S. vs. Tapan, 20 Phil. 211, 213; People
vs. Alcala, 46 Phil. 739, 744)
But, in People vs. Diamonon, L-38094, Nov. 7, 1979, 94 SCRA
227,239,240, where the victim was stabbed at the foot of their stairs,
dwelling was not aggravating. Aquino, J., concurring and dissenting,
said that dwelling is aggravating because the killing took place at
the foot of the stairs of the victim's house, (p. 241)
If the deceased was only about to step on the first rung of the ladder
when he was assaulted, the aggravating circumstance of dwelling
will not be applicable. (People vs. Sespene, 102 Phil. 199, 210)
When the deceased had two houses where he used to live,
the commission of the crime in any of them is attended by
the aggravating circumstance of dwelling.
In a case, it was held that the aggravating circumstance of
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
354
dwelling was present, because the deceased was murdered in the
house at Franco Street in Tondo, which was one of the two houses
(the other being at Constancia, Sampaloc) where the deceased used
to live and have his place of abode during his stay in Manila. (People
vs. Rodriguez, 103 Phil. 1015)
Dwelling is not aggravating in the following cases:
1. When both offender and offended party are occupants of
the same house (U.S. vs. Rodriguez, 9 Phil. 136,139-140),
and this is true even if offender is a servant in the house.
(People vs. Caliso, 58 Phil. 283, 294-295)
Thus, dwelling is not aggravating in rape where the
accused and the offended party are domiciled in the same
house. (People vs. Morales, No. L-35413, Nov. 7,1979, 94
SCRA 191, 201)
2. When the robbery is committed by the use of force upon
things, dwelling is not aggravating because it is inherent.
To commit robbery by the use of force upon things, the
offender must enter the dwelling house, or other building,
of the offended party. (U.S. vs. Cas, 14 Phil. 21, 22)
But dwelling is aggravating in robbery with violence
against or intimidation of persons because this class
of robbery can be committed without the necessity of
trespassing the sanctity of the offended party's house.
Entrance into the dwelling house of the offended party
is not an element of the offense. (People vs. Cabato, No.
L-37400, April 15, 1988, 160 SCRA 98, 110; People vs.
Apduhan, Jr., No. L-19491, Aug. 30, 1968, 24 SCRA 798,
815; People vs. Valdez, 64 Phil. 860, 867)
Dwelling is not inherent, hence, aggravating, in
robbery with homicide since the author thereof could
have accomplished the heinous deed without having to
violate the domicile of the victim. (People vs. Mesias, G.R.
No. 67823, July 9, 1991, 199 SCRA 20, 27, citing earlier
cases)
Note: There are two kinds of robbery: (1) robbery with
violence against or intimidation of persons; and (2)
AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
355
robbery with force upon things in inhabited house.
(Arts. 294 and 299)
3. In the crime of trespass to dwelling, it is inherent or
included by law in defining the crime. This crime can be
committed only in the dwelling of another.
4. When the owner of the dwelling gave sufficient and
immediate provocation.
5. When the dwelling where the crime was committed did
not belong to the offended party. Thus, when the accused,
upon hearing that their sister was dead, went to her house,
and then and there, upon seeing their sister lying on the
floor with her head resting on the lap of her paramour, and
thinking that the latter had killed her, attacked and killed
him, the aggravating circumstance of dwelling cannot be
considered against the accused. The dwelling did not belong
to the paramour, the person whom they killed. (People vs.
Guhiting, 88 Phil. 672, 675)
6. When the rape was committed in the ground floor of a
two-story structure, the lower floor being used as a video
rental store and not as a private place of abode or residence.
(People vs. Tano, G.R. No. 133872, May 5, 2000)
Dwelling was found aggravating in the following cases although
the crimes were committed not in the dwelling of the
victims.
1. The victim was raped in the boarding house where she
was a bedspacer. Her room constituted a "dwelling" as the
term is used in Article 14(3) of the Revised Penal Code.
(People vs. Daniel, No. L-40330, Nov. 20, 1978, 86 SCRA
511, 531)
2. The victims were raped in their paternal home where they
were guests at the time and did not reside there. (2 CAR
[2s] 675)
But in People vs. Ramolete, No. L-28108, March 27,
1974, 56 SCRA 66, 81, dwelling was not considered aggravating
because the victim was a mere visitor in the house
where he was killed.
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
3. The victim was killed in the house of her aunt where she
was living with her niece. Dwelling was considered aggravating
because dwelling may mean temporary dwelling.
(People vs. Badilla, G.R. No. 69317, May 21, 1990, 185
SCRA 554, 570)
4. The victims, while sleeping as guests in the house of another
person, were shot to death in that house. Dwelling
was held aggravating. The Code speaks of "dwelling," not
domicile. (People vs. Basa, 83 Phil. 622, 624)
Dwelling is aggravating when the husband killed his estranged
wife in the house solely occupied by her.
The aggravating circumstance of dwelling is present when the
husband killed his estranged wife in the house occupied by her, other
than the conjugal home. (People vs. Galapia, Nos. L-39303-05, Aug.
1, 1978, 84 SCRA 526, 532)
In case of adultery.
When adultery is committed in the dwelling of the husband, even
if it is also the dwelling of the unfaithful wife, it is aggravating because
besides the latter's breach of the fidelity she owes her husband, she
and her paramour violated the respect due to the conjugal home and
they both thereby injured and commited a very grave offense against
the head of the house. (U.S. vs. Ibanez, 33 Phil. 611, 613)
Note: Adultery is committed by a married woman who shall
have sexual intercourse with a man not her husband and
by the man who has carnal knowledge of her, knowing
her to be married. (Art. 333, Revised Penal Code)
Dwelling not aggravating in adultery when paramour also lives there.
But the rule is different if both the defendants (the wife and
her paramour) and the offended party were living in the same house
because the defendants had a right to be in the house.
The aggravating circumstance of abuse of confidence was
properly applied, when the offended husband took the paramour into
his home, furnished him with food and lodging without charge, and
treated him like a son. (U.S. vs. Destrito, 23 Phil. 28, 33)
356
AGGRAVATING CIRCUMSTANCES Art. 14
Abuse of Confidence and Obvious Par. 4
Ungratefulness
The aggravating circumstance present in such case is abuse of
confidence, if the offender availed himself of the favorable position in
which he was placed by the very act of the injured party, thus grossly
abusing the confidence of the latter in admitting him into his dwelling.
(U.S. vs. Barbicho, 13 Phil. 616, 620-621)
Dwelling is not included in treachery.
Although nocturnity and abuse of superior strength are always
included in the qualifying circumstance of treachery, dwelling cannot
be included therein. (People vs. Ruzol, 100 Phil. 537, 544)
Par. 4. — That the act be committed with (1) abuse of confidence,
or (2) obvious ungratefulness.
There are two aggravating circumstances in this paragraph.
Basis of these aggravating circumstances.
They are based on the greater perversity of the offender, as
shown by the means and ways employed.
Abuse of confidence.
This circumstance exists only when the offended party has
trusted the offender who later abuses such trust by committing
the crime. The abuse of confidence must be a means of facilitating
the commission of the crime, the culprit taking advantage of
the offended party's belief that the former would not abuse said
confidence.
Requisites:
1. That the offended party had trusted the offender.
2. That the offender abused such trust by committing a crime
against the offended party.
3. That the abuse of confidence facilitated the commission of
the crime. (People vs. Luchico, 49 Phil. 689, 697; People
vs. Zea, No. L-23109, June 29, 1984, 130 SCRA 77, 90)
357
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 4 Abuse of Confidence and Obvious
Ungratefulness
Example:
A jealous lover, who had already determined to kill his sweetheart,
invited her to a ride in the country. The girl, unsuspecting
of his plans, went with him. While they were in the car, the jealous
lover stabbed her. It was held that this aggravating circumstance
was present. (People vs. Marasigan, 70 Phil. 583, 594)
Confidence does not exist.
Facts: After preliminary advances of the master, the female
servant refused and fled. The master followed and after catching up
with her, threw her on the ground and committed the crime of rape.
When the master raped the offended party, she had already lost her
confidence in him from the moment he made an indecent proposal
and offended her with a kiss.
Held: The confidence must facilitate the commission of the crime,
the culprit taking advantage of offended party's belief that the former
would not abuse said confidence. No aggravating circumstance in this
case. (People vs. Luchico, 49 Phil. 689, 697)
There is no abuse of confidence in attempted rape where on the
day of the crime, the accused was in the company of the offended girl,
not because of her confidence in him, but because they were partners
in a certain business. (People vs. Brocal, C.A., 46 O.G. 6163)
Special relation of confidence between accused and victim.
There is no abuse of confidence where the deceased and the
accused happened to be together because the former invited the latter
nightclubbing and to bring with him the money the latter owed the
former. (People vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174,
213-214)
Betrayal of confidence is not aggravating.
Facts: The offended party was living in the house of the accused,
her parents having entrusted her to the care of said accused.
One day, at about 6:30 in the evening, while the offended party was
standing in front of a store watching some children who were playing,
the accused approached her, took her by the arm and forcibly
led her to an isolated toilet, hidden from public view by some tall
358
AGGRAVATING CIRCUMSTANCES Art. 14
Abuse of Confidence and Obvious Par. 4
Ungratefulness
grasses, and once in the spot, he intimidated her with a knife and
through the use of force and violence succeeded in having sexual
intercourse with her.
Held: There is no showing that the accused was able to commit
the crime by abusing the confidence reposed in him by the offended
party. The accused betrayed the confidence reposed in him by the
parents of the girl. But this is not an aggravating circumstance. It
must be an abuse of confidence that facilitated the commission of the
crime which is aggravating. (People vs. Arthur Crumb, C.A., 46 O.G.
6163)
Killing of child by an amah is aggravated by abuse of confidence.
When the killer of the child is the domestic servant of the
family and is sometimes the deceased child's amah, the aggravating
circumstance of grave abuse of confidence is present. (People vs.
Caliso, 58 Phil. 283, 294)
Compare this case with the Crumb case. In the Crumb case,
the confidence reposed by the parents of the girl in the offender
could not have facilitated the commission of the crime, because the
offended girl could resist, although unsuccessfully, the commission
of the crime.
In the Caliso case, the victim, being a nine-month-old child,
could not resist the commission of the crime. The confidence reposed
by the parents of the child in the offender facilitated the commission
of the crime.
The confidence between the offender and the offended party
must be immediate and personal.
In the case of U.S. vs. Torrida, 23 Phil. 189,192, it was held that
the mere fact that the voters had reposed confidence in the defendant
by electing him to a public office does not mean that he abused their
confidence when he committed estafa against them.
Abuse of confidence inherent in some felonies.
It is inherent in malversation (Art. 217), qualified theft (Art.
310), estafa by conversion or misappropriation (Art. 315), and qualified
seduction. (Art. 337)
359
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 4 Abuse of Confidence and Obvious
Ungratefulness
Ungratefulness must be obvious, i.e., manifest and clear.
The other aggravating circumstance in paragraph 4 of Art. 14
is that the act be committed with obvious ungratefulness.
This aggravating circumstance was present in the case of the
accused who killed his father-in-law in whose house he lived and who
partially supported him. (People vs. Floresca, G.R. Nos. L-8614-15,
May 31, 1956, 99 Phil. 1044)
The circumstance was present where the accused was living
in the house of the victim who employed him as an overseer and in
charge of carpentry work, and had free access to the house of the
victim who was very kind to him, his family, and who helped him
solve his problems. (People vs. Lupango, No. L-32633, Nov. 12,1981,
109 SCRA 109, 126)
The circumstance was present where a security guard killed a
bank officer and robbed the bank. (People vs. Nismal, No. L-51257,
June 25, 1982, 114 SCRA 487, 494-495)
The circumstance was present where the victim was suddenly
attacked while in the act of giving the assailants their bread and
coffee for breakfast. Instead of being grateful to the victim, at least
by doing him no harm, they took advantage of his helplessness
when his two arms were used for carrying their food, thus
preventing him from defending himself from the sudden attack.
(People vs. Bautista, No. L-38624, July 25, 1975, 65 SCRA 460,
470)
The circumstance exists when a visitor commits robbery or theft
in the house of his host.
But in the case of Mariano vs. People, 68 Phil. 724, 726, the act
of stealing the property of the host is considered as committed with
abuse of confidence.
The mere fact, however, that the accused and the offended
party live in the same house is not in itself enough to hold that
there was present abuse of confidence where the house was not
the property of the offended party. (People vs. Alqueza, 51 Phil.
817, 819-820)
360
AGGRAVATING CIRCUMSTANCES Art. 14
Palace and Places of Commission of Offense Par. 5
Par. 5. — That the crime be committed in the palace of the
Chief Executive, or in his presence, or where public
authorities are engaged in the discharge of their
duties, or in a place dedicated to religious worship.
Basis of the aggravating circumstances.
They are based on the greater perversity of the offender, as
shown by the place of the commission of the crime, which must be
respected.
Place where public authorities are engaged in the discharge
of their duties (par. 5), distinguished from contempt or insult
to public authorities, (par. 2)
1. In both, the public authorities are in the performance of
their duties.
2. Under par. 5, the public authorities who are in the
performance of their duties must be in their office; while
in par. 2, the public authorities are performing their duties
outside of their office.
3. Under par. 2, the public authority should not be the offended
party; while under par. 5, he may be the offended
party. (U.S. vs. Baluyot, 40 Phil. 385, 395)
Official or religious functions, not necessary.
The place of the commission of the felony (par. 5), if it is
Malacahang palace or a church, is aggravating, regardless of whether
State or official or religious functions are being held.
The Chief Executive need not be in Malacanang palace. His
presence alone in any place where the crime is committed is enough
to constitute the aggravating circumstance. This aggravating circumstance
is present even if he is not engaged in the discharge of his
duties in the place where the crime is committed.
Other public authorities must be actually engaged in the
performance of duty.
But as regards the place where the public authorities are engaged
in the discharge of their duties, there must be some performance of
public functions.
361
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 5 Palace and Places of Commission of Offense
362
Thus, where the accused and the deceased who were respectively
plaintiff and defendant in a civil case in the court of a justice of the
peace, having gotten into some trouble, left the courtroom and went
into an adjoining room, where the accused, without any warning,
attacked the deceased with a knife and killed him on the spot, it has
been held that it was error to consider the aggravating circumstance of
having committed the offense in the place where the public authority
was exercising his functions. (U.S. vs. Punsalan, 3 Phil. 260, 261)
Undoubtedly, the reason for not applying the circumstance was
that the court had already adjourned when the crime was committed,
and the attack was made in the adjoining room, not in the very place
where the justice of the peace was engaged in the discharge of his
duties.
An electoral precinct during election day is a place "where public
authorities are engaged in the discharge of their duties."
Thus, the aggravating circumstance "that the crime be committed
x x x where public authorities are engaged in the discharge of
their duties" was appreciated in the murder of a person in an electoral
precinct or polling place during election day. (People vs. Canoy, G.R.
No. L-6037, Sept. 30,1954 [unreported])
Place dedicated to religious worship.
Cemeteries are not such a place, however respectable they may
be, as they are not dedicated to the worship of God. The church is a
place dedicated to religious worship.
The aggravating circumstance "that the crime be committed
x x x in a place dedicated to religious worship" was appreciated in a
case where the accused shot the victims inside the church or in a case
of unjust vexation where the accused kissed a girl inside a church
when a religious service was being solemnized. (People vs. Anonuevo,
C.A., 36 O.G. 2018; People vs. Dumol, CA-G.R. No. 5164-R, April 4,
1951)
Offender must have intention to commit a crime when he
entered the place.
Facts: At the time of the commission of the crime, both the
deceased and defendant were inside a chapel. The deceased placed
AGGRAVATING CIRCUMSTANCES Art. 14
Nighttime, Uninhabited Place or Band Par. 6
Par. 6. — That the crime be committed (1) in the nighttime, or
(2) in an uninhabited place, or (3) by a band, whenever
such circumstance may facilitate the commission of
the offense.
Basis of the aggravating circumstances.
They are based on the time and place of the commission of the
crime and means and ways employed.
Should these circumstances be considered as one only or
three separately?
In its decision of April 5, 1884, the Supreme Court of Spain
held that they constitute only one aggravating circumstance if they
concur in the commission of felony. But in its decision of April 27,
1897, the same court held that its former decision did not declare
an absolute and general rule which would exclude the possibility of
their being considered separately when their elements are distinctly
perceived and can subsist independently, revealing a greater degree
of perversity. (People vs. Santos, 91 Phil. 320, 327-328)
Thus, inPeople vs. Cunanan, 110 Phil. 313, 318, nighttime and
band were considered separately.
When aggravating.
Nighttime, uninhabited place or band is aggravating —
363
his hand on the right thigh of defendant girl, who pulled out with her
right hand a fan knife and stabbed him.
Held: The aggravating circumstance that the killing was done
in a place dedicated to religious worship cannot be legally considered,
where there is no evidence to show that the defendant had murder
in her heart when she entered the chapel on the fatal night. (People
vs. Jaurigue, 76 Phil. 174, 182)
This ruling seems to be applicable also in case a crime is committed
in Malacanang palace or where public authorities are engaged
in the discharge of their duties.
Art. 14
Par. 6
AGGRAVATING CIRCUMSTANCES
Nighttime, Uninhabited Place or Band
(1) When it facilitated the commission of the crime; or
(2) When especially sought for by the offender to insure the
commission of the crime or for the purpose of impunity
(People vs. Pardo, 79 Phil. 568, 578); or
(3) When the offender took advantage thereof for the purpose
of impunity. (U.S. vs. Billedo, 32 Phil. 574, 579; People vs.
Matbagon, 60 Phil. 887, 893)
Although nocturnity should not be estimated as an aggravating
circumstance, since the time for the commission of the crime was not
deliberately chosen by the accused; yet, if it appears that the accused
took advantage of the darkness for the more successful consummation
of his plans, to prevent his being recognized, and that the crime
might be perpetrated unmolested, the aggravating circumstance of
nocturnity should be applied.
To take advantage of a fact or circumstance in committing a
crime clearly implies an intention to do so, and one does not avail
oneself of the darkness unless one intended to do so. (People vs.
Matbagon, 60 Phil. 887, 893; People vs. Apduhan, Jr., No. L-19491,
Aug. 30, 1968, 24 SCRA 798, 816)
Illustration of taking advantage of nighttime.
A, with intent to kill B, had hidden behind a tree and availed
himself of the darkness to prevent his being recognized or to escape
more readily. As soon as B came, A stabbed him to death.
"Whenever such circumstances may facilitate the commission
of the offense."
Paragraph 6 of Article 14 requires only that nighttime,
uninhabited place, or band "may facilitate the commission of the
offense." The test fixed by the statute is an objective one. (Dissenting
opinion in People vs. Matbagon, 60 Phil. 887, 894)
Nighttime may facilitate the commission of the crime, when
because of the darkness of the night the crime can be perpetrated
unmolested, or interference can be avoided, or there would be greater
certainty in attaining the ends of the offender. (People vs. Matbagon,
supra)
364
AGGRAVATING CIRCUMSTANCES Art. 14
Nighttime, Uninhabited Place or Band Par. 6
365
Nighttime facilitated the commission of the crime to such an
extent that the defendant was able to consummate it with all its
dastardly details without anyone of the persons living in the same
premises becoming aware of what was going on. (People vs. Villas,
No. L-20953, April 21, 1969, 27 SCRA 947, 952-953)
Meaning of "especially sought for," "for the purpose of impunity,"
and "took advantage thereof."
The Supreme Court considered other tests for the application
of the aggravating circumstances under this paragraph. They are
aggravating when they are "especially sought for" or when the offender
"took advantage thereof."
The offender especially sought for nighttime, when he sought
for it in order to realize the crime with more ease. (People vs. Aquino,
68 Phil. 615, 618)
Nighttime is not especially sought for, when the notion to commit
the crime was conceived only shortly before its commission (People
vs. Pardo, 79 Phil. 568, 578-579), or when the crime was committed
at night upon a mere casual encounter. (People vs. Cayabyab, 274
SCRA 387)
But where the accused waited for the night before committing
robbery with homicide, nighttime is especially sought for. (People vs.
Barredo, 87 Phil. 800)
Nighttime was appreciated against the accused who was living
only 150 meters away from the victim's house and evidently waited
for nightfall to hide his identity and facilitate his escape, knowing
that most barrio folks are already asleep, or getting ready to sleep,
at 9:00 p.m. (People vs. Baring, G.R. No. 87017, July 20, 1990, 187
SCRA 629, 636)
Nighttime was sought for where the accused lingered for almost
three hours in the evening at the restaurant before carrying out their
plan to rob it. (People vs. Lungbos, No. L-57293, June 21, 1988, 162
SCRA 383, 388)
There is sufficient proof that the offenders purposely sought
nighttime to commit the crime. Consider the facts that the accused
tried to ascertain whether the occupants of the house were asleep,
thereby indicating the desire to carry out the plot with the least
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 6 Nighttime, Uninhabited Place or Band
366
detection or to insure its consummation with a minimum of resistance
from the inmates of the house. (People vs. Atencio, No. L-22518,
January 17, 1968, 22 SCRA 88, 102-103)
The circumstance of nighttime was aggravating where it
is self-evident that it was sought to facilitate the commission of
the offense, when all the members of the household were asleep.
(People vs. Berbal, G.R. No. 71527, Aug. 10, 1989, 176 SCRA 202,
216)
Nighttime need not be specifically sought for when (1) it
facilitated the commission of the offense, or (2) the offender
took advantage of the same to commit the crime.
It is the constant jurisprudence in this jurisdiction that the
circumstance of nocturnity, although not specifically sought for by
the culprit, shall aggravate his criminal liability if it facilitated
the commission of the offense or the offender took advantage of
the same to commit the crime. (People vs. Corpus, C.A., 43 O.G.
2249, citing U.S. vs. Perez, 32 Phil. 163; People vs. Pineda, 56 Phil.
688) .
Nocturnity, even though not specially sought, if it facilitated
the commission of the crime and the accused took advantage thereof
to commit it, may be considered as an aggravating circumstance.
(People vs. Lungbos, supra, citing People vs. Galapia, 84 SCRA
530)
"For the purpose of impunity" means to prevent his (accused's)
being recognized, or to secure himself against detection and punishment.
(People vs. Matbagon, 60 Phil. 887, 891-892, 893)
Thus, it was held that the commission of the crime was attended
by the aggravating circumstance of nighttime, because of the silence
and darkness of the night which enabled the offender to take away
the girl with impunity—a thing which undoubtedly the offender could
not have done in the daytime and in sight of people. (U.S. vs. Yumul,
34 Phil. 169, 175)
The offender took advantage of any of the circumstances of
nighttime, uninhabited place, or by a band when he availed himself
thereof at the time of the commission of the crime for the purpose of
impunity or for the more successful consummation of his plans.
AGGRAVATING CIRCUMSTANCES
Nighttime, Uninhabited Place or Band
Art. 14
Par. 6
(a) Nighttime.
By the word "nighttime" should be understood, according to
Viada, that period of darkness beginning at end of dusk and ending
at dawn. Nights are from sunset to sunrise. (Art. 13, Civil Code)
Nighttime by and of itself is not an aggravating circumstance.
The lower court appreciated nocturnity against appellants solely
on the basis of the fact on record that the crime was committed at
about 5 o'clock in the morning. This particular finding stands correction.
By and of itself, nighttime is not an aggravating circumstance.
It becomes so only when it is especially sought by the offender, or
taken advantage of by him to facilitate the commission of the crime
or to insure his immunity from capture. In the instant case, other
than the time of the crime, nothing else whatsoever suggests that
the aggravating circumstance of nighttime was deliberately availed
of by appellants. In view of this deficiency, said circumstance should
be disallowed even as, technically, it may have been accepted by
them when they pleaded guilty on arraignment. (People vs. Boyles,
No. L-15308, May 29, 1964, 11 SCRA 88, 94)
Where the darkness of the night was merely incidental to the
collision between two vehicles which caused the heated argument and
the eventual stabbing of the victim, nighttime is not aggravating. To
be aggravating, the prosecution must show that the accused purposely
sought to commit the crime at nighttime in order to facilitate the
achievement of his objectives, prevent discovery or evade capture.
(People vs. Velaga, Jr., G.R. No. 87202, July 23,1991,199 SCRA 518,
523-524)
The information must allege that nighttime was sought for or
taken advantage of by the accused or that it facilitated the
commission of the crime.
The jurisprudence on this subject is to the effect that nocturnity
must have been sought or taken advantage of to improve the chances
of success in the commission of the crime or to provide impunity for
the offenders. The bare statement in the information that the crime
was committed in the darkness of the night fails to satisfy the criterion.
(People vs. Fernandez, No. L-32623, June 29, 1972, 45 SCRA
535, 537)
367
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 6 Nighttime, Uninhabited Place or Band
368
Not aggravating when crime began at daytime.
When the crime was the result of a succession of acts which took
place within the period of two hours, commencing at 5:00 p.m. and
ending at 7:00 p.m., without a moment's interruption in which it can
be said that the thought of nighttime, being the most favorable occasion
for committing the crime, occurred to the accused, there is no
aggravating circumstance of nighttime. (People vs. Luchico, 49 Phil.
689, 697)
The commission of the crime must begin and be accomplished in the
nighttime.
Thus, although the safe was thrown into the bay at night, but the
money, the taking of which constituted the offense, was withdrawn
from the treasury during the daytime, the crime of malversation was
not attended by the aggravating circumstance of nighttime. (U.S. vs.
Dowdell, 11 Phil. 4, 7)
The offense must be actually committed in the darkness of the night.
Thus, when the defendants did not intentionally seek the cover
of darkness for the purpose of committing murder and they were carrying
a light of sufficient brilliance which made it easy for the people
nearby to recognize them (U.S. vs. Paraiso, 17 Phil. 142,146-147), or
when the crime of robbery with homicide was committed at daybreak
when the defendants could be recognized (U.S. vs. Tampacan, 19 Phil.
185, 188), nighttime is not aggravating.
When the place of the crime is illuminated by light, nighttime is not
aggravating.
The fact that the scene of the incident was illuminated by the
light on the street as well as that inside the vehicle of which the victim
was a passenger, negates the notion that accused had especially
sought or had taken advantage of nighttime in order to facilitate the
commission of the crime of theft or for purposes of impunity. (People
vs. Joson, C.A., 62 O.G. 4604)
Although the offense was committed at nighttime, the record
does not show that appellant had sought it purposely or taken advantage
thereof to facilitate the perpetration of the offense. In fact, the
place from which he fired at Laguna seemed to be sufficiently lighted
AGGRAVATING CIRCUMSTANCES Art. 14
Nighttime, Uninhabited Place or Band Par. 6
369
for him to be clearly visible to, as well as recognized by, all of those
who happened to be nearby. (People vs. Bato, G.R. No. L-23405, Dec.
29, 1967, 21 SCRA 1445, 1448)
Nocturnity is not aggravating where there is no evidence that the
accused had purposely sought the cover of the darkness of the night
to commit the crime; nor is there evidence that nighttime facilitated
the commission of the crime, aside from the fact that the scene of the
crime was illuminated. (People vs. Moral, No. L-31139, Oct. 12,1984,
132 SCRA 474, 487. Also, People vs. Turing, G.R. No. 56358, Oct. 26,
1990, 191 SCRA 38, 47; People vs. Aspili, G.R. Nos. 89418-19, Nov.
21, 1990, 191 SCRA 530, 543)
The lighting of a matchstick or use of flashlights does not
negate the aggravating circumstance of nighttime.
It is self-evident that nighttime was sought by appellant to
facilitate the commission of the offense, when all the members of the
household were asleep. The fact that Restituto Juanita hit a matchstick
does not negate the presence of said aggravating circumstance. Thus,
in People vs. Rogelio Soriano, etal., G.R. No. L-32244, June 24,1983,
122 SCRA 740, this Court rejected the contention that nocturnity
could not be appreciated because flashlights were used. (People vs.
Berbal, et.al, G.R. No. 71527, Aug. 10, 1989)
(b) Uninhabited place.
What is uninhabited place?
An uninhabited place is one where there are no houses at all, a
place at a considerable distance from town, or where the houses are
scattered at a great distance from each other.
This aggravating circumstance should not be considered when
the place where the crime was committed could be seen and the voice
of the deceased could be heard from a nearby house. (People vs. Laoto,
52 Phil. 401, 408)
Whether or not the crime committed is attended by this aggravating
circumstance should be determined not by the distance
of the nearest house from 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.
Art. 14
Par. 6
AGGRAVATING CIRCUMSTANCES
Nighttime, Uninhabited Place or Band
That the place is uninhabited is determined, not by the distance
of the nearest house to the scene of the crime, but whether or not
in the place of its commission, there was reasonable possibility of
the victim receiving some help. Thus, the crime is committed in an
uninhabited place where the killing was done during nighttime, in a
sugarcane plantation about a hundred meters from the nearest house,
and the sugarcane in the field was tall enough to obstruct the view of
neighbors and passersby. (People vs. Fausto Damaso, 75 O.G. 4979,
No. 25, June 18, 1979)
The purely accidental circumstance that on the day in question
another banca, namely, that of the witnesses for the prosecution,
was also at sea, is not an argument against the consideration of such
aggravating circumstance. It was difficult for the victim to receive any
help and it was easy for the assailants to escape punishment. (People
vs. Rubia, 52 Phil. 172, 175-176; People vs. Arpa, No. L-26789, April
25,1969, 27 SCRA 1037, 1044)
Uninhabited place is aggravating where the felony was
perpetrated in the open sea, where no help could be expected by
the victim from other persons and the offenders could easily escape
punishment. (People vs. Nulla, No. L-69346, Aug. 31,1987,153 SCRA
471, 483)
The fact that persons occasionally passed in the uninhabited
place and that on the night of the murder another hunting party was
not a great distance away, does not matter. It is the nature of the
place which is decisive. (People vs. Bangug, 52 Phil. 87, 92)
A place about a kilometer from the nearest house or other
inhabited place is considered an uninhabited place. (People vs.
Aguinaldo, 55 Phil. 610, 616; People vs. Mendova, 100 Phil. 811,
818)
With the finding of the body of the victim in a solitary place off
the road and hidden among the trees and tall grasses on a hill, some
500 meters away from the toll gate where help to the victim was difficult
and the escape of the accused seemed easy, it is correct to appreciate
the aggravating circumstance of uninhabited place. (People
vs. Atitiw, C.A., 66 O.G. 4040)
The killing was done in Barrio Makatipo, Novaliches, Caloocan
City, an isolated place that resembled that of an abandoned
370
AGGRAVATING CIRCUMSTANCES
Nighttime, Uninhabited Place or Band
Art. 14
Par. 6
subdivision. The place was ideal not merely for burying the victim
but also for killing him for it was a place where the possibility of the
victim receiving some help from third persons was completely absent.
The accused sought the solitude of the place in order to better attain
their purpose without interference, and to secure themselves against
detection and punishment. (People vs. Ong, No. L-34497, Jan. 30,
1975, 62 SCRA 174, 212-213)
When the victims are the occupants of the only house in the
place, the crime is committed in an uninhabited place.
In the case of People vs. Piring, 63 Phil. 546, where the accused
attacked and killed a couple in their house, the circumstance of
uninhabited place was not taken into consideration as aggravating
circumstance, because it was not proven that there were no houses
near the house of the deceased. The implication is that, if it was
shown that there were no houses there, it would be considered an
uninhabited place, even if there was a house there and the victims
were living in that house.
Solitude must be sought to better attain the criminal purpose.
It must appear that the accused sought the solitude of the place
where the crime was committed, in order to better attain his purpose.
(People vs. Aguinaldo, 55 Phil. 610, 616) The offenders must choose
the place as an aid either (1) to an easy and uninterrupted accomplishment
of their criminal designs, or (2) to insure concealment of
the offense, that he might thereby be better secured against detection
and punishment. (U.S. vs. Vitug, 17 Phil. 1, 20; People vs. Andaya,
No. L-63862, July 31, 1987, 152 SCRA 570, 578)
Hence, this aggravating circumstance is not present even if the
crime was committed in an uninhabited place, if the offended party
was casually encountered by the accused and the latter did not take
advantage of the place or there is no showing that it facilitated the
commission of the crime. (People vs. Luneta, 79 Phil. 815, 818)
The aggravating circumstance of uninhabited place cannot be
considered against the defendants, although the house nearest to the
dwelling of the victim was about a kilometer away, if the defendants
did not select the place either to better attain their object without
interference or to secure themselves against detection and punishment.
(People vs. Deguia, 88 Phil. 520, 526)
371
Art. 14
Par. 6
AGGRAVATING CIRCUMSTANCES
Nighttime, Uninhabited Place or Band
(c) By a band.
What is a band?
Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have
been committed by a band.
The armed men must act together in the commission of the crime.
The mere fact that there are more than three armed men at the
scene of the crime does not prove the existence of a band, if only one of
them committed the crime while the others were not aware of the commission
of the crime. The definition of "by a band" says that the armed
men "shall have acted together in the commission of the offense."
The band must be composed of more than three armed persons.
Hence, even if there are 20 persons, but only 3 are armed, this aggravating
circumstance by a band cannot be considered. (U.S. vs.
Mendigoren, 1 Phil. 658, 659; See also U.S. vs. Melegrito, 11 Phil.
229, 231; People vs. Pakah, 81 Phil. 426, 429; People vs. Ga, G.R. No.
49831, June 27, 1990, 186 SCRA 790, 797; People vs. Lungbos, No.
L-57293, June 21, 1988,162 SCRA 383, 388)
"Stone" is included in the term "arms."
We held in the case of People vs. Bautista (28 SCRA 184) that
there is an intention to cause death if the accused throws a stone at
the victims, thus including stone under the term arms in the phrase
"more than 3 armed malefactors acted together." (People vs. Manlolo,
G.R. No. 40778, Jan. 26, 1989)
If one of the four armed persons is a principal by inducement,
they do not form a band.
What is more, the supposed participation of the petitioner herein,
Modesto Gamara, as denned in the same information, was that of
principal by inducement, which undoubtedly connotes that he has no
direct participation in the perpetration thereof. (Gamara vs. Valero,
No. L-36210, June 25, 1973, 51 SCRA 322, 326)
Note: All the armed men, at least four in number, must take
direct part in the execution of the act constituting the
crime. (Art. 17, paragraph 1, Revised Penal Code)
372
AGGRAVATING CIRCUMSTANCES
Nighttime, Uninhabited Place or Band
Art. 14
Par. 6
When nighttime, uninhabited place, or by a band did not
facilitate the commission of the crime, was not especially
sought for, or was not taken advantage of.
When four armed persons, who casually met another group of
three armed persons in an uninhabited place at nighttime, quarreled
with the latter and, in the heat of anger, the two groups fought against
each other, resulting in the death of one of the three which formed
the other group, nighttime, uninhabited place, and by a band are not
aggravating circumstances.
Reason: When the meeting between the offenders and the
group of the deceased was casual, the offenders could not have
sought for the circumstances of nighttime, uninhabited place and
their forming a band. When the offenders attacked the group of the
deceased in the heat of anger, they could not have taken advantage
of such circumstances. And since they did not afford the offenders
any advantage, such circumstances could not have facilitated the
commission of the crime.
"By a band" is aggravating in crimes against property or against
persons or in the crime of illegal detention or treason.
The aggravating circumstance of by a band is considered in
crimes against property (People vs. Corpus, C.A., 43 O.G. 2249) and
in crimes against persons. (People vs. Laoto, 52 Phil. 401,408; People
vs. Alcaraz, 103 Phil. 533, 549; People vs. Aspili, G.R. Nos. 89418-19,
Nov. 21, 1990, 191 SCRA 530, 543) It was taken into account also
in illegal detention (U.S. vs. Santiago, 2 Phil. 6, 8), and in treason.
(People vs. Manayao, 44 O.G. 4868)
Not applicable to crimes against chastity.
Thus, in the crime of rape committed by four armed persons, this circumstance
was not considered. (People vs. Corpus, C.A., 43 O.G. 2249)
Abuse of superior strength and use of firearms, absorbed in
aggravating circumstance of "by a band."
The aggravating circumstance of taking advantage of their
superior strength and with the use of firearms is absorbed by the
generic aggravating circumstance of the commission of the offense
by a band. (People vs. Escabarte, G.R. No. 42964, March 14, 1988)
373
Art. 14
Par. 7
AGGRAVATING CIRCUMSTANCES
On Occasion of Calamity or Misfortune
"By a band" is inherent in brigandage.
In the crime of brigandage, which is committed by more than
three armed persons forming a band of robbers (Art. 306), the circumstance
that the crime was committed by a band should not be
considered as aggravating, because it is inherent in or is necessarily
included in denning the crime.
"By a band" is aggravating in robbery with homicide.
In the cases of People vs. Sawajan, 53 Phil. 689,693, and People
vs. Uday, 85 Phil. 498, 503, it was held that in the imposition of the
penalty for the crime of robbery with homicide, the aggravating
circumstance that the crime was committed by a band should be
taken into consideration.
Par. 7. — That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemic or
other calamity or misfortune.
Basis of this aggravating circumstance.
The basis of this aggravating circumstance has reference to the
time of the commission of the crime.
Reason for the aggravation.
The reason for the existence of this circumstance is found in the
debased form of criminality met in one who, in the midst of a great
calamity, instead of lending aid to the afflicted, adds to their suffering
by taking advantage of their misfortune to despoil them. (U.S. vs.
Rodriguez, 19 Phil. 150, 157)
Example:
An example of this circumstance is the case of a fireman who
commits robbery in a burned house, or that of a thief who immediately
after a destructive typhoon steals personal property from the
demolished houses.
374
AGGRAVATING CIRCUMSTANCES
Aid of Armed Men, etc.
Art. 14
Par. 8
The offender must take advantage of the calamity or misfortune.
Thus, if the accused was provoked by the offended party to commit
the crime during the calamity or misfortune, this aggravating circumstance
may not be taken into consideration for the purpose of increasing
the penalty because the accused did not take advantage of it.
"Chaotic condition" as an aggravating circumstance.
The phrase "or other calamity or misfortune" refers to other
conditions of distress similar to those precedingly enumerated, that
is, "conflagration, shipwreck, earthquake or epidemic." Hence, chaotic
conditions after liberation is not included under this paragraph.
(People vs. Corpus, C.A., 43 O.G. 2249)
But in the case of People vs. Penjan, C.A., 44 O.G. 3349, the
chaotic condition resulting from the liberation of San Pablo was considered
a calamity.
The development of engine trouble at sea is a misfortune, but
it does not come within the context of the phrase "other calamity or
misfortune," as used in Art. 14, par. 7 of the Revised Penal Code,
which refers to other conditions of distress similar to those precedingly
enumerated therein, namely, "conflagration, shipwreck, earthquake
or epidemic," such as the chaotic conditions resulting from war or
the liberation of the Philippines during the last World War. Clearly,
no condition of great calamity or misfortune existed when the motor
banca developed engine trouble. (People vs. Arpa, No. L-26789, April
25, 1969, 27 SCRA 1037, 1045)
Par. 8. — That the crime be committed with the aid of( 1) armed
men, or (2) persons who insure or afford impunity.
Basis of this aggravating circumstance.
It is based on the means and ways of committing the crime.
Requisites of this aggravating circumstance.
1. That armed men or persons took part in the commission
of the crime, directly or indirectly.
375
Art. 14
Par. 8
AGGRAVATING CIRCUMSTANCES
Aid of Armed Men, etc.
2. That the accused availed himself of their aid or relied upon
them when the crime was committed.
Rule for the application of this circumstance.
The casual presence of armed men near the place where the crime
was committed does not constitute an aggravating circumstance when
it appears that the accused did not avail himself of their aid or rely
upon them to commit the crime.
The armed men must take part directly or indirectly.
The accused stabbed the deceased to death.
"The testimony of the accused, corroborated by that of the
witness for the prosecution, is that the crime was committed by
him (accused) alone, without assistance from any one. It is true
that in the house near the place where the crime was committed
there were ten men armed with daggers, and five without arms, but
these men took no part, directly or indirectly, in the commission of
the crime, and it does not appear that they heard the conversation
which caused the sudden determination on the part of the accused
to kill the deceased. The accused, therefore, did not avail himself of
their aid or rely upon them to commit the crime." (U.S. vs. Abaigar,
2 Phil. 417, 418)
Examples of "with the aid of armed men."
A, in order to get rid of her husband, secured the services of
other Moros by promising them rewards and had them kill her
husband. In accordance with the plan, they armed themselves with
clubs, went to the house of the victim and clubbed him to death
while A held a lighted lamp. A also supplied them with rope with
which to tie her husband. In this case, A committed parricide "with
the aid of armed men." (People vs. Ilane, G.R. No. L-45902, May
31, 1938)
O and L were prosecuted for robbery with rape. It appeared from
their written confessions that they had companions who were armed
when they committed the crime. It was held that they were guilty of
robbery with rape with the aggravating circumstance of aid of armed
men. (People vs. Ortiz, 103 Phil. 944, 949)
376
AGGRAVATING CIRCUMSTANCES
Aid of Armed Men, etc.
Art. 14
Par. 8
Exceptions:
(1) This aggravating circumstance shall not be considered
when both the attacking party and the party attacked were
equally armed. (Albert)
(2) This aggravating circumstance is not present when the
accused as well as those who cooperated with him in the
commission of the crime acted under the same plan and
for the same purpose. (People vs. Piring, 63 Phil. 546, 553;
People vs. Candado, No. L-34089, Aug. 1, 1978, 84 SCRA
508, 524)
"With the aid of armed men" (Par. 8), distinguished from "by
a band." (Par. 6)
By a band requires that more than three armed malefactors shall
have acted together in the commission of an offense. Aid of armed men
is present even if one of the offenders merely relied on their aid, for
actual aid is not necessary.
"Aid of armed men" is absorbed by "employment of a
band."
Thus, it is improper to separately take into account against the
accused the aggravating circumstances of (1) the aid of armed men,
and (2) employment of a band in appraising the gravity of the offense,
in view of the definition of band which includes any group of armed
men, provided they are at least four in number. (People vs. Manayao,
78 Phil. 721, 728)
Note: If there are four armed men, aid of armed men is absorbed
in employment of a band. If there are three armed
men or less, aid of armed men may be the aggravating
circumstance.
"Aid of armed men" includes "armed women."
Aid of armed women is aggravating in kidnapping and serious
illegal detention. (People vs. Licop, 94 Phil. 839, 846)
But see People vs. Villanueva, 98 Phil. 327, where it was opined
that some use of arms or show of armed strength is necessary to guard
377
Art. 14
Par. 9
AGGRAVATING CIRCUMSTANCES
Recidivist
a kidnap victim to prevent or discourage escape and so in a sense,
it may be justly regarded as included in or absorbed by the offense
itself, (p. 340)
Par. 9. — That the accused is a recidivist.
Basis of this aggravating circumstance.
This is based on the greater perversity of the offender, as shown
by his inclination to crimes.
Who is a recidivist?
A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment of another
crime embraced in the same title of the Revised Penal Code. (People
vs. Lagarto, G.R. No. 65833, May 6,1991, 196 SCRA 611, 619)
Requisites:
1. That the offender is on trial for an offense;
2. That he was previously convicted by final judgment of
another crime;
3. That both the first and the second offenses are embraced
in the same title of the Code;
4. That the offender is convicted of the new offense.
"At the time of his trial for one crime."
What is controlling is the time of trial, not the time of the
commission of the crime. It is not required that at the time of the
commission of the crime, the accused should have been previously
convicted by final judgment of another crime.
Meaning of "at the time of his trial for one crime."
The phrase "at the time of his trial" should not be restrictively
construed as to mean the date of arraignment. It is employed in its
general sense, including the rendering of the judgment. It is meant
to include everything that is done in the course of the trial, from
378
AGGRAVATING CIRCUMSTANCES
Recidivist
Art. 14
Par. 9
arraignment until after sentence is announced by the judge in open
court. (People vs. Lagarto, supra)
Held: The accused was not a recidivist. (People vs. Baldera, 86
Phil. 189, 193)
No recidivism if the subsequent conviction is for an offense committed
before the offense involved in the prior conviction.
The accused was convicted of robbery with homicide committed
on December 23,1947. He was previously convicted of theft committed
on December 30, 1947.
Held: The accused was not a recidivist. (People vs. Baldera, 86
Phil. 189)
"Previously convicted by final judgment."
The accused was prosecuted and tried for theft, estafa and
robbery. Judgments for three offenses were read on the same day.
Is he a recidivist? No, because the judgment in any of the first two
offenses was not yet final when he was tried for the third offense.
Sec. 7 of Rule 120 of the Revised Rules of Criminal Procedure
provides that except where the death penalty is imposed, a judgment
in a criminal case becomes final (1) after the lapse of the period for
perfecting an appeal, or (2) when the sentence has been partially or
totally satisfied or served, or (3) the accused has waived in writing
his right to appeal, or (4) the accused has applied for probation. Sec. 6
of Rule 122 of the Revised Rules of Criminal Procedure provides that
"[a]n appeal must be taken within fifteen (15) days from promulgation
or notice of the judgment or order appealed from."
The present crime and the previous crime must be "embraced
in the same title of this Code."
Thus, if the accused had been twice convicted of violation of section
824 of the Revised Ordinances of the City of Manila and subsequently
he was prosecuted for violation of Article 195 of the Revised Penal
Code concerning gambling, he is not a recidivist. (People vs. Lauleco,
C.A., 36 O.G. 956) When one offense is punishable by an ordinance or
special law and the other by the Revised Penal Code, the two offenses
are not embraced in the same title of the Code.
379
Art. 14
Par. 9
AGGRAVATING CIRCUMSTANCES
Recidivist
But recidivism was considered aggravating in a usury case where
the accused was previously convicted of the same offense. Under its
Art. 10, the Revised Penal Code should be deemed as supplementing
special laws of a penal character. (People vs. Hodges, 68 Phil. 178,
188)
Examples of crimes embraced in the same title of the Revised
Penal Code.
Robbery and theft are embraced in Title Ten, referring to crimes
against property. Homicide and physical injuries are embraced in
Title Eight, referring to crimes against persons. The felonies denned
and penalized in Book II of the Revised Penal Code are grouped in
different titles. Title Ten and Title Eight are among them.
There is recidivism even if the lapse of time between two
felonies is more than 10 years.
Recidivism must be taken into account as an aggravating
circumstance no matter how many years have intervened between
the first and second felonies. (People vs. Colocar, 60 Phil. 878, 884;
See also People vs. Jaranilla, No. L-28547, Feb. 22, 1974, 55 SCRA
563, 575, where the accused admitted their previous convictions.)
Pardon does not obliterate the fact that the accused was a
recidivist; but amnesty extinguishes the penalty and its effects.
This is the ruling in the case of U.S. vs. Sotelo, 28 Phil. 147,
160. According to Art. 89, amnesty extinguishes the penalty and all
its effects. There is no such provision with respect to pardon.
Therefore, pardon does not prevent a former conviction from
being considered as an aggravating circumstance.
The accused-appellant admitted during the trial that he was
once convicted of the crime of homicide but he was granted an absolute
pardon therefor. The lower court properly considered recidivism
since a pardon for a preceding offense does not obliterate the fact
that the accused is a recidivist upon his conviction of a second offense
embraced in the same title of the Revised Penal Code. (People
vs. Lacao, Sr., G.R. No. 95320, Sept. 4, 1991, 201 SCRA 317, 330)
380
AGGRAVATING CIRCUMSTANCES
Reiteration or Habituality
Art. 14
Par. 10
Par. 10. — That the offender has been previously punished for
an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which
it attaches a lighter penalty.
Basis of this aggravating circumstance.
The basis is the same as that of recidivism, i.e., the greater
perversity of the offender as shown by his inclination to crimes.
Requisites:
1. That the accused is on trial for an offense;
2. That he previously served sentence for another offense to
which the law attaches an equal or greater penalty, or for
two or more crimes to which it attaches lighter penalty
than that for the new offense; and
3. That he is convicted of the new offense.
The accused was convicted of homicide, less serious physical
injuries, and slight physical injuries, all committed on January 14.
1979. He was found by the trial court to have committed offenses prior
to and after that date, as follows: (1) prior to January, 1979, he was
arrested and accused of the crime of theft; (2) on May 15, 1973, he
was likewise charged for physical injuries but said case was amicably
settled; (3) on January 15,1973, he was likewise charged for the crime
of theft and was convicted of said offense; (4) he was likewise charged
and convicted in another criminal case; (5) he was also charged for
theft but said case was settled amicably; and (6) he was charged and
convicted for theft on October 30,1982. In reiteracion or habituality,
it is essential that the offender be previously punished, that is, he
has served sentence, for an offense in which the law attaches, or
provides for an equal or greater penalty than that attached by law
to the second offense, or for two or more offenses, in which the law
attaches a lighter penalty. The records did not disclose that the
accused has been so previously punished. Reiteracion or habituality
is not attendant. (People vs. Villapando, G.R. No. 73656, Oct. 5,1989,
178 SCRA 341, 355)
"Has been previously punished."
This phrase in paragraph 10 means that the accused previously
served sentence for another offense or sentences for other
381
Art. 14
Par. 10
AGGRAVATING CIRCUMSTANCES
Reiteracion or Habituality
offenses before his trial for the new offense. (See People vs. Abella,
No. L-32205, Aug. 31, 1979, 93 SCRA 25, 48, where the rule was
applied.)
The second requisite is present: (1) when the penalty provided
by law for the previous offense is equal to that for the new
offense; or (2) when the penalty provided by law for the previous
offense is greater; or (3) when the accused served at least two
sentences, even if the penalties provided by law for the crimes
are lighter.
"Punished for an offense to which the law attaches an equal
xxx penalty."
A served sentence for forcible abduction (Art. 342) punishable
by reclusion temporal, that is from 12 years and 1 day to 20 years.
Later, after A was released from prison, he committed homicide (Art.
249) punishable also by reclusion temporal. In fixing the penalty for
homicide, the court will have to consider the aggravating circumstance
of habituality against A.
"Punished for an offense to which the law attaches x x x
greater penalty."
The accused once served sentence for homicide punishable by
a penalty ranging from 12 years and 1 day to 20 years. Now, he
is convicted of falsification punishable by a penalty ranging from
6 years and 1 day to 12 years. Is there reiteracion or habituality
in this case? Yes, because the penalty for homicide for which he
served sentence is greater than that for the new offense (falsification).
Suppose it was falsification first and homicide now? Then, there
is no habituality, because the penalty for the first offense is less than
that for the second offense. The penalty for the first offense must at
least be equal to that for the second offense.
Suppose it was homicide before and homicide now? Then, there
is recidivism, because the first and the second offenses are embraced
in the same title of the Code. Although the law requires only final
judgment in recidivism, even if the convict served sentence for one
offense, there is still recidivism, provided the first and the second
offenses are embraced in the same title of the Code.
382
AGGRAVATING CIRCUMSTANCES
Reiteracion or Habituality
Art. 14
Par. 10
"Punished x x x for two or more crimes to which it attaches
a lighter penalty."
A served 30 days imprisonment for theft; later, he served 2
months for estafa; now he is tried for homicide which is punishable
with reclusion temporal, that is, 12 years and 1 day to 20 years.
Note that for the previous two offenses, the law provides lesser
penalties.
It is the penalty attached to the offense, not the penalty actually
imposed.
Paragraph No. 10 of Art. 14 speaks of penalty attached to the
offense, which may have several periods. Hence, even if the accused
served the penalty of prision mayor in its minimum period and is
now convicted of an offense for which the penalty of prision mayor
maximum is imposed, there is still habituality, provided that the
penalty attached to the two offenses is prision mayor in its full
extent.
Reiteracion or habituality, not always aggravating.
If, as a result of taking this circumstance into account, the
penalty for the crime of murder would be death and the offenses
for which the offender has been previously convicted are against
property and not directly against persons, the court should exercise
its discretion in favor of the accused by not taking this aggravating
circumstance into account. (1 Viada, 310)
Recidivism and reiteracion, distinguished.
The circumstance of reiteracion may be distinguished from that
of recidivism as follows:
(a) In reiteracion, it is necessary that the offender shall have
served out his sentence for the first offense; whereas, in
recidivism, it is enough that a final judgment has been
rendered in the first offense.
(b) In reiteracion, the previous and subsequent offenses must
not be embraced in the same title of the Code; whereas,
recidivism, requires that the offenses be included in the
same title of the Code.
383
Art. 14
Par. 10
AGGRAVATING CIRCUMSTANCES
Reiteracion or Habituality
(c) Reiteracion is not always an aggravating circumstance;
whereas, recidivism is always to be taken into consideration
in fixing the penalty to be imposed upon the accused.
The four forms of repetition are:
1. Recidivism. (Paragraph 9, Art. 14)
2. Reiteracion or habituality. (Paragraph 10, Art. 14)
3. Multi-recidivism or habitual delinquency. (Art. 62, paragraph
5)
4. Quasi-recidivism. (Art. 160)
The first two are generic aggravating circumstances, while the
third is an extraordinary aggravating circumstance. The fourth is a
special aggravating circumstance.
Habitual delinquency.
There is habitual delinquency when a person, within a period of
ten years from the date of his release or last conviction of the crimes
of serious or less serious physical injuries, robbery, theft, estafa or
falsification, is found guilty of any of said crimes a third time or oftener.
(Art. 62, last paragraph) In habitual delinquency, the offender
is either a recidivist or one who has been previously punished for two
or more offenses (habituality). He shall suffer an additional penalty
for being a habitual delinquent.
Quasi-recidivism.
Any person who shall commit a felony after having been convicted
by final judgment, before beginning to serve such sentence, or
while serving the same, shall be punished by the maximum period
of the penalty prescribed by law for the new felony. (Art. 160)
Defendant, while serving sentence in Bilibid for one crime, struck
and stabbed the foreman of the brigade of prisoners. Under Article
160 of the Code, he shall be punished with the maximum period of the
penalty prescribed by the law for the new felony. (People vs. Durante,
53 Phil. 363, 372)
384
AGGRAVATING CIRCUMSTANCES
Price, Reward or Promise
Art. 14
Par. 11
Par. 11. — That the crime be committed in consideration of a
price, reward or promise.
Basis:
This is based on the greater perversity of the offender, as shown
by the motivating power itself.
This aggravating circumstance presupposes the concurrence
of two or more offenders.
When this aggravating circumstance is present, there must
be two or more principals, the one who gives or offers the price or
promise and the one who accepts it, both of whom are principals—to
the former, because he directly induces the latter to commit the crime,
and the latter because he commits it. (1 Viada, 262)
Is this paragraph applicable to the one who gave the price
or reward?
When this aggravating circumstance is present, it affects not only
the person who received the price or the reward, but also the person
who gave it. (U.S. vs. Parro, 36 Phil. 923, 924; U.S. vs. Maharaja
Alim, 38 Phil. 1, 7)
The established rule in Spanish jurisprudence is to the effect
that the aggravating circumstance of price, reward or promise thereof
affects equally the offeror and the acceptor. (People vs. Alincastre,
No. L-29891, Aug. 30, 1971, 40 SCRA 391, 408; People vs. Canete,
No. L-37945, May 28, 1984,129 SCRA 451, 459)
P procured an ignorant man to kill the brother and grandniece of
P for a reward of P60. The ignorant man, following the instruction of
P, killed them. Held: Murder by inducement of a price is committed.
(U.S. vs. Parro, supra)
In the case of U.S. vs. Parro, price was a qualifying aggravating
circumstance.
The aggravating circumstance that the crime was committed
for hire or reward can be applied to the instigator of the crime. (U.S.
vs. Gamao, 23 Phil. 81)
But in the case of People vs. Talledo and Timbreza, 85 Phil.
539, it was held that the aggravating circumstance of price or reward
385
Art. 14
Par. 11
AGGRAVATING CIRCUMSTANCES
Price, Reward or Promise
cannot be considered against the other accused for the reason that it
was not she who committed the crime in consideration of said price
or reward.
If the price, reward or promise is alleged in the information as a
qualifying aggravating circumstance, it shall be considered against all
the accused, it being an element of the crime of murder. In the case of
Talledo and Timbreza, price was considered as a generic aggravating
circumstance only, because it was not alleged to qualify the crime to
murder.
Price, reward or promise must be for the purpose of inducing
another to perform the deed.
The evidence must show that one of the accused used money or
other valuable consideration for the purpose of inducing another to
perform the deed. (U.S. vs. Gamao, 23 Phil. 81)
If without previous promise it was given voluntarily after the
crime had been committed as an expression of his appreciation for
the sympathy and aid shown by other accused, it should not be taken
into consideration for the purpose of increasing the penalty. (U.S. vs.
Flores, 28 Phil. 29, 34)
The evidence shows that there was an offer of a reward by
appellant Pascual Bartolome, and a promise by appellant Santos,
but the evidence is not conclusive that appellant Ben Perlas
participated in the commission of the robbery by reason of such
reward or promise, it appearing that even before the other accused
met with Pascual Bartolome and the other municipal officials who
made the promise, the other accused had already decided to commit
the robbery. No doubt, the reward and the promise aforementioned
must have given the other accused, including appellant Ben
Perlas, further encouragement in the commission of the robbery;
however, in our opinion, for this aggravating circumstance to be
considered against the person induced, the said inducement must
be the primary consideration for the commission of the crime by
him. (People vs. Paredes, Nos. L-19149-50, Aug. 16,1968, 24 SCRA
635,662)
386
AGGRAVATING CIRCUMSTANCES
By Means of Inundation, Fire, etc.
Art. 14
Par. 12
Par. 12. — That the crime be committed by means of
inundation, fire, poison, explosion, stranding of a
vessel or intentional damage thereto, derailment
of a locomotive, or by the use of any other artifice
involving great waste and ruin.
Basis of this aggravating circumstance.
The basis has reference to means and ways employed.
Unless used by the offender as a means to accomplish a
criminal purpose, any of the circumstances in paragraph 12
cannot be considered to increase the penalty or to change
the nature of the offense.
As generic aggravating circumstance.
A killed his wife by means of fire, as when he set their house on fire
to kill her; or by means of explosion, as when he threw a hand grenade
at her to kill her; or by means of poison which he mixed with the food
of his wife. In any of these cases, there is only a generic aggravating
circumstance, because they cannot qualify the crime. The crime committed
is parricide which is already qualified by relationship.
When another aggravating circumstance already qualifies the
crime, any of these aggravating circumstances shall be considered as
generic aggravating circumstance only.
When there is no actual design to kill a person in burning a house, it
is plain arson even if a person is killed.
When the crime intended to be committed is arson and somebody
dies as a result thereof, the crime is simply arson and the act resulting
in the death of that person is not even an independent crime of
homicide, it being absorbed. (People vs. Paterno, et al., 85 Phil.
722)
If death resulted as a consequence of arson committed on any
of the properties and under any of the circumstances mentioned in
Articles 320 to 326, the court shall impose the death penalty. (Art.
320, Revised Penal Code, as amended)
On the other hand, if the offender had the intent to kill the
victim, burned the house where the latter was, and the victim died
387
Art. 14
Par. 12
AGGRAVATING CIRCUMSTANCES
By Means of Inundation, Fire, etc.
as a consequence, the crime is murder, qualified by the circumstance
that the crime was committed "by means of fire." (See Art. 248)
When used as a means to kill another person, the crime is
murder.
The killing of the victim by means of such circumstances as inundation,
fire, poison, or explosion qualifies it to murder. (Art. 248,
Par. 3)
1. "By means of fire"
In a case, the accused had set fire to an automobile under a
building, with the result that the edifice was consumed by fire. One
of the inmates of the house perished in the conflagration.
Held: In order to constitute murder, there should be an actual
design to kill and that the use of fire should be purposely adopted as
a means to that end. (U.S. vs. Burns, 41 Phil. 418, 432)
Hence, if the purpose of the explosion, inundation, fire or poison
is to kill a predetermined person, the crime committed is murder.
Once any of these circumstances is alleged in the information to
qualify the offense, it should not be considered as generic aggravating
circumstance for the purpose of increasing the penalty, because
it is an integral element of the offense.
But if a house was set on fire after the killing of the victim,
there would be two separate crimes of arson and murder or homicide.
(People vs. Bersabal, 48 Phil. 439,441; People vs. Piring, 63 Phil. 546,
552) There would not be an aggravating circumstance of "by means
of fire."
2. "By means of explosion"
What crime is committed if a hand grenade is thrown into the
house where a family of seven persons live, and as a result of the
explosion, the wall of the house is damaged, endangering the lives of
the people there?
The offense is a crime involving destruction. (Art. 324) If one of
the people there died, but there is no intent to kill on the part of the
offender, it will be a crime involving destruction also, but the penalty
will be death. But if there is intent to kill and explosion is used by the
offender to accomplish his criminal purpose, it is murder if the victim
dies as a direct consequence thereof.
388
AGGRAVATING CIRCUMSTANCES
By Means of Inundation, Fire, etc.
Art. 14
Par. 12
3. "By means of derailment of locomotive"
Under Art. 330, which defines and penalizes the crime of damage
to means of communication, derailment of cars, collision or accident
must result from damage to a railway, telegraph or telephone lines.
But this is without prejudice to the criminal liability for other
consequences of criminal act.
(1) What crime is committed if as a result of the derailment
of cars only property is damaged? It is damage to means
of communication under Art. 330.
(2) What is the crime if the death of a person also results
without intent to kill on the part of the offender? It is a
complex crime of damage to means of communication with
homicide. (Arts. 330 and 249 in relation to Arts. 4 and
48)
(3) What is the crime committed, if the death of a person
resulted and there was intent to kill on the part of the
offender? It is murder, because the derailment of cars or
locomotive was the means used to kill the victim. (Art.
248)
(4) Must this aggravating circumstance be considered to raise
the penalty, if it already qualifies the crime to murder? No,
because of Art. 62, par. 1, which provides that when the
aggravating circumstance is included by the law in defining
a crime, it shall not be taken into consideration for the
purpose of increasing the penalty.
It will be noted that each of the circumstances of "fire," "explosion,"
and "derailment of a locomotive" may be a part of the definition
of particular crime, such as, arson (Art. 320), crime involving
destruction (Art. 324), and damages and obstruction to means of
communication. (Art. 330)
In these cases, they do not serve to increase the penalty, because
they are already included by the law in defining the crimes.
Par. 12 distinguished from Par. 7.
Under par. 12, the crime is committed by means of any of such
acts involving great waste or ruin. Under par. 7, the crime is committed
on the occasion of a calamity or misfortune.
389
Art. 14
Par. 13
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Par. 13. — That the act be committed with evident premeditation.
Basis of this aggravating circumstance.
The basis has reference to the ways of committing the crime,
because evident premeditation implies a deliberate planning of the
act before executing it.
Illustration of deliberate planning of the act before executing
it.
Pastor Labutin had planned to liquidate Simplicio Tapulado.
The plan could be deduced from the outward circumstances shown
from the time he walked with Vicente Ompad and Angel Libre (the
triggermen) to the house of Lucio Samar where he caused his coaccused
to be drunk, the breaking out of his plan to kill the victim
to his co-accused at the time when he knew that they were already
drunk, his remark that he had grudge against the victim in reply to
the comment of Vicente Ompad that he had no ill-feeling against him
(victim), his immediate action to supply the ammunition when Vicente
Ompad remarked about the lack of it, and his being always near the
triggermen at the critical moments when the crime was actually to
take place. These circumstances were means which he considered
adequate and effective to carry out the intended commission. He
had sufficient time to reflect and allow his conscience to overcome
his resolution to kill. That Pastor Labutin acted with known
premeditation, is evident indeed. (People vs. Ompad, No. L-23513,
Jan. 31, 1969, 26 SCRA 750, 759)
Evident premeditation may be considered as to principal by
induction.
Thus, when Gil Gamao as far back as March 1907, attempted to
induce Batolinao to kill the priest; in March 1909, two months prior
to the murder, he offered Patpat r*50 to kill the priest; some days
prior to the murder, he said that an anarchistic society had been
formed with the object of killing the friars; and on the afternoon of
May 15, he presided at the meeting held in his own house, where it
was agreed that the priest should be killed and he there deliberately
selected his nephew to commit the crime, and directly induced
him to do it; the crime, in so far as Gil Gamao was concerned, was
390
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Art. 14
Par. 13
committed with known premeditation. (U.S. vs. Gamao, 23 Phil. 81,
96)
Essence of premeditation.
The essence of premeditation is that the execution of the
criminal act must be preceded by cool thought and reflection upon
the resolution to carry out the criminal intent during the space of
time sufficient to arrive at a calm judgment. (People vs. Durante,
53 Phil. 363, 369)
Evident premeditation has been fully established. The commission
of the crime was premeditated and reflected upon and was
preceded by cool thought and a reflection with the resolution to carry
out the criminal intent during a span of time sufficient to arrive at
the hour of judgment. (People vs. Escabarte, No. L-42964, March 14,
1988,158 SCRA 602, 612)
Thus, evident premeditation may not be appreciated absent
any proof as to how and when the plan to kill was hatched or what
time elapsed before it was carried out. (People vs. Penones, G.R. No.
71153, Aug. 16, 1991, 200 SCRA 624, 635)
Neither is it aggravating where the fracas was the result of
rising tempers, not a deliberate plan (People vs. Padrones, G.R. No.
85823, Sept. 13,1990,189 SCRA 496, 511), nor when the attack was
made in the heat of anger. (People vs. Anin, No. L-39046, June 30,
1975, 64 SCRA 729, 734)
It is not aggravating in the absence of evidence showing that the
accused had, prior to the killing, resolved to commit the same, nor is
there proof that the shooting of the victim was the result of meditation,
calculation or resolution, and the deceased was unknown to the
accused before the incident. (People vs. Samonte, Jr., No. L-31225,
June 11, 1975, 64 SCRA 319, 326)
The premeditation must be "evident."
There must be evidence showing that the accused meditated
and reflected on his intention between the time when the crime was
conceived by him and the time it was actually perpetrated. (People
vs. Carillo, 77 Phil. 579) The premeditation must be evident and not
merely suspected. (People vs. Yturriaga, 86 Phil. 534, 538; People vs.
391
Art. 14
Par. 13
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Manangan, No. L-32733, Sept. 11, 1974, 59 SCRA 31, 38-39; People
vs. Lacao, No. L-32078, Sept. 30, 1974, 60 SCRA 89, 95)
Requisites of evident premeditation:
The prosecution must prove —
1. The time when the offender determined to commit the
crime;
2. An act manifestly indicating that the culprit has clung to
his determination; and
3. A sufficient lapse of time between the determination and
execution, to allow him to reflect upon the consequences
of his act and to allow his conscience to overcome the
resolution of his will. (People vs. Lagarto, G.R. No.
65883, May 6, 1991, 196 SCRA 611, 619-620; People vs.
Clamor, G.R. No. 82708, 198 SCRA 642, 655; People vs.
Pacris, G.R. No. 69986, March 5, 1991, 194 SCRA 654,
664; People vs. Iligan, G.R. No. 75369, Nov. 26, 1990,
191 SCRA 643, 653; People vs. Requipo, G.R. No. 90766,
Aug. 13, 1990, 188 SCRA 571, 577 and legions of other
cases)
Example:
U.S. vs. Manalinde
(14 Phil. 77)
Facts: The accused who pleaded guilty confessed that his wife died
about one hundred days before; that he was directed by Datto Mupuck
to go huramentado and to kill the two persons he would meet in the
town; that if he was successful in the matter, Mupuck would give him
a pretty woman on his return; that in order to carry out his intention
to kill two persons in the town of Cotabato, he provided himself with a
kris, which he concealed in banana leaves; that he travelled for a day
and a night from his home; that upon reaching the town, he attacked
from behind a Spaniard, and immediately after, he attacked a Chinaman
who was close by; and that he had no quarrel with the assaulted
persons.
Held: Those facts established the aggravating circumstance of
evident premeditation.
392
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Art. 14
Par. 13
Manalinde illustrates the three requisites of evident premeditation.
First requisite —
On a certain date, Manalinde accepted the proposition that
he would turn huramentado and kill the first two persons he would
meet in the market place. On said date, the offender is said to have
determined to commit the crime.
Second requisite —
He undertook the journey to comply therewith and provided
himself with a weapon. The journey and the carrying of the weapon
are acts manifestly indicating that the offender clung to his determination
to commit the crime.
Third requisite —
After the journey for a day and a night, he killed the victims.
One day and one night constitute a sufficient lapse of time for the
offender to realize the consequences of his contemplated act.
Other illustrative cases.
The circumstance of evident premeditation is present because
on that very Friday afternoon immediately after the incident at the
canteen, appellant Renegado, giving vent to his anger, told his co-employee,
Ramirez, and the security guard, Velasco, that he was going
to kill Lira. That state of mind of appellant was evident once more
when he went to the school dance that same Friday evening and he
asked another security guard if Lira was at the dance. On the following
day, Saturday, appellant met Mrs. Benita Tan to whom he confided
that had he seen Lira the night before he would surely have killed
him. And on Monday morning, knowing Lira's snack time, appellant
armed himself with a knife, proceeded to the canteen at around 9:30
a.m. and seeing the teacher Lira with his back towards him, stabbed
Lira from behind. (People vs. Renegado, No. L-27031, May 31, 1974,
57 SCRA 275, 290)
What else can better portray this circumstance that the frequent
meetings of the four accused at the Barrio Fiesta Restaurant in order
to discuss, lay out the plan, and secure the different paraphernalia
consisting of the rope, icepick, flannel cloth, flashlight and shovel?
Added to this is the careful selection of an "ideal" site for the grissly
393
Art. 14
Par. 13
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
happening. (People vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA
174,215)
The admission of the accused that he had with him a .22
caliber revolver on the afternoon of December 12, 1969; that when
he saw the victim driving his car on P. Paredes Street he followed
him up to the corner of P. Paredes and Lepanto Streets where he
shot the victim eight times suddenly and without any warning,
speaks eloquently of his plan generated by an all-consuming
hatred, to kill the person whom he considered responsible for all his
misfortunes. The lower court did not, therefore, err in considering
the aggravating circumstance of evident premeditation against
the appellant. (People vs. Benito, No. L-32042, Feb. 13, 1975, 62
SCRA 351, 359)
There is evident premeditation where on the night when deceased
slapped the accused and asked him to kneel down, the latter
made it clear that he would avenge his humiliation; when two days
later accused looked inside a bus for the deceased and not finding
him there said that if deceased were there, he had something for him.
Accused found deceased seated in a jeep and stabbed him. (People vs.
Mojica, No. L-30742, April 30, 1976, 70 SCRA 502, 508-509)
The date and time when the offender determined to commit
the crime essential.
The date and, if possible, the time when the offender determined
to commit the crime is essential, because the lapse of time for the
purpose of the third requisite is computed from that date and time.
Second requisite necessary.
The premeditation must be based upon external acts and not
presumed from mere lapse of time. (U.S. vs. Ricafort, 1 Phil. 173,
176)
The criminal intent evident from outward acts must be notorious
and manifest, and the purpose and determination must be plain
and have been adopted after mature consideration on the part of the
persons who conceived and resolved upon the perpetration of the
crime, as a result of deliberation, meditation and reflection sometime
before its commission. (People vs. Zapatero, No. L-31960, Aug. 15,
1974, 58 SCRA 450, 459; U.S. vs. Banagale, 24 Phil. 69, 73)
394
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Art. 14
Par. 13
Thus, although in offender's confession there is a statement
that, on the morning of June 29, when he heard that Calma was at
large, he proposed to kill him, there is an entire absence of evidence
showing that he meditated and reflected on his intention between the
time it was conceived and the time the crime was actually perpetrated.
(People vs. Carillo, 77 Phil. 572)
Second requisite exists.
After the offenders had determined (conceived) to commit the
crime, they manifestly indicated that they clung to their determination
—
(a) When the crime was carefully planned by the offenders.
(b) When the offenders previously prepared the means which
they considered adequate to carry it out. (U.S. vs. Cornejo,
28 Phil. 457)
(c) When a grave was prepared at an isolated place in the
field for the reception of the body of the person whom the
criminals intended to kill. (U.S. vs. Arreglado, 13 Phil.
660)
(d) When the defendants made repeated statements that the
hour of reckoning of the victim would arrive and armed
themselves with deadly weapons. (People vs. Lopez, 69
Phil. 298)
(e) When the defendant commenced to sharpen his bolo on
the afternoon preceding the night of the crime. (U.S. vs.
Liwakas, 17 Phil. 234)
(f) When the defendant, according to his own confession, three
times attempted to take the life of the deceased in order
to be able to marry his widow, with whom he was in love.
(People vs. Ducusin, 53 Phil. 280)
(g) Where the accused repeatedly plotted the commission of
the murder over a period of several weeks and, on at least
two occasions, made preliminary efforts to carry it out.
(People vs. Jaravata, G.R. No. L-22029, August 15, 1967,
20 SCRA 1014)
395
Art. 14
' Par. 13
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Mere threats without the second element does not show
evident premeditation.
(1) A threat to kill, unsupported by other evidence which would
disclose the true criminal state of mind of the accused, will
only be construed as a casual remark naturally emanating
from a feeling of rancor and not a resolution of the character
involved in evident premeditation. (People vs. Fuentesuela,
G.R. No. L-48273, April 22, 1942)
(2) The mere fact that the accused stated in his extrajudicial
confession that as soon as he heard that the deceased had
escaped from the army stockade he prepared to kill him,
is not sufficient to establish evident premeditation. It is
necessary to establish that the accused meditated on his
intention between the time it was conceived and the time
the crime was actually perpetrated. Defendant's proposition
was nothing but an expression of his own determination
to commit the crime which is entirely different from
premeditation. (People vs. Carillo, 77 Phil. 572)
(3) Evident premeditation was not present in the case at bar. It
is true that two days immediately preceding the shooting,
appellant threatened to shoot the deceased and on the eve
of the killing, appellant expressed his intention to finish
him. However, there was no showing, that in between,
appellant made plans or sought the deceased to accomplish
the killing. In fact, the killing happened when appellant
was plowing the field and the deceased unexpectedly
appeared thereat. It is clear that appellant's act of shooting
the deceased was not premeditated. The rule is that the
qualifying circumstance of premeditation is satisfactorily
established only if it is proved that the defendant had
deliberately planned to commit the crime, and had
persistently and continuously followed it, notwithstanding
that he had ample time to allow his conscience to overcome
the determination of his will, if he had so desired, after
meditation and reflection, x x x . This circumstance is not
proven where there is no evidence as to the time when the
defendant decided to kill the victim. (People vs. Sarmiento,
No. L-19146, May 31, 1963, 8 SCRA 263, 267-268; People
vs. Bautista, 79 Phil. 652, 657)
396
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Art. 14 .
Par. 13 '
Existence of ill-feeling or grudge alone is not proof of evident
premeditation.
While the appellant might have nursed a grudge or resentment
against the victim, that circumstance is not a conclusive proof of evident
premeditation. (People vs. Lacao, No. L-32078, Sept. 30, 1974
60 SCRA 89, 95)
It is true that about twelve days before the killing, the accused
tried to injure the victim. He desisted after he was restrained by third
persons who intervened during the altercation. The prosecution's
evidence does not show the steps that the accused took thereafter in
order that he could kill the victim on that fateful hour when the latter
was answering a call of nature on the porch of his house. Possibly,
the killing was actually premeditated but the prosecution's evidence
is not conclusive on the presence of that aggravating circumstance.
(People vs. Manangan, No. L-32733, Sept. 11, 1974, 59 SCRA 31,
39)
The mere fact that after lunch time the accused mauled and
detained the victim and that at around four o'clock, while the latter
was in their custody, he was killed, would not mean that there was
evident premeditation. (People vs. Manzano, Nos. L-33643-44, July
31, 1974, 58 SCRA 250, 261-262)
What is sufficient lapse of time?
1. Evident premeditation was held attendant where the accused
had had three day's time to meditate upon the crime
which he intended to commit, and was not prompted by the
impulse of the moment. (People vs. Lasafin, 92 Phil. 668,
670)
2. The existence of evident premeditation is undeniable.
From the incident that dated back one month previously
when the deceased during a fight, slapped the appellant
and ordered him to kneel down, the humiliation inflicted
him caused him to persist in the thought that one day he
would be avenged. So he made it clear on the very same
evening of that encounter. Two days later, he stepped on
the running board of a bus, peeped inside and inquired
if the deceased was there. When he did not find him, he
made the remark that if he were there, he had something
397
Art. 14
Par. 13
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
for him. Under such a circumstance, the premeditation to
inflict harm is quite evident. (People vs. Mojica, 70 Phil.
502, 508-509)
3. Evident premeditation was attendant where the accused
had one whole day to make the necessary preparations from
the time he conceived the idea of attacking the deceased.
(People vs. Dosal, 92 Phil. 577, 881)
4. Evident premeditation was attendant where the accused
had more than one-half day for meditation and reflection
and to allow his conscience to overcome the resolution of
his will (veneer las determinaciones de la voluntad) had he
desired to hearken to its warnings. (U.S. vs. Gil, 13 Phil.
530, 547; People vs. Diaz, No. L-24002, Jan. 21, 1974, 55
SCRA 178, 188)
5. Four hours that intervened between rage and aggression
of the accused is sufficient time for desistance. (People vs.
Lazada, 70 Phil. 525, 527)
6. When the accused came to know that the deceased delivered
only 100 bundles of corn, he was enraged. That was
3:00 p.m. At 7:00 p.m. of same date, the accused armed
himself with a bolo and lance, went to the house of the
deceased, and killed the latter. The lapse of time of 3 1/2
hours between the plan and the commission of the crime is
sufficient time for the offenders to reflect dispassionately
upon the consequences of their contemplated act. (People
vs. Mostoles, 85 Phil. 883, 892)
7. Evident premeditation was attendant where the accused
apprehended the victims about 10 o'clock in the evening
and the crime was consummated at about 1 o'clock early
the following morning. The accused had sufficient time
to meditate and reflect on the consequences of their act.
(People vs. Berdida, No. L-20183, June 30,1966,17 SCRA
520, 530)
Three hours or less considered sufficient lapse of time.
Evident premeditation preceded the commission of the crime.
The slaying was done about three hours from the time the scheme to
kill was plotted. (People vs. Gausi, G.R. No. L-16498, June 29,1963)
398
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Art. 14
Par. 13
But where the defendant constabulary soldier was rebuked by
his superior at around 7:00 a.m. and, a quarter of an hour later, he
shot to death his superior, there was no premeditation because a
sufficient time did not elapse to allow the conscience of the accused
to overcome the resolution of his will if he desired to hearken to its
warning. (U.S. vs. Blanco, 18 Phil. 206, 208)
The appellant had only about half an hour for meditation
and reflection from the time he left the house, went to his camp,
put on his fatigue uniform, got a garand rifle and returned to said
house, followed the serenaders a short distance and then fired the
two shots. The time was insufficient for full meditation and reflection.
(People vs. Pantoja, No. L-18793, Oct. 11, 1968, 25 SCRA 468,
471)
But in People vs. Dumdum, Jr., No. L-35279, July 30, 1979, 92
SCRA 198, 202, it was held that the killing of the deceased was aggravated
by evident premeditation because the accused conceived of
the assault at least one hour before its perpetration.
However, in the later case of People vs. Crisostomo, No. L-38180,
Oct. 23,1981,108 SCRA 288,297, evident premeditation was rejected
because the accused planned to kill the deceased at 7 o'clock in the
morning and the killing took place at 9 o'clock the same morning. The
accused did not have sufficient time to reflect during the two hours
that preceded the killing.
Why sufficient time is required.
The offender must have an opportunity to coolly and serenely
think and deliberate on the meaning and the consequences of what
he planned to do, an interval long enough for his conscience and
better judgment to overcome his evil desire and scheme. (People vs.
Mendoza, 91 Phil. 58, 64)
Evident premeditation contemplates cold and deep meditation,
and tenacious persistence in the accomplishment of the criminal act.
(People vs. Gonzales, 76 Phil. 473) Mere determination to commit
the crime does not of itself establish evident premeditation for it
must appear, not only that the accused made a decision to commit
the crime prior to the moment of execution, but also that his decision
was the result of meditation, calculation or reflection or persistent
attempt. (People vs. Carillo, 77 Phil. 572; People vs. Sarmiento, No.
L-19146, May 31, 1963, 8 SCRA 263, 268)
399
Art. 14
Par. 13
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
There must be sufficient time between the outward acts and
the actual commission of the crime.
Thus, the mere fact that the accused was lying in wait for his
victim just before the attack is not sufficient to sustain a finding of
evident premeditation, in the absence of proof that he had been lying
in wait for a substantial period of time. (U.S. vs. Buncad, 25 Phil.
530, 539)
But when it appears that the accused borrowed a bolo for the
purpose of committing the crime early in the morning and was lying
in wait for some time before he attacked his victim, evident premeditation
is sufficiently established. (U.S. vs. Mercoleta, 17 Phil. 317,
320)
Conspiracy generally presupposes premeditation.
Where conspiracy is directly established, with proof of the attendant
deliberation and selection of the method, time and means
of executing the crime, the existence of evident premeditation can
be taken for granted. (U.S. vs. Cornejo, 28 Phil. 457, 461; People vs.
Timbang, 74 Phil. 295, 297)
Exception:
But when conspiracy is only implied, evident premeditation
may not be appreciated, in the absence of proof as to how and
when the plan to kill the victim was hatched or what time had elapsed
before it was carried out. (People vs. Custodio, 97 Phil. 698, 704;
People vs. Upao Moro, G.R. No. L-6771, May 28, 1957)
Evident premeditation and price or reward can co-exist.
The aggravating circumstance of price, reward, or promise may
be taken into consideration independently of the fact that premeditation
has already been considered, inasmuch as there exists no incompatibility
between these two circumstances, because if it is certain
that as a general rule price or reward implies premeditation, it is no
less certain that the latter may be present without the former. (U.S.
vs. Robor, 7 Phil. 726, 728)
Premeditation is absorbed by reward or promise. (People vs.
Napenas, G.R. No. L-46314, December 24, 1938)
400
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Art. 14
Par. 13
But this rule is applicable only to the inductor. The mere fact
that another executed the act on the promise of reward does not necessarily
mean that he had sufficient time to reflect on the consequences
of his act. (U.S. vs. Manalinde, 14 Phil. 77, 82)
When victim is different from that intended, premeditation is
not aggravating.
Evident premeditation may not be properly taken into account
when the person whom the defendant proposed to kill was different
from the one who became his victim. (People vs. Mabug-at, 51 Phil.
967, 970; People vs. Guillen, 85 Phil 307, 318; People vs. Hilario, et
al., G.R. No. 128083, March 16, 2001)
Distinguish the ruling in the Timbol case from that in the Guillen
case.
It is true that in the case of People vs. Guillen, 85 Phil. 307, it
was held that when the person killed is different from the one intended
to be killed, the qualifying circumstance of evident premeditation
may not be considered as present; however, in the case of People vs.
Timbol, et al., G.R. Nos. L-47471-47473, August 4,1944, it was held
that evident premeditation may be considered as present, even if a
person other than the intended victim was killed, if it is shown that
the conspirators were determined to kill not only the intended victim
but also any one who may help him put a violent resistance. (People
vs. Ubina, 97 Phil. 515, 535)
It is not necessary that there is a plan to kill a particular
person.
For premeditation to exist, it is not necessary that the accused
planned to kill a particular person.
(1) The criminal intent which was carried out was to kill the
first two persons whom the accused should meet at the
place where he intended to commit the crime. Evident
premeditation was considered against the accused. (U.S.
vs. Manalinde, 14 Phil. 77, 82)
(2) After careful and thoughtful meditation, the accused
decided to kill, at the first opportunity, whatever
individual he should meet from the town of Macabebe,
401
AGGRAVATING CIRCUMSTANCES
Evident Premeditation
Art. 14
Par. 13
(3)
402
on account of the previous illness of his son of cholera
which he attributed to the persons from Macabebe. Held:
Inasmuch as the accused intentionally sought out a
native of the town of Macabebe, a human being, there is
no doubt that, actuated by the impulse of his prejudice
against any individual from Macabebe and obedient to
his criminal resolution seriously conceived and selected
to carry out vengeance, he perpetrated the crime with
premeditation. (U.S. vs. Zalsos and Ragmac, 40 Phil. 96,
103)
A general attack upon a village having been premeditated
and planned, the killing of any individual during the attack
is attended by the aggravating circumstance of evident
premeditation. (U.S. vs. Rodriguez, 19 Phil. 150,154; U.S.
vs. Binayoh, 35 Phil. 23, 30; U.S. vs. Butag, 38 Phil. 746,
747)
Reason for the difference of the rulings.
When the offender decided to kill a particular person and premeditated
on the killing of the latter, but when he carried out his plan
he actually killed another person, it cannot properly be said that he
premeditated on the killing of the actual victim.
But if the offender premeditated on the killing of any person, like
the offender in the Manalinde case who decided to kill the first two
persons he would meet in the market place, it is proper to consider
against the offender the aggravating circumstance of premeditation,
because whoever is killed by him is contemplated in his premeditation.
And where the victim belonged to the class designated by the
accused, although the victim was not previously determined by him,
premeditation is an aggravating circumstance.
In the case of U.S. vs. Zalsos and Ragmac, supra, the victim, a
peddler from the town of Macabebe, belonged to the class designated
by the accused, that is, "persons from Macabebe" to whom he attributed
the existence of a cholera epidemic in his barrio. Such being the
case, any individual from the town of Macabebe was contemplated in
his premeditation.
AGGRAVATING CIRCUMSTANCES
Craft, Fraud or Disguise
Art. 14
Par. 14
Distinguished from the Caranto case.
In the Caranto case, it appears that the victim was also undetermined,
and the threats made by defendant who had lost a fishing
boat was that either he or the thief would be turned into ghost. The
killing of the thief afterwards was held not to be murder qualified
by evident premeditation, because there was merely a threat which
was not of a direct and specific character. (U.S. vs. Caranto, 4 Phil.
256, 257)
Evident premeditation, while inherent in robbery, may be
aggravating in robbery with homicide if the premeditation
included the killing of the victim.
It is inherent in robbery, specially where it is committed by
various persons, because they must have an agreement, they have
to meditate and reflect on the manner of carrying out the crime
and they have to act coordinately in order to succeed. But if there
is evident premeditation not only to steal personal property in the
house of Judge Bautista but also to kill him, it shall be considered
to increase the penalty. (People vs. Valeriano, 90 Phil. 15,34; People
vs. Nabual, No. L-27758, July 14, 1969, 28 SCRA 747, 752)
If there is no evidence that the conspirators previously planned
and agreed to kill the victims, evident premeditation is not aggravating
in robbery with homicide. (People vs. Pulido, 85 Phil. 695,
709)
Where the killing of a person during the commission of robbery
was only an incident, because their original plan was only to rob, and
they killed the deceased when the latter refused to open the "kaha de
yero" and fought with them, this aggravating circumstance should be
disregarded. (People vs. Pagal, No. L-32040, Oct. 25,1977, 97 SCRA
570, 576)
Par. 14. - That (1) craft, (2) fraud, or (3) disguise be employed.
Basis of this aggravating circumstance.
The basis has reference to the means employed in the commission
of the crime.
403
Art. 14
Par. 14
AGGRAVATING CIRCUMSTANCES
Craft, Fraud or Disguise
Application of this paragraph.
This circumstance is characterized by the intellectual or mental
rather than the physical means to which the criminal resorts to carry
out his design. This paragraph was intended to cover, for example, the
case where a thief falsely represents that he is the lover of the servant
of a house in order to gain entrance and rob the owner (astucia);
or where (fraude) A simulates the handwriting of B, who is a friend
of C, inviting the latter, without the knowledge of B, by means of a
note written in such simulated hand, to meet B at the designated
place, in order to give A, who lies in wait at the place appointed, an
opportunity to kill C; or where (disfraz) one uses a disguise to prevent
being recognized. (U.S. vs. Rodriguez, 19 Phil. 150, 155)
Craft (involves intellectual trickery and cunning on the part of the
accused).
Craft involves the use of intellectual trickery or cunning on the
part of the accused. It is not attendant where the accused was practically
in a stupor when the crime was committed. (People vs. Juliano,
No. L-33053, Jan. 28, 1980, 95 SCRA 511, 526)
Craft is chicanery resorted to by the accused to aid in the
execution of his criminal design. It is employed as a scheme in the
execution of the crime. It is not attendant where the regular driver
of the victim feigned illness to enable another driver to drive for the
victim who drove the vehicle first to the house of the regular driver
who said he was already well and so he boarded with his co-accused,
took over the driver's seat, and during the trip shot the victim who
was also on board the vehicle. (People vs. Zea, No. L-23109, June 29,
1984, 130 SCRA 77, 81, 90)
Where four men, having determined to kill a man in an uninhabited
place so that the crime might be less easily discovered,
invited him to go with them on a journey to a distant mountain on
the pretense that they would find there a molave tree from which
flowed a liquid supposed to have a peculiar virtue, and murdered him
in a remote and uninhabited place, the aggravating circumstance of
craft was present and should be taken into account for the purpose
of increasing the penalty. (U.S. vs. Gampoiia, 36 Phil. 817, 818, 820;
People vs. Alcaraz, 103 Phil. 533, 549)
The act of the accused in pretending to be bona fide passengers
in the taxicab driven by the deceased, when they were not so in fact,
404
AGGRAVATING CIRCUMSTANCES
Craft, Fraud or Disguise
Art. 14
Par. 14
in order not to arouse his suspicion, and then killing him, constituted
craft. (People vs. Daos, 60 Phil. 143, 154)
The act of the accused in assuming position of authority, pretending
to be a member of the CID when he was not, to gain entrance and
be able to be with the offended party alone in the latter's house, thus
enabling him to commit acts of lasciviousness against her, constituted
craft. (People vs. Timbol, C.A., 47 O.G. 1869)
Where defendants pretended to be constabulary soldiers to gain
entry into the place of the victims, craft is properly appreciated as an
aggravating circumstance. (People vs. Saquing, No. L-27903, Dec. 26,
1969, 30 SCRA 834, 844)
The act of the accused in brushing the dirt on the pants of the
offended party, which the accused himself had dirtied, and while the
attention of the offended party was centered on the act of the accused, a
confederate of the accused grabbed the wallet of the offended party from
behind, constituted craft. (People vs. Bagtas, C.A., 47 O.G. 1251)
In a case where the defendants asked the offended party to
change a PlO-bill and, when the latter took out his wallet, the defendants
snatched it from the hand of the offended party, it was held that
the crime of robbery was attended by the aggravating circumstance
of craft. (People vs. Mallari, 60 Phil. 400, 402, 405)
Craft was used by the accused in the commission of the offense of
rape when the accused resorted to the use of innocent-looking chocolate
candies which did not arouse the suspicion of the complainant
that they contained deleterious drug, the purpose of the accused in
giving them being to weaken her resistance so that she would not be
able to repulse physically and mentally his sexual assault. (People
vs. Guy, C.A., 64 O.G. 13557)
There is craft where the accused lures out the victim from his
house in order to be killed. (People vs. Barbosa, No. L-39779, Nov. 7,
1978, 86 SCRA 217, 225)
Craft was attendant where all the accused with murder in their
hearts pretended to accompany the victim in a friendly manner in
going home and in order to lure him into a false sense of security and
making him unmindful of the tragedy that would befall him, one of
them even placed his hands on the shoulder of the victim while walking.
(People vs. Molleda, No. L-34248, Nov. 21, 1978, 86 SCRA 667,
705)
405
Art. 14
Par. 14
AGGRAVATING CIRCUMSTANCES
Craft, Fraud or Disguise
The presence of craft cannot be disputed for the appellant had
deceived the victim into coming to her apartment under the pretext
of accompanying the victim to the bank, and played on the victim's
seeming fondness for one Reynaldo Sioson to lure said victim to
the third floor of the apartment where the appellant committed
the crime. The unsuspecting victim found herself caught in the
malevolent trickery practiced by the appellant, the consequence of
which proved fatal. (People vs. Rodriguez, No. L-32512, March 31,
1980, 96 SCRA 722, 738-739)
But craft is not attendant where the unlawful scheme could have
been carried out just the same even without the pretense. (People vs.
Aspili, G.R. Nos. 89418-19, Nov. 21,1990,191 SCRA 530, 543)
Craft, when not an aggravating circumstance.
Where craft partakes of an element of the offense, the same
may not be appreciated independently for the purpose of aggravation.
Vide, Article 62, pars. 1 and 2, Revised Penal Code. Thus, when
the offender never intended to genuinely enter into the transaction
of purchase and sale with the owner of the jeep, to the offender the
deed of sale being a sham, as he did not pay the price thereof, the
fraud takes the place of trespass in the taking of the jeep involved in
the crime of qualified theft committed by him. (People vs. Tiongson,
C.A., 59 O.G. 4521)
Craft is not clearly established where the evidence shows that
the accused and his companions, who came out from behind a patch
of bamboo trees, did not camouflage their hostile intentions at the
incipiency of the attack, as they announced their presence at the
scene of the crime with shouts and gunshots. (People vs. Cunanan,
No. L-30103, Jan. 20, 1977, 75 SCRA 15, 17, 23)
Fraud (insidious words or machinations used to induce the victim
to act in a manner which would enable the offender to carry out his
design).
Where the defendants induced their victims to give up their
arms upon a promise that no harm should be done to them (U.S. vs.
Abelinde, 1 Phil. 568, 574), and when the latter gave up their arms,
the former attacked and killed them, it was held that there was fraud;
and where the defendants, upon the pretext of wanting to buy a bot-
406
AGGRAVATING CIRCUMSTANCES
Craft, Fraud or Disguise
Art. 14
Par. 14
tie of wine, induced the victim to go down to the lower story of his
dwelling where the wine was stored, entered it when the door was
opened to him, and there commenced the assault which ended in his
death, it was also held that there was fraud. (U.S. vs. Bundal, 3 Phil.
89, 90, 98)
Does gaining entrance by pretending to buy cigarettes or to
drink water constitute craft?
To enter the house of Pedro Levantino, one of the accused
shouted from the outside that they wanted to buy cigarettes, which
induced the owner to open the kitchen for them, and one of them
said that they wanted to drink some water which also paved the
way for their intrusion in the house. Once inside, they committed
robbery with rape. It was held that the aggravating circumstance
of craft attended the commission of the crime. (People vs. Napili,
85 Phil. 521, 527, citing U.S. vs. Gampona, 36 Phil. 817, and People
vs. Daos, 60 Phil. 143)
The facts constituting the aggravating circumstance being
similar to those in the case of U.S. vs. Bundal, supra, it should be
fraud.
The accused, stepfather of the offended party, taking advantage
of the absence of the girl's mother, went to the house and took the
young girl away, telling the latter that she was to be taken to her
godmother's house. The accused, however, took the girl to another
house where he ravished her. Held: The accused committed rape,
employing fraud. (People vs. De Leon, 50 Phil. 539, 545)
Hairline distinction between craft and fraud.
There is craft or fraud when by trickery, accused gained entrance
in victim's house. By pretending they had pacific intentions (to
buy chickens) in desiring to enter Argenio's home, they allayed his
suspicions. They gained entrance into the house with his consent
through trickery or deceit. (People vs. Saliling, No. L-27974, Feb. 27,
1976, 69 SCRA 427, 443)
How is craft distinguished from fraud?
When there is a direct inducement by insidious words or machinations,
fraud is present; otherwise, the act of the accused done in
order not to arouse the suspicion of the victim constitutes craft.
407
Art. 14
Par. 14
AGGRAVATING CIRCUMSTANCES
Craft, Fraud or Disguise
Disguise (resorting to any device to conceal identity).
The fact that the defendant had his face blackened in order that
he should not be recognized at the time he committed the crime constitutes
the aggravating circumstance of disguise. (U.S. vs. Cofrada,
4 Phil. 154, 157)
When the defendant covered his face with handkerchief before
committing the crime, the aggravating circumstance of disguise is
present. (People vs. Piring, 63 Phil. 546, 553)
But if in spite of the use of handkerchief to cover their faces, the
culprits were recognized by the victim, disguise was not considered
aggravating. (People vs. Sonsona, G.R. No. L-8966, May 25,1956)
The accused with two others wore masks to cover their faces.
There could have been no other purpose for this but to conceal their
identities particularly for the one who was very much known to the
offended parties. The fact that the mask subsequently fell down thus
paving the way for this one's identification does not render the aggravating
circumstance of disguise inapplicable. (People vs. Cabato,
No. L-37400, April 15,1988, 160 SCRA 98, 110)
In a case where the defendant illegally wore a Constabulary
uniform, it was held that the aggravating circumstance of disguise
was present. (People vs. Gonzalez, 56 Phil. 842 [unrep.])
The use of an assumed name in the publication of a libel constitutes
disguise. (People vs. Adamos, C.A., G.R. No. 43808, Aug. 20,1936)
Disguise, not considered.
It is also worth mentioning that while appellant reportedly had
a sort of a mask and was using sunglasses, these clumsy accouterments
could not constitute the aggravating circumstance of disguise.
Legally, disfraz contemplates a superficial but somewhat effective
dissembling to avoid identification. Here, even if it is true that he assumed
that masquerade, appellant was readily recognizable because
his face could easily be seen together with the identifying feature of
his mustache. (People vs. Reyes, G.R. No. 118649, March 9, 1998)
The purpose of the offender in using any device must be to
conceal his identity.
While it appears that some of the offenders had cloths wrapped
about their heads, it does not appear that this was done as a disguise,
408
AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15
Par. 15. — That (1) advantage be taken of superior strength, or
(2) means be employed to weaken the defense.
Meaning of "advantage be taken."
Note the word "advantage" in this paragraph.
To take advantage of superior strength means to use purposely
excessive force out of proportion to the means of defense available
to the person attacked. (People vs. Cabiling, No. L-38091, Dec. 17,
1976,74 SCRA 285,303, citing Albert's Commentaries on the Revised
Penal Code, pp. 126-127; People vs. Sarabia, No. L-31755, March 31,
1980, 96 SCRA 714, 719-720, citing Cabiling; People vs. Cabato, No.
L-37400, April 15, 1988, 160 SCRA 98, 110, citing Cabiling; People
vs. Carpio, G.R. Nos. 82815-16, Oct. 31, 1990, 191 SCRA 108, 119,
citing Cabato; People vs. Moka, G.R. No. 88838, April 26, 1991, 196
SCRA 378, 387, citing Cabato)
Illustrations of no advantage of superior strength.
(1) One who attacks another with passion and obfuscation
does not take advantage of his superior strength.
409
but was following rather the custom of the country in which they had
been reared. (U.S. vs. Rodriguez, 19 Phil. 150, 156)
The act of the accused in disguising herself by using her husband's
clothes and a hat given to her by her companion before they
continued on their way to the place where she killed the deceased,
was not considered aggravating circumstance of disguise, because
she did it for fear of being attacked on the way. (U.S. vs. Guysayco,
13 Phil. 292, 293, 296)
The malefactors resorted to a disguise. That circumstance
did not facilitate the consummation of the killing. Nor was it
taken advantage of by the malefactors in the course of the assault.
According to the prosecution's version, at the incipiency of the
attack, the accused and his companions did not camouflage their
hostile intentions. They announced their presence at the scene of the
crime with shouts and gunshots. That mode of attack counteracted
whatever deception might have arisen from their disguise. (People
vs. Cunanan, No. L-30103, Jan. 20, 1977, 75 SCRA 15, 23)
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense
(2) This aggravating circumstance does not apply when a
quarrel arose unexpectedly and the fatal blow was struck
at a time when the aggressor and his victim were engaged
against each other as man to man. (U.S. vs. Badines, 4
Phil. 594, 595)
In these two cases, the offenders may or might have superior
strength, but they do not or did not take advantage of it.
Illustrations of abuse of superior strength.
(1) An illustration of the cases which fall within this provision
is where, for example, a strong man has ill-treated a child,
an old or decrepit person, or one weakened by disease, or
where a person's physical strength has been overcome by
the use of drugs or intoxicants. In each of these cases, there
is a marked difference of physical strength between the
offended party and the offender. (U.S. vs. Devela, 3 Phil.
625, 628)
(2) The deceased Tomas Martir was unarmed, under the
influence of liquor. He was much smaller than Navarra.
Navarra's attack came after he (Martir) was pushed
to the wall by Antonio Santiago. Not content with this
and after Martir tried to escape, Virgilio Cruz fired at
him. Not only that, this was followed by two other shots
from Navarra. Since the aggressors were police officers
fully armed, and the deceased was defenseless and
under the influence of liquor, a clear case of abuse of
superiority is present. The two took advantage of these
circumstances to consummate the offense. (People vs.
Navarra, G.R. No. L-25607, October 14,1968, 25 SCRA
491, 497)
(3) The aggravating circumstance of abuse of superior
strength is attendant where the victim who died was an
innocent and tender baby, barely six months old, and the
wounded children were aged five (5) and twelve (12) years
old, because of the marked difference of physical strength
between the offended parties and the offender. (People
vs. Gatcho, No. L-27251, Feb. 26, 1981, 103 SCRA 207,
220)
410
AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15
When the attack was made on the victim alternately, there is no abuse
of superior strength.
Use of superior strength should not be considered even if all
the accused delivered blows upon the victim, because the attack
was made on the victim alternately, one after the other. (People
vs. Narciso, No. L-24484, May 28, 1968, 23 SCRA 844, 865-866)
Abuse of superior strength when a man attacks a woman
with a weapon.
An attack made by a man with a deadly weapon upon an unarmed
and defenseless woman constitutes the circumstance of abuse
of that superiority which his sex and the weapon used in the act afforded
him, and from which the woman was unable to defend herself.
(People vs. Guzman, 107 Phil. 1122, 1127, citing U.S. vs. Camiloy,
36 Phil. 757; U.S. vs. Consuelo, 13 Phil. 612; People vs. Quesada, 62
Phil. 446)
Illustrations:
a. The accused attacked an unarmed 4 feet, 11-inch girl
with a knife. He had abused the superiority which his sex
and weapon employed afforded him, and from which the
deceased would be unable to defend herself. (People vs.
Brana, No. L-29210, Oct. 31, 1969, 30 SCRA 307, 315)
b. The accused was armed while the victim, a married woman,
was unarmed and she guilelessly approached the group of
the accused, without the least inkling that any harm would
befall her, when she was shot in the back after her hands
were tied behind her. Abuse of superiority was employed in
liquidating her. (People vs. Clementer, No. L-33490, Aug.
30, 1974, 58 SCRA 742, 744, 749)
c. The female victim was stabbed to death. Three men
had earlier invaded her house. Her husband was away
fishing with the husband of her sister who was her only
companion and her sister's one-year-old son. Certainly,
an attack by three men against a helpless and defenseless
woman constitutes abuse of superior strength. (People vs.
Patinga, No. L-37912, Jan. 18, 1982, 111 SCRA 52, 58,
62)
411
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense
412
No abuse of superior strength in parricide against the wife.
Abuse of superior strength is inherent in the crime of parricide
where the husband kills the wife. It is generally accepted that the
husband is physically stronger than the wife. (People vs. Galapia,
Nos. L-39303-05, Aug. 1, 1978, 84 SCRA 526, 531)
That the victim is a woman is inherent in parricide.
Abuse of superior strength, however, should not be applied to
the case of a husband who kills his wife, for the reason that sex is
inherent in the crime of parricide. (Decision of the Supreme Court
of Spain of April 28, 1873; People vs. Galapia, 84 SCRA 526)
Evidence of relative physical strength necessary.
But the mere fact that one person was attacked by two aggressors
does not constitute this aggravating circumstance, if the relative
physical strength of the parties does not appear. There must be
evidence that the accused were physically stronger and that they
abused such superiority. (People vs. Bustos, 51 Phil. 385, 392; People
vs. Diokno, 63 Phil. 601,607) The mere fact of there being a superiority
of numbers is not sufficient to bring the case within aggravating
circumstance. (U.S. vs. Devela, supra; People vs. Maloloy-on, G.R.
No. 85246, Aug. 30, 1990, 189 SCRA 250, 258)
Illustrations:
a. The records of the case are bereft of any information with
respect to the physical conditions of both the accused and
the victims. Thus, abuse of superior strength cannot be
considered. (People vs. Cabato, No. L-37400, April 15,1988,
160 SCRA 98, 110)
b. There was error in appreciating the circumstance of
abuse of superior strength. There is no evidence of the
respective or joint participation of the two accused in assaulting
the victim, much less that they took advantage
of their superior strength. (People vs. Maloloy-on, G.R.
No. 85246, Aug. 30, 1990, 189 SCRA 250, 258)
c. The fact that there were two (2) male persons who attacked
the victim does not per se establish that the crime was committed
with abuse of superior strength there being no proof
AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15
of the relative strength of the aggressors and the victim.
(People vs. Carpio, G.R. Nos. 82815-16, Oct. 31,1990, 191
SCRA 108, 119)
When abuse of superior strength is aggravating.
The aggravating circumstance of abuse of superior strength
depends on the age, size and strength of the parties. It is considered
whenever there is a notorious inequality of forces between
the victim and the aggressor, assessing a superiority of strength
notoriously advantageous for the aggressor which is selected or
taken advantage of by him in the commission of the crime. (People
vs. Carpio, supra; People vs. Cabato, supra; People vs. Moka,
supra)
Number of aggressors, if armed, may point to abuse of superior
strength.
In the cases of U.S. vs. Tandoc, 40 Phil. 954,957-958, and People
vs. Caroz, 68 Phil. 521, 527, the greater number of the assaulting
party was considered by the Supreme Court in determining the
circumstance of superior strength. But it will be noted that in those
cases, the accused were armed.
It is manifest that defendants acted with abuse of superior
strength, for whereas the three (3) of them were wielding bolos, the
victim was unarmed and trying to flee. Hence, the crime committed
was murder, qualified by abuse of superior strength. (People vs.
Verzo, G.R. No. L-22517, Dec. 26, 1967, 21 SCRA 1403, 1410)
But in a case where three persons armed with bolos attacked
another who was armed with a revolver, it was held that there was
no abuse of superior strength, as their strength was almost balanced,
a revolver being as effective, if not more so, than three bolos. (People
vs. Antonio, 73 Phil. 421, 424-425)
Similarly, there is no abuse of superior strength where the accused
did not cooperate in such a way as to secure advantage from
their combined strength. The fact that the accused did not conspire
to kill the victim implies that they did not jointly exploit their superior
strength. Numerical superiority does not always mean abuse of
superiority. (People vs. Ybanez, Jr., No. L-30421, March 28, 1974, 56
SCRA 210, 217)
413
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense
414
Abuse of superior strength by numerical superiority.
1. The two accused jumped on the victim as he was wrestling
with their companion who has remained at large. It was
while they had him thus outnumbered that one of the accused
delivered the fatal blow. There was abuse of superior
strength. (People vs. Boyles, No. L-15308, May 29, 1964,
11 SCRA 88, 95)
2. The assailants were four in number and were armed with
bladed instruments. The deceased was alone, unarmed, and
taken by surprise. Abuse of superior strength was properly
considered. (People vs. Casillar, No. L-28132, Nov. 25,1969,
30 SCRA 352, 358)
3. The three assailants are brothers. Alejandro, who was
armed with a bolo (sondang) lay in wait for the victim
and his brother, and they encountered him as they were
fleeing after Joaquin had threatened them. As the victim
retreated, and his brother took refuge in a grassy place,
Joaquin appeared from behind, holding a barbed harpoon
(gata-ao) which he plunged into the victim's back and then
tried to pull it out. While Joaquin was trying to extricate
the harpoon which got stuck because of its hooks, Alejandro
stabbed the victim with his sondang. The victim fell to the
ground. Antonieto, also armed with a sondang, slashed the
prostrate victim in the abdomen. Alejandro and Antonieto
repeatedly stabbed him while Joaquin was pulling out the
harpoon. The victim died in consequence of his numerous
wounds. Abuse of superiority is aggravating. The three
assailants took advantage of their combined strength to
overpower the victim. (People vs. Velez, No. L-30038, July
18, 1974, 58 SCRA 21, 24, 31)
4. There were several assailants who literally ganged up on
the victim. He had to flee because he could not cope with
the successive and simultaneous assaults of his assailants.
Even the armed policeman, who was present at the
scene of the fight, could not break up the fight because
the victim had several adversaries. All that the policeman
could do was to fire his carbine into the air. There was
marked disparity between the strength of the victim and
the strength of the aggressors who, at the last stage of the
AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15
fight, surrounded their quarry, wounded him repeatedly
and left him only when he was sprawled on the ground.
Evidently, the assailants cooperated in such a way as to
derive advantage from their combined strength and to
insure the victim's death. Abuse of superiority was correctly
appreciated.
5. Our jurisprudence is exemplified by the holding that where
four persons attacked an unarmed victim but there was
no proof as to how the attack commenced and treachery
was not proven, the fact that there were four assailants
would constitute abuse of superiority. (People vs. Garcia,
No. L-30449, Oct. 31,1979, 94 SCRA 14, 28, citing People
vs. Lasada, No. 6742, Jan. 26,1912, 21 Phil. 287; U.S. vs.
Baiiagale, No. 7870, Jan. 10, 1913, 24 Phil. 69)
6. Abuse of superiority is attendant where two accused, both
armed with knives, had cooperated in such a way as to secure
advantage from their combined superiority in strength
and took turns in stabbing the victim who was unarmed.
(People vs. Diamonon, No. L-38094, Nov. 7,1979,94 SCRA
227, 239)
7. It is manifest that the accused, together with his co-assailants
who unfortunately have not been apprehended,
took advantage of their superior strength, when the four
of them, two of whom were armed with bladed weapons,
surrounded and stabbed the unarmed, helpless and unsuspecting
victim. Abuse of superior strength is aggravating.
(People vs. Madlangbayan, No. L-33607, Dec. 14,1979, 94
SCRA 679, 686)
8. Given the fact that the victim, himself unarmed, was
simultaneously attacked by the two appellants and the
third accused who has remained at large, all of them with
weapons, they took advantage of superior strength. (G.R.
No. 74736, Feb. 18, 1991, 194 SCRA 120, 128)
9. Advantage of superior strength attends. The number of
the assailants and the firearms and bolos which they used
on the victim show notorious inequality of forces between
the victim and the aggressor. (People vs. Moka, G.R. No.
88838, April 26, 1991, 196 SCRA 378, 386)
415
AGGRAVATING CIRCUMSTANCES
Superior Strength or Means to Weaken Defense
Art. 14
Par. 15
416
There were four (4) accused, relatively of regular, medium
build and size. Two were armed with "guhi" (piece
of bamboo, sharpened or pointed at one end) and stone
and the other two with Indian arrows. The four were carrying
bolos inside a scabbard and tied to the waist. The
victim was unarmed. He had companions but they did
not do anything to help him. Abuse of superior strength
was correctly found to be attendant. (People vs. Penones,
G.R. No. 71153, Aug. 16, 1991, 200 SCRA 624, 635-636)
There is abuse of superior strength when weapon used is out
of proportion to the defense available to the offended party.
Abuse of superior strength is present not only when the offenders
enjoy numerical superiority or there is a notorious inequality of force
between the victim and the aggressor, but also when the offender uses
a powerful weapon which is out of proportion to the defense available
to the offended party. (People vs. Padilla, 233 SCRA 46)
Simultaneous attack by two persons with revolvers against a
defenseless person is aggravated by superior strength.
When two persons took part in the crime armed with bolos or
revolvers and made a simultaneous attack upon a defenseless person,
the aggravating circumstance of abuse of superior strength should
be taken into consideration. (U.S. vs. Bahagale, 24 Phil. 69, 71, 83;
U.S. vs. Abril, 51 Phil. 670, 675; U.S. vs. Lasada, 21 Phil. 287, 291)
In these cases, the two defendants are both guilty as principals.
There is no abuse of superior strength when one acted as
principal and the other two as accomplices.
But when the court finds that one of the three accused committed
the crime as principal and the two as accomplices, abuse of superior
strength cannot be taken into consideration, because it would be
inconsistent. Where abuse of superior strength is to be estimated as
an aggravating circumstance from the mere fact that more than one
person participated in the offense, it must appear that the accused
cooperated together in some way designed to weaken the defense. This
would make them guilty in the character of principals. (People vs.
Cortez, 55 Phil. 143,148-149; Lumiguis vs. People, G.R. No. L-20338,
April 27, 1967, 19 SCRA 842, 846)
10
AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15
When there is an allegation of treachery, superior strength
is absorbed.
Like nighttime, superior strength is absorbed and inherent in
treachery. (People vs. Mobe, 81 Phil. 58, 63; People vs. Redona, 87
Phil. 743, 745; People vs. Renejane, Nos. L-76954-55, Feb. 26, 1988,
158 SCRA 258, 269; People vs. Centeno, G.R. No. 33284, April 20,
1989,172 SCRA 607,612; People vs. Liston, G.R. No. 63396, Nov. 15,
1989,179 SCRA 415, 421)
Abuse of superior strength is aggravating in coercion and
forcible abduction, when greatly in excess of that required
to commit the offense.
Abuse of superior strength may be present in coercion (Art. 286)
or forcible abduction. (Art. 342; People vs. Fernando, C.A., 43 O.G.
1717) Although the commission of the crime of coercion or forcible
abduction presupposes superiority of force on the part of the offenders,
yet when the strength availed of is greatly in excess of that required
for the realization of the offense, as where the offenders were very
much superior to the complainant individually and collectively (cf.
People vs. Dayug, 49 Phil. 423, 427; People vs. Pineda, 56 Phil. 688,
689, 690), abuse of superior strength should be considered for the
purpose of increasing the penalty.
Other crimes in which abuse of superior strength is aggravating.
Abuse of superior strength is aggravating in illegal detention
(Arts. 267 and 268), where six persons took and carried away the
victim from his home (U.S. vs. Santiago, 4 Phil. 168,169); in robbery
with rape, committed by five armed persons (People vs. Macaya, 85
Phil. 540, 541,544); in multiple rape, committed by four men (U.S. vs.
Camiloy, 36 Phil. 757, 758); in robbery with homicide, committed by
three men. (People vs. Boyles, No. L-15308, May 29, 1964, 11 SCRA
88, 91-92, 96)
The circumstance of "by a band" and that of "abuse of superior
strength," distinguished.
The circumstance of abuse of superiority was, however, withdrawn
by the prosecution on the ground that since the offense of
417
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense
robbery with homicide was committed by a band, the element of
cuadrilla necessarily absorbs the circumstance of abuse of superior
strength. We believe that said withdrawal was ill-advised since the
circumstances of band and abuse of superiority are separate and
distinct legal concepts.
The element of band is appreciated when the offense is committed
by more than three armed malefactors regardless of the comparative
strength of the victim or victims. Hence, the indispensable
components of cuadrilla are (1) at least four malefactors, and (2) all
of the four malefactors are armed. On the other hand, the gravamen
of abuse of superiority is the taking advantage by the culprits of their
collective strength to overpower their relatively weaker victim or
victims. Hence, in the latter aggravating factor, what is taken into
account is not the number of aggressors nor the fact that they are
armed, but their relative physical might vis-a-vis the offended party.
(People vs. Apduhan, Jr., No. L-19491, Aug. 30, 1968, 24 SCRA 798,
814-815)
The aggravating circumstance of the commission of the crime by a
band has been established, it appearing that there were more than three
armed malefactors who acted together in the commission of the offense.
(People vs. Escabarte, No. L-42964, March 14, 1988, 158 SCRA 602,
613)
The aggravating circumstance of commission of a crime by a
band was incorrectly appreciated. A band (en cuadrilla) consists of
at least four malefactors who are all armed. When there were only
three perpetrators and two weapons, a kitchen knife and a dagger,
the terrible threesome of the accused did not constitute a band.
(People vs. Ga, G.R. No. 49831, June 2 7 , 1 9 9 0 , 1 8 6 SCRA 790, 797-
798)
Aggravating circumstances absorbing band.
Abuse of superiority absorbs cuadrilla. If treachery absorbs
abuse of superiority and band (U.S. vs. Abelinde, 1 Phil. 568,572) then
it is reasonable to hold that band should not be treated separately and
distinct from abuse of superior strength. The two circumstances have
the same essence which is the utilization of the combined strength of
the assailants to overpower the victim and consummate the killing.
(People vs. Medrana, No. L-31871, Dec. 14, 1981, 110 SCRA 130,
145)
418
AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15
419
The aggravating circumstance of by a band is absorbed in treachery.
(People vs. Ampo-an, G.R. No. 75366, July 4, 1990, 187 SCRA
173,189; People vs. Rojas, Nos. L-46960-62, Jan. 8,1987,147 SCRA
169, 178-179)
Means employed to weaken defense.
The circumstance of employing means to weaken the defense is
illustrated in the case where one, struggling with another, suddenly
throws a cloak over the head of his opponent and while in this situation
he wounds or kills him. (U.S. vs. Devela, supra)
One who, while fighting with another, suddenly casts sand or
dirt upon the latter's eyes and then wounds or kills him, evidently
employs means which weaken the defense of his opponent. (People
vs. Siaotong, G.R. No. L-9242, March 29, 1957)
But the mere fact that a Garand rifle was used in killing the
victim does not necessarily raise the aggravating circumstance of
employing means to weaken the defense. (People vs. Tunhawan, No.
L-81470, Oct. 27, 1988, 166 SCRA 638, 649)
Intoxicating the victim to weaken defense.
This aggravating circumstance exists also when the offender,
who had the intention to kill the victim, made the deceased intoxicated,
thereby materially weakening the latter's resisting power. (People
vs. Ducusin, 53 Phil. 280, 289)
If the state of intoxication is such that the victim cannot put
up any sort of defense — treachery.
If in his intoxicated state it was impossible for the victim to put
up any sort of resistance at the time he was attacked, treachery may
be considered. (People vs. Ducusin, supra)
Applicable only to crimes against persons, etc.
This circumstance is applicable only to crimes against persons,
and sometimes against person and property, such as robbery with
physical injuries or homicide.
Note: In People vs. Guy, supra, employing means to weaken the
defense is not the aggravating circumstance. It is craft.
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
Means to weaken the defense absorbed in treachery.
The aggravating circumstance of employing means to weaken
the defense is absorbed by treachery. (People vs. Tunhawan, No. L-
81470, Oct. 27, 1988, 166 SCRA 638, 649-650)
Par. 16. — That the act be committed with treachery (alevosia).
Basis of this aggravating circumstance.
The basis has reference to the means and ways employed in the
commission of the crime.
Meaning of treachery.
There is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended
party might make. (Art. 14, par. 16, Revised Penal Code; People
vs. Lacao, Sr., G.R. No. 95320, Sept. 4, 1991, 201 SCRA 317, 330;
People vs. Velaga, Jr., G.R. No. 87202, July 23, 1991, 199 SCRA
518,523)
Treachery means that the offended party was not given opportunity
to make a defense. (People vs. Tiozon, G.R. No. 89823, June 19,
1991,198 SCRA 368, 387, citing earlier cases; People vs. Narit, G.R.
No. 77087, May 23, 1991,197 SCRA 334, 351, citing earlier cases)
Treachery attended the shooting of the deceased. The attack
was sudden, unexpected, without warning, and without giving the
victim an opportunity to defend himself or repel the aggression, as, in
fact, the deceased did not sense any danger that he would be shot by
the assailant as there was no grudge or misunderstanding between
them. (People vs. Rey, G.R. No. 80089, April 13,1989,172 SCRA 149,
158)
Rules regarding treachery.
(1) Applicable only to crimes against the person.
This is based on the phrase "crime against the person"
in the definition of treachery.
420
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
(2) Means, methods or forms need not insure accomplishment
of crime.
It is not necessary that the means, methods or forms
employed in the execution of the crime insure its accomplishment,
as the law says, "to insure its execution" only.
(3) The mode of attack must be consciously adopted.
This is based on the phrase "employing means, methods,
or forms in the execution which tend directly and
specially," in the definition of treachery.
Applicable only to crimes against persons.
This circumstance is applicable only to crimes against persons.
It is not necessary that the mode of attack insures the consummation
of offense.
The treacherous character of the means employed in the aggression
does not depend upon the result thereof but upon the means
itself, in connection with the aggressor's purpose in employing it.
Otherwise, there would be no attempted or frustrated murder qualified
by treachery. For this reason, the law does not require that the
treacherous means insure the execution of the aggression, without
risk to the person of the aggressor arising from the defense which
the offended party might make, it being sufficient that it tends to this
end. (People vs. Parana, 64 Phil, 331, 336)
So it has been held that where the accused attacked the offended
party unexpectedly and the wounds inflicted by him upon the latter
would have caused death had not the weapon whereby the same were
inflicted met with an obstacle, such as the ribs, which prevented
its penetrating the lungs and kidneys, alevosia is present and the
defendant is guilty of frustrated murder. (People vs. Reyes, 47 Phil.
635, 639)
Also, where one assaulted another from behind, but failed to
kill the latter because the wound inflicted was not sufficient to cause
death, the attack was characterized by treachery even if the offender
did not attain his end.
421
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
The above illustrations are examples of frustrated murder and
attempted murder, respectively, characterized by treachery. Treachery
was considered, even if the offense was not consummated.
Treachery cannot be presumed.
The suddenness of attack does not, of itself, suffice to support
a finding of alevosia, even if the purpose was to kill, so long as the
decision was made all of a sudden and the victim's helpless position
was accidental. The qualifying circumstance of treachery may not be
simply deduced from presumption as it is necessary that the existence
of this qualifying or aggravating circumstance should be proven as
fully as the crime itself in order to aggravate the liability or penalty
incurred by the culprit. (People vs. Ardisa, No. L-29351, Jan. 23,
1974, 55 SCRA 245, 258; People vs. Narit, G.R. No. 77087, May 23,
1991, 197 SCRA 334, 351; People vs. Tiozon, G.R. No. 89823, June
19,1991,198 SCRA 368, 387-388; People vs. Lubreo, G.R. No. 74146,
Aug. 2, 1991, 200 SCRA 11, 28)
Where no particulars are known as to the manner in which the
aggression was made or how the act which resulted in the death of
the deceased began and developed, it can in no way be established
from mere suppositions that the accused perpetrated the killing
with treachery. The wound in the back might have been the last one
inflicted or might have been inflicted by accident in the course of the
fight. (U.S. vs. Perdon, 4 Phil. 141, 143-144; U.S. vs. Panagilion, 34
Phil. 786, 792-793)
Illustrations:
1. There is no treachery under these circumstances: the assailant
was alone while his victim had four (4) companions
nearby who could respond instinctively upon seeing their
injured companion; an altercation preceded the attack;
and the meeting of the victim and the assailant was only
accidental. (People vs. Velaga, Jr., G.R. No. 87202, July
23, 1991, 199 SCRA 518, 523)
2. Neither is treachery attendant where no witness who
could have seen how the deceased was shot was presented.
(People vs. Tiozon, supra, at 389)
3. Nor is treachery present in these circumstances: the witness
to the attack did not see how it all began and could
422
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
not provide the details on how the initial attack was commenced
and how it developed until the victim fell to the
ground at which time he saw the fallen victim being beaten;
the autopsy report shows no back injury; and the attack
was made in broad daylight, on a public road and in an
inhabited area, with the use of a wooden club, all indicative
of a casual and not a planned encounter. (People vs. Narit,
supra, at 351-352)
4. Neither is the circumstance attendant where the attack
was frontal, indicating that the victim was not totally
without opportunity to defend himself, and all surrounding
circumstances indicate that the attack was the result
of a rash and impetuous impulse of the moment rather
than from a deliberate act of the will. (People vs. Tugbo,
Jr., G.R. No. 75894, April 22, 1991, 196 SCRA 133, 138-
139)
Exceptions:
1. When the victim was tied elbow to elbow, his body with
many wounds and his head cut off, treachery may be
considered, though no witnesses saw the killing. (U.S. vs.
Santos, 1 Phil. 222, 224-225)
2. The killing of a child is murder qualified by treachery, even
if the manner of attack was not shown. (People vs. Laggui,
C.A., 34 O.G. 1708)
3. The Supreme Court in People vs. Retubado, No. L-58585,
162 SCRA 276, 286: Treachery must be appreciated in the
killing of a child even if the manner of attack is not shown.
It exists in the commission of the crime when an adult
person illegally attacks a child of tender years and causes
his death. (Citing People vs. Valerio, Jr., L-4116, Feb. 25,
1982, 112 SCRA 231)
The mode of attack must be consciously adopted.
This means that:
(1) The accused must make some preparation to kill the
deceased in such a manner as to insure the execution of
the crime or to make it impossible or hard for the person
423
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
(2)
424
attacked to defend himself or retaliate (People vs. Tumaob,
83 Phil. 738, 742; People vs. Saez, No. L-15776, March 29,
1961, 1 SCRA 937, 944; People vs. Iligan, G.R. No. 75369,
Nov. 26, 1990, 191 SCRA 643, 653); or
The mode of attack must be thought of by the offender,
and must not spring from the unexpected turn of events.
(People vs. Dauz, C.A., 40 O.G., Sup. 11,107) The mode of
attack could not have been thought of when the decision
to shoot the deceased was sudden, in view of the latter's
flight, and the relative positions of the victim and the killer
were entirely accidental. (People vs. Abalos, 84 Phil. 771,
773)
In the following cases, it was held that there was treachery:
1) The act of shooting the victim at a distance, without the
least expectation on his part that he would be assaulted,
is characterized by treachery. The assailant deliberately
employed a mode of execution which tended directly and
specially to insure the consummation of the killing without
any risk to himself arising from the defense which the victim
could have made. (People vs. Tamani, Nos. L-22160-61,
Jan. 21, 1974, 55 SCRA 153, 175)
2) The killings were attended with the aggravating circumstance
of treachery because the accused made a deliberate,
surprise attack on the victims. They perpetrated the killings
in such a manner that there was no risk to themselves
arising from any defense which the victims might have
made. (People vs. Mori, Nos. L-23511-12, Jan. 31, 1974,
55 SCRA 382, 403-404)
3) The circumstances surrounding the killing of the deceased
show treachery. His hands were raised and he was pleading
for mercy with one of the assailants when another struck
him on the neck with a bolo. The role of the third assailant
of weakening the defense, by disabling the son of the
deceased, was part and parcel of the means of execution
deliberately resorted to by the assailants to insure the assassination
of the deceased without any risk to themselves.
(People vs. Ricohermoso, Nos. L-30527-28, March 29,1974,
56 SCRA 431,437)
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
4) The assailant, in strategically placing himself in a forested
area near the highway and firing at the unsuspecting victim
at a distance of eight meters, employed a mode of execution
that insured the consummation of the killing without any
risk arising from any defense that the victim could have
made. (People vs. Zapatero, No. L-31960, Aug. 15, 1974,
58 SCRA 450, 459)
5) In a sense, there was treachery because the victim, a
woman, was first reduced to helplessness before she was
shot. (People vs. Clementer, No. L-33490, Aug. 30, 1974,
58 SCRA 742, 749)
6) The victim was shot while he was gathering tuba on top
of a coconut tree. He was unarmed and defenseless. He
was not expecting to be assaulted. He did not give any
immediate provocation. The deliberate, surprise attack
shows that Sangalang and his companions employed a
mode of execution which insured the killing without any
risk to them arising from any defense which the victim
could have made. (People vs. Sangalang, No. L-32914, Aug.
30, 1974, 58 SCRA 737, 741)
7) It was treacherous to shoot Cayago at night, while he
was urinating on the porch and when he did not expect
at all that his enemy, Manangan, was only four meters
away aiming a carbine at him. It was an ambuscade.
Manangan resorted to a mode of execution that insured the
consummation of the killing without risk to himself arising
from any defense which the victim could have made. (People
vs. Manangan, No. L-32733, Sept. 11, 1974, 59 SCRA 31,
8) There is treachery where the victim was tied and gagged
before being stabbed. Undisputed facts show that Henry
Chua's hands were tied and his mouth was gagged with a
flannel cloth before he was stabbed twice with an icepick
and buried in a shallow grave near a creek. These facts
portray well that the tied hands of the victim rendered him
defenseless and helpless thereby allowing the accused to
commit the crime without risk at all to their person. (People
vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174, 211)
37)
425
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
9) There was treachery because the five accused suddenly
intercepted the victim while he was on his way to the house
of his cousin. The appellants resorted to a mode of attack
which insured the consummation of the crime without any
risk to themselves. The victim was unarmed and he had
no time to defend himself in view of the suddenness of the
assault and the fact that he was drunk at the time. (People
vs. Pajenado, No. L-26458, Jan. 30, 1976, 69 SCRA 172,
179-180)
10) The attack on the victim was deliberate, sudden and
unexpected and from behind. Most of the wounds sustained
by the victim and which were fatal were found on his back.
All of these are indicative of the fact that the accused
employed means and methods which tended directly and
especially to insure the execution of the offense without
risk to the offenders arising from the defense which the
offended party might have made. (People vs. Palencia, No.
L-38957, April 30,1976, 71 SCRA 679, 689)
11) The victim was clearly not in a position to defend himself
at the time of the attack. He was then on top of a coconut
tree. His assailant was on the ground aiming and firing at
him much as if he were a sitting duck. There was, in other
words, the employment of means or methods or manner
of execution which insured the attacker's safety from any
defensive or retaliatory act on the part of the victim, who
was perched on top of the coconut tree quite helpless.
(People vs. Toribio, G.R. No. 88098, June 26, 1991, 198
SCRA 529, 540)
12) Treachery was correctly appreciated. The accused, armed
with a gun, riding tandem on a motorcycle, suddenly
and without warning shot the victim in the back as the
motorcycle sped by. The victim was then walking along
a road, unsuspecting and unarmed. The motorcycle then
turned back to where the victim lay wounded, and the
accused fired at him once more, again hitting him in the
back. The victim had no effective opportunity to defend
himself and to strike back at the assassin. (People vs.
Clamor, G.R. No. 82708, July 1, 1991, 198 SCRA 642,
654-655)
426
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
13) Treachery is attendant. The accused, after having made
two steps behind the victim, suddenly and unexpectedly,
with the use of a bolo, hacked the deceased at his back
causing a deep wound and fracture of the 5th rib. When
the victim faced the accused, he was again hacked at the
forehead. (People vs. Lubreo, G.R. No. 74146, Aug. 2,1991,
200 SCRA 11, 29)
14) The deceased was stabbed without warning. So sudden and
unanticipated was the attack that the victim was given
no chance to defend himself. Then the accused, although
apparently acting without prior agreement, also instantly
and all together attacked him. Even if their aforesaid
acts were independently performed on their individual
initiatives, such concerted action ensured the commission of
the crime without risk to them arising from any defense or
retaliation that the victim might have resorted to. Treachery
was correctly appreciated against all the accused. (People
vs. Lacao, Sr., G.R. No. 95320, Sept. 4,1991,201 SCRA 317,
330)
When treachery is not present.
1) There was no treachery. The attack was perpetrated in a
frontal encounter, shown by the location of the wounds on
the front part of the victim's body. There were no wounds on
the back. The assailants did not make any deliberate, surprise
attack on the victim. They did not consciously adopt
a treacherous mode of attack. The attack was preceded by
an altercation and on the spur of the moment. (People vs.
Ybanez, Jr., No. L-30421, March 28, 1974, 56 SCRA 210,
217)
2) The trial court correctly held that there was no treachery.
The initial assault on the victim was not made in a sudden
and unexpected manner. The malefactors gave him an
ominous warning of their presence and heralded their entrance
into his house by firing two gunshots at the ground.
They first mauled him presumably in a frontal encounter.
(People vs. Manzano, Nos. L-33643-44, July 31, 1974, 58
SCRA 250, 260)
427
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
3) The accused and his companions did not camouflage their
hostile intentions. They announced their presence at the
scene of the crime with shouts and gunshots. That mode of
attack negated the existence of treachery since the element
of surprise, which marks the presence of treachery, was
absent. (People vs. Cunanan, No. L-30103, Jan. 20, 1977,
75 SCRA 15, 23)
When treachery cannot be considered.
Treachery cannot be appreciated where there is nothing in
the record to show that the accused had pondered upon the mode or
method to insure the killing of the deceased or remove or diminish any
risk to himself that might arise from the defense that the deceased
might make, as when his decision to shoot the victim is sudden,
brought about by a stinging provocation from the latter. (People vs.
Macaso, No. L-30489, June 30,1975, 64 SCRA 659, 666-667)
In the following cases, it was held that there was treachery:
"Inasmuch as Refuerzo was unarmed and utterly defenseless,
he tried to escape through the window. Quirino Ramolete shot him
in that situation. Refuerzo fell into the batalan with three serious
gunshot wounds of entry on his back. Treachery (alevosia) was
manifest in that manner of assault because it insured the killing
without any risk to the assailant." (People vs. Ramolete, et al., 56
SCRA 66)
"When the victim saw appellant hacking her sister, she ran out of
the house and cried for help. Appellant chased her and, upon overtaking
her, struck her on the head." (People vs. Cruz, 109 Phil. 288)
Note: Did the accused consciously adopt that method of shooting
the deceased as the latter "tried to escape through
the window" and of striking the victim on the head while
chasing her? It happened so suddenly that he could not
have thought of that manner of assault.
When there is no evidence that the accused had, prior to the moment
of the killing, resolved to commit the crime, or there is no proof
that the death of the victim was the result of meditation, calculation
or reflection, treachery cannot be considered. (U.S. vs. Balagtas, 19
Phil. 164)
428
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
If the decision to kill was sudden, there is no treachery, even
if the position of the victim was vulnerable, because it was not
deliberately sought by the accused, but was purely accidental. (People
vs. Cadag, et al., G.R. No. L-13830, May 31, 1961)
The reason for those rulings is that the law itself says: "There
is treachery when the culprit employed means, methods or forms of
execution which tend directly and specially to insure the execution
of the crime, without risk to himself." Hence, the mere fact that the
attack was sudden and unexpected does not show treachery, unless
there is evidence that such form of attack was purposely adopted by
the accused. There must be evidence showing that the accused reflected
on the means, methods and forms of killing the victim. (People
vs. Tumaob, supra)
The characteristic and unmistakable manifestation of treachery
is the deliberate, sudden and unexpected attack of the victim from
behind, without any warning and without giving him an opportunity
to defend himself or repel the initial assault.
But mere suddenness of the attack is not enough to constitute
treachery. Such method or form of attack must be deliberately chosen
by the accused. (People vs. Macalisang, G.R. No. L-24546, February
22,1968, 22 SCRA 699, 704)
To sustain a finding of treachery, the means, method or form
of attack must be shown to have been deliberately adopted by the
appellant. (People vs. Caldito, G.R. Nos. 78432-33, Feb. 9,1990,182
SCRA 66, 77, citing People vs. Manalo, 148 SCRA 98, 108)
That the mode of attack was consciously adopted may be inferred from
the circumstances.
The aggravating circumstance of treachery is established where
the evidence showed that one of the accused approached the victim
from behind, encircling his arm in a tight grip around the victim's
neck while his co-accused held the victim's two hands, and as the
victim was thus rendered helpless and unable to defend himself, both
the former and a third co-accused stabbed the victim with the scissor
blades, inflicting upon the victim at least four serious stab wounds,
any one of which could have caused his death. (People vs. Lunar, No.
L-15579, May 29, 1972, 45 SCRA 119, 140)
Treachery attended the killing where the assailants hid behind
a pile of logs under cover of darkness and the victim was approached
429
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
from behind and shot as he turned around. (People vs. Jaravata, No.
L-22029, August 15, 1967, 20 SCRA 1014, 1020)
By their acts of showering the house with bullets, executed in the
darkness of the night, the offenders employed means, methods and
forms in the execution of the crime which tended directly to insure
the execution of their criminal design without risk to themselves
arising from the defense which the occupants of the house might
make. (People vs. Elizaga, No. L-23202, April 30,1968,23 SCRA 449,
463)
If the accused was well hidden behind a tree when he shot the
victim who, unarmed and unaware, had no way of defending himself,
the accused deliberately employed means, methods or forms to
insure the execution of the crime, without risk to himself. (People
vs. Guevarra, G.R. No. L-24371, April 16, 1968, 23 SCRA 58, 72)
In the case of People vs. Dadis, G.R. No. L-21270, Nov. 22,
1966, 18 SCRA 699, 700, 701-702, the defendant also hid behind a
tree and shot at the victim while the latter was running away and
was thus without means of defending himself, but treachery was not
appreciated because the defendant did not purposely take advantage
of the circumstance to kill the victim without risk to himself. He did
so because he was scared, believing that the deceased was armed
with a gun.
Treachery attended. Three men, armed with a knife, crept up
in the dark against a defenseless and unsuspecting victim who was
answering a call of nature. When two of them pinioned the victim's
arms so that their companion could stab him repeatedly and with
impunity, they thereby employed means which assured the execution
of the crime without risk to themselves arising from the defense
that their victim might have made. (People vs. Hernandez, G.R. No.
90641, Feb. 27, 1990, 182 SCRA 794, 799)
Treachery is present. The numerous stab wounds, some of which
were inflicted at the back of the victim, show that the attack was
sudden and brutal. The suddenness of the attack deprived the victim,
a woman, unarmed and alone, the opportunity to run or fight back.
The assailant, a strong young man, did not even suffer any injuries
except for the small wound on his finger inflicted by a bite. Obviously,
apart from using her teeth, the victim could not put up any defense.
(People vs. Badilla, G.R. No. 69317, May 21, 1990, 185 SCRA 554,
570)
430
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
Where the meeting between the accused and the victim is casual
and the attack impulsively done, there is no treachery.
Facts: Upon seeing the accused, the deceased started to run,
whereupon the accused whistled at him. As the deceased ignored the
call and continued to run away, the accused got off from his bicycle
and, from a distance of some fifty meters, fired a shot at the deceased
who was fatally hit. The meeting of the two persons was casual. The
accused fired at his victim impulsively, because the latter ignored the
call of the accused.
Held: Where the meeting between the accused and the victim
was casual and the attack was done impulsively, there is no treachery
even if the attack was sudden and unexpected and while the victim
was running away with his back towards the accused. (People vs.
Calinawan, 83 Phil. 647, 648)
The reason for this ruling is that the accused could not have
made preparation for the attack, the meeting between him and the
deceased being casual, and the means, method and form of attack
could not have been thought of by the accused, because the attack
was impulsively done.
In another case, the victim was sent to the store to buy some
beer. It, therefore, just so happened that he was sent on an errand
at that particular time to that particular place; otherwise, he would
have remained at home. Nobody knew beforehand that he would go to
the store. Not even the appellant nor his deceased brother could have
expected to meet the victim there at that specific moment. Nor could
appellant have foreseen that the victim would be carrying bottles of
beer at the moment that he would attack the latter. The meeting of
the victim and his assailants was casual. Treachery did not attend.
(People vs. Diaz, No. L-75433, Nov. 9, 1988, 167 SCRA 239, 246)
Alevosia cannot be appreciated. The manner in which the
aggression was made or how the act which resulted in the death of
the victim began and developed was not shown. It would appear,
too, that the accused had no opportunity to plan the way, method, or
means with which to execute the felony, as the meeting between the
accused and the deceased was accidental since there is no evidence
that the accused knew beforehand that the deceased would be passing
by the warehouse where they were working at that particular time.
(People vs. Bacho, G.R. No. 66645, March 29, 1989, 171 SCRA 458,
465,466)
431
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
Another reason why treachery cannot be considered is that the
meeting of the victim and the accused was only accidental. (People
vs. Velaga, Jr., G.R. No. 87202, July 23, 1991, 199 SCRA 518, 523)
Attacks showing intention to eliminate risk.
(a) Victim asleep.
Treachery attends where the victim was stabbed
while he was asleep. (People vs. Caringal, G.R. No. 75368,
Aug. 11,1989,176 SCRA 404,419; People vs. Nolasco, No.
L-55483, July 28, 1988, 163 SCRA 623, 629; People vs.
Trinidad, No. L-38930, June 28,1988,162 SCRA 714, 725;
People vs. Reunir, No. L-73605, Jan. 29,1988, 157 SCRA
686,693; People vs. Andres, No. L-75355, Oct. 29,1987,155
SCRA 290, 300; People vs. Perante, Jr., Nos. L-63709-10,
July 16, 1986, 143 SCRA 56, 60; People vs. Miranda, 90
Phil. 91, 96; People vs. Dequina, 60 Phil. 279, 286)
(b) Victim half-awake or just awakened.
Treachery characterized the crime. Even if the
deceased was already awake when the aggression commenced,
and even if there was light, the victim was still
down on his back, still drowsy, and unarmed. He was unaware
of the defendant's intention. The blows were delivered
all of a sudden and without warning. (People vs. Yadaon,
82 Phil. 160, 163)
Treachery attends where the victim had just awakened
when attacked, because he might still be dazed and
unprepared for the attack and would not be in a position
to offer any risk or danger of retaliation to the attacker.
(People vs. Perante, Jr., supra; People vs. Atencio, No. L-
22518, Jan. 17, 1968, 22 SCRA 88, 102; People vs. Avila,
92 Phil. 805, 809)
(c) Victim grappling or being held.
Treachery is present where the assailant stabbed the
victim while the latter was grappling with another, thus
rendering him practically helpless and unable to put up
any defense. (People vs. Lingatong, G.R. No. 34019, Jan.
29, 1990, 181 SCRA 424, 430)
432
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
There is treachery where the victim was stabbed in
a defenseless situation, as when he was being held by the
others while he was being stabbed, as the accomplishment
of the accused's purpose was ensured without risk
to him from any defense the victim may offer. (People vs.
Condemena, G.R. No. L-22426, May 29, 1968, 23 SCRA
910; People vs. Lunar, G.R. No. L-15579, May 29, 1972,
45 SCRA 119) Here, the accused-appellant stabbed the
victim on the chest while his companions held both of the
victim's arms. (People vs. Montejo, No. L-68857, Nov. 21,
1988, 167 SCRA 506, 515)
Attacked from behind.
(1) With a firearm.
Treachery attended the crime, the accused
having shot the victim from behind without warning.
(People vs. Acosta, G.R. No. 70153, July 2,1990;
People vs. Juanga, G.R. No. 83903, Aug. 30, 1990,
189 SCRA 226,233; People vs. Marmita, Jr., G.R. No.
75618, Dec. 29,1989, 180 SCRA 723, 731)
Treachery qualified the crime because, although
the victim was forewarned of his impending death, he
was shot in the back while he was entirely defenseless
and the killers were under no risk whatsoever from
any retaliation the victim might make. (People vs.
Carmina, G.R. No. 81404, Jan. 28, 1991, 193 SCRA
429, 435)
The shooting of Atty. Norberto Maramba was
treacherous. The accused suddenly and without
warning shot him when the latter turned his back
towards the accused and returned to his table to eat.
Atty. Maramba was fatally hit on the back of his
head and fell to the cement floor. Atty. Maramba did
not sense any danger that he would be shot by the
accused considering that he and the accused knew
each other personally and that there was no previous
grudge or misunderstanding between them. (People
vs. LAC, Nos. L-66939-41, Jan. 10, 1987, 147 SCRA
219, 230)
433
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
(2) With a bladed weapon.
There was treachery, as the stabbing was from
behind, done in a sudden and unexpected manner
while the deceased was sitting and his head down on
his hands. (People vs. Delgado, G.R. No. 79672, Feb.
15, 1990, 182 SCRA 343, 351)
Treachery was duly and sufficiently proven. The
victim was suddenly and without warning stabbed
at the back of his nape by the assailant from behind
with a double-bladed knife. (People vs. Melgar, No.
L-75268, Jan. 29, 1988, 157 SCRA 718, 727)
(3) Other modes of armed attack.
Treachery in the commission of the crime was
correctly appreciated. The victim was suddenly
stabbed by the assailant without any warning.
Although he was armed with a gun, he was never
given an opportunity to ward off the assault due to
its suddenness. (People vs. De Mesa, G.R. No. 87216,
July 28, 1990, 188 SCRA 48, 55)
Treachery attended where several accused
took turns in stabbing the victim who was caught
by surprise and did not have time to defend himself.
(People vs. Dollantes, No. L-70639, June 30, 1987,
151 SCRA 592, 607)
There was treachery because at the time of the
attack, the victim was not in a position to defend
himself. After having been maltreated, then stabbed,
and while in flight, he was chased as though he was
a wounded quarry and in that defenseless state was
shot from behind by the assailant. (People vs. Ferrera,
No. L-66965, June 18, 1987, 151 SCRA 113, 139)
There was treachery in the commission of the
crime where the victim was shot to death while he
was lying face down on the floor, without any warning
and thus was not able to defend himself at all. (People
vs. Pecato, No. L-41008, June 18,1987,151 SCRA 14,
28)
434
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
Two policemen reacted to assert their authority
in protecting and covering civilians from the
indiscriminate firing by the accused. Accused instead,
suddenly and without warning, successively shot
them, knowing fully well that they were peace officers.
Although both were armed with their service guns,
they were unable to offer resistance and put up a
defense due to the suddenness and close succession
of the shots. Treachery attended the commission of
the crimes. (People vs. IAC, Nos. L-66939-41, Jan. 10,
1987, 147 SCRA 219, 230)
Attacking the victim suddenly and with a firearm.
(People vs. Rendora, G.R. No. L-14356, Sept. 30,
1959)
Calling the victim to come down from the house
and subjecting him to a volley of shots, causing his
death. (People vs. Mukung, G.R. No. L-2138, March
22, 1950)
Shooting unsuspecting victim who was hit in the
abdomen while he was wheeling around to face the
assailant. (People vs. Noble, 77 Phil. 93)
In all the above cases, the offenders attacked
the victims while the latter were not in a position to
make a defense.
From the circumstances of said cases, the
Supreme Court believed that the offenders purposely
adopted certain means, methods or forms of attack
to insure the execution of the crime without risk to
themselves.
Requisites of treachery:
(1) That at the time of the attack, the victim was not in a position
to defend himself; and
(2) That the offender consciously adopted the particular means,
method or form of attack employed by him.
To constitute treachery, two conditions must be present, to
wit: (1) the employment of means of execution that gave the person
435
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
attacked no opportunity to defend himself or to retaliate; and (2) the
means of execution were deliberately or consciously adopted. (People
vs. Mabuhay, G.R. No. 87018, May 24, 1990, 185 SCRA 675, 680)
In order for treachery to exist, two conditions must concur,
namely: (1) the employment of means, methods or manner of execution
which would insure the offender's safety from any defense or
retaliatory act on the part of the offended party; and (2) such means,
method or manner of execution was deliberately or consciously chosen
by the offender. (People vs. Sabado, No. L-76952, Dec. 22, 1988, 168
SCRA 681, 690; People vs. Rellon, No. L-74051, Nov. 8, 1988, 167
SCRA 75, 77-78; People vs. Marciales, No. L-61961, Oct. 18, 1988,
166 SCRA 436,449; People vs. Estillore, No. L-68459, March 4,1986,
141 SCRA 456, 460)
The victim was not in a position to defend himself.
Treachery is properly appreciated when the victims were made to
lie face down, their hands tied at the back before they were killed (People
vs. Saquing, No. L-27903, Dec. 26,1969,30 SCRA 834,845), or when the
victim was shot from behind while dancing (People vs. Berzuela, G.R. No.
132078, Sept. 25, 2000), or when the victim was shot while blindfolded
(People vs. Jakosalem, G.R. No. 130506, Feb. 28. 2002).
Treachery attended the killing. The victim was totally defenseless.
He was caught by surprise when the assailants, whom he
considered his friends, suddenly attacked him. Without warning, he
was hit in the head, then stabbed in the back. Thus disabled, he was
stabbed in the chest. And even as he ran for his life, he was pursued
and stabbed some more when he stumbled. He never had a chance
to save his life. (People vs. Espinosa, G.R. No. 72883, Dec. 20, 1989,
180 SCRA 393, 400)
The violent death of the victim was accompanied by treachery
where, although there were no eyewitnesses to the actual assault, he
was apparently beaten to death while his hands and feet were tied
with a rope. (People vs. Gapasin, No. L-52017, Oct. 27, 1986, 145
SCRA 178, 194)
Treachery was also present where the assailants made a deliberate,
sudden and surprise attack from behind while the victim
sat defenseless in the driver's seat of his jeep. When he stopped his
jeep, one of the assailants placed a piece of wire around his neck and
436
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
strangled him while the other held him. At that precise moment of
the attack, the victim was not in a position to defend himself and the
accused deliberately and consciously adopted the particular method
or form of attack which was strangulation from behind by one and
holding him by the other beside him. (People vs. Masilang, No. L-
64699, July 11, 1986, 142 SCRA 673, 682)
There is treachery when the offenders made a deliberate surprise or
unexpected attack on the victim.
There was treachery because the brothers made a deliberate
surprise or unexpected assault on Tadia. They literally ambushed
him. They waited for him on the cliff, a high ground which rendered
it difficult for him to flee or maneuver in his defense. Tadia was shot
sidewise while he was ascending the hill or cliff burdened by his food
basket. (People vs. Diaz, No. L-24002, Jan. 21, 1974, 55 SCRA 178,
186)
The accused waited patiently and deliberately at the farmhouse
of the deceased, met her on the road when he saw her coming riding
on a sled, waited by the roadside until the victim passed by and then,
without warning and without giving the victim a chance to escape,
made a sudden and unexpected attack. The unarmed, fifty-six-yearold
woman was absolutely helpless and unable to defend herself from
the overpowering strength of the accused when he stabbed her twice
with a combat bolo. The victim had no opportunity to defend herself
or repel the initial assault. (People vs. Bayocot, G.R. No. 55285, June
28, 1989, 174 SCRA 285, 293)
There is treachery where everyone of the three victims was
completely helpless and defenseless when shot and killed by the
accused with no risk to themselves. The first was completely taken
by surprise when he was shot in the face. The second was lying down
when he was shot in the head. The third was seated when he was shot
in the head and shoulders. None of the three victims had a chance
to resist. (People vs. Mufioz, G.R. Nos. 38969-70, Feb. 9, 1989, 170
SCRA 107, 120)
Treachery was attendant where the victim was stabbed suddenly
and he was totally unprepared for the unexpected attack as he was
dancing at the precise time of the incident. He was given absolutely
no chance to defend himself. (People vs. Acaya, No. L-72998, July 29,
1988,163 SCRA 768, 773)
437
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
There was alevosia where the unarmed and unsuspecting victim
was ambushed in the dark, without any risk to his assailants. (People
vs. Egaras, No. L-33357, July 29, 1988, 163 SCRA 692, 696, citing
earlier cases)
The victim was bringing food items for a noche buena when he
was suddenly attacked by two assailants, one armed with a spear
and the other with a bolo. The attack was so sudden that the victim
had no opportunity to defend himself or to inflict retaliatory blows
on the assailants. He just fell down after the spearing and was then
hacked with the bolo. The killing was characterized by treachery.
(People vs. Bravante, No. L-73804, May 29, 1987, 150 SCRA 569,
576)
There is no treachery when the victim was already defending himself
when he was attacked by the accused.
Where the deceased was suddenly attacked, but he was able to
retreat to avoid being hit by the hacking blows and was hit only when
he was already in the act of defending himself against the attack of
the accused, there is no treachery. (People vs. Diva, No. L-22946,
April 29, 1968, 23 SCRA 332, 340)
Likewise, treachery is not present where the accused and the
victim grappled with each other. (People vs. Butler, No. L-50276, Jan.
27, 1983, 120 SCRA 281, 306)
Does the fact that advantage was taken of relative confusion, so that
the act and identity of the offender would not be detected, and so that
his escape would be facilitated adequately establish treachery?
The Solicitor General in his brief recommends that defendant
be found guilty only of homicide, stating that, in his view, treachery
is not borne out by the evidence. Our consideration, however, of the
facts shown in the record, particularly Rolando Banhao's testimony,
convinces us that treachery has been adequately established. As recounted
by said witness, defendant stabbed the deceased at the time
when, on account of the shower, people were going out of the dance
hall to seek for cover. Advantage was therefore taken by defendant
of the relative confusion created by the shower on the crowd, so that
his act and identity would not be detected by the people in the dance
hall, and so that his escape would be facilitated. (People vs. Tilos,
G.R. No. L-28596, February 21, 1968, 22 SCRA 657, 660-661)
438
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
The reason for the ruling is not in accordance with the second
requisite of treachery, and is completely alien to the definition of the
aggravating circumstance.
Treachery does not connote the element of surprise alone.
Counsel contends that since the deceased had been threatened
since the day before the shooting, he was not caught by surprise at
all. But treachery does not connote the element of surprise alone,
but exists when the offender employs means which tend directly and
specially to insure the execution of the offense, without risk to himself
arising from the defense which the offended party might make. (Art.
14, par. 16, Revised Penal Code) When appellant accosted his victim,
who could have had no idea as to just how the threat to him would be
carried out, and without warning, shot him five times, nothing could
possibly have been done by the latter in his own defense. (People vs.
Casalme, No. L-18033, July 26, 1966, 17 SCRA 717, 720)
The appellant followed the serenaders as they walked, made no
indication that he would shoot, and then suddenly fired from behind,
two shots in rapid succession from a distance of about five meters.
Under the circumstances, clearly there was treachery. (People vs.
Pantoja, No. L-18793, October 11, 1968, 26 SCRA 468, 471)
Mere sudden and unexpected attack does not necessarily
give rise to treachery.
It does not always follow that because the attack is sudden and
unexpected it is tainted with treachery. Indeed, it could have been
done on impulse, as a reaction to an actual or imagined provocation
offered by the victim. (People vs. Sabanal, G.R. Nos. 73486-87, April
18, 1989, 172 SCRA 430, 434, citing People vs. Malazzab, 160 SCRA
123; People vs. Aninon, 158 SCRA 701; People vs. Macaso, 64 SCRA
659; People vs. Ardiza, 55 SCRA 245; People vs. Macalisang, 22 SCRA
699; and People vs. Tumaob, 83 Phil. 738)
When the accused gave the deceased a chance to prepare,
there was no treachery.
When the accused challenged the deceased to a gunfight before
the shooting, the attack was not treacherous even if the shooting
was sudden and the deceased was not prepared because it gave the
439
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
deceased a chance to prepare for the impending attack. (People vs.
Visagar, 93 Phil. 319, 326-327)
No treachery where the attack is preceded by a warning.
And when the attack was frank, made face to face, and the
accused first asked "What did you say?" before starting the aggression,
there is no treachery because that question was already a warning to
the offended party of the hostile attitude of the accused. (People vs.
Luna, 76 Phil. 101, 104)
Calling attention of victim not necessarily a warning.
Treachery in the commission of the crime is clearly established
in this case: the assailant fired two successive shots at the defenseless
victim, a fiscal, while the latter was still seated in his jeep, hitting
him at the neck and lumbar region. The fact that the assailant
called out, "Fiscal" before shooting the victim does not negate the
presence of treachery. The assailant being a hired killer, he wanted
to insure that he was shooting the correct person. When the victim
turned his face to find out who was calling him, the assailants fired
immediately, rendering no opportunity for the victim to defend
himself. (People vs. Magdueno, No. L-68699, Sept. 22, 1986, 144
SCRA 210, 217-218)
No treachery where shooting is preceded by heated discussion.
Facts: After a brief exchange of strong language, the accused
pulled his revolver and fired at the deceased three times successively,
while the latter was absolutely defenseless, as he had no weapon of
any kind whatsoever in his hands at that time.
Held: Since the shooting was preceded by a heated discussion
between the two, it must have placed the deceased on his guard,
and the alleged treachery cannot be legally considered. (People vs.
Gonzales, 76 Phil. 473, 479)
There is no treachery where the commission of the crime was
preceded shortly before by a boxing incident and the victim and his
companions had all the opportunity to insure their safety, immediately
before the attack of the defendants. (People vs. Gupo, G.R. No. 75814,
Sept. 24, 1990, 190 SCRA 7, 19)
440
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
There is no treachery where the assault upon the deceased
was preceded by a heated exchange of words between the accused
and the deceased. It cannot be said that the deceased was caught
completely by surprise when the accused took up arms against him.
(People vs. Rillorta, G.R. No. 57415, Dec. 15, 1989, 180 SCRA 102,
107)
Where the victim had provoked the assailant by hitting not only
him, but also his wife, he should have been sufficiently forwarned
that reprisal might be in the offing. The element of a sudden unprovoked
attack indicative of treachery is therefore lacking. (People vs.
Manlapaz, No. L-27259, Feb. 27, 1974, 55 SCRA 598, 604)
Killing unarmed victim whose hands are upraised is committed with
treachery.
The accused pointed his rifle at the victim at a distance of six
meters and said, "Pardong, stand up, we are going to shoot you." The
victim had his hands upraised, pleading in a loud voice, "Do not kill
me, investigate first what was my fault." The accused shot the victim,
mortally wounding him.
Held: The killing was committed with treachery. (People vs.
Barba, G.R. No. L-7136, Sept. 30, 1955)
Where the victim was shot when his hands were raised, to
show that he would not fight, or because of fright, or to try to ward off
the shots that were to come, he was clearly in a defenseless position.
This circumstance constitutes treachery. (People vs. Castro, G.R. Nos.
L-20555 and L-21449, June 30,1967, 20 SCRA 543, 547)
Treachery was present in this case. The victim was unarmed
and had raised his hands crying and pleading for his life when he was
shot by the assailants. Obviously, the stand taken by the victim posed
no risk to the assailants. (People vs. Jutie, G.R. No. 72975, March
31, 1989, 171 SCRA 586, 595, citing People vs. Lebumfacil, L-32910,
March 28, 1980, 96 SCRA 573; People vs. Lasatin, L-5874, February
11, 1953, 92 Phil. 668)
Killing a woman asking for mercy is committed with treachery.
The accused shot Mrs. Howell while she was pleading for her
daughters: "Maawa na kayo. Huwag po."
441
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
Held: The killing was committed with treachery. (People vs.
Dagundong, G.R. No. L-10398, June 30,1960,108 Phil. 682, 684, 693)
There is treachery in killing a child.
Killing a child is characterized by treachery because the weakness
of the victim due to his tender age results in the absence of any
danger to the accused. (U.S. vs. Oro, 19 Phil. 548, 554)
The killing of a one-year-old child, a six-year-old child, and
a twelve-year-old child is attended with treachery. The killing is
murder even if the manner of attack was not shown. The qualifying
circumstance of treachery exists in the commission of the crime of
murder when an adult person illegally attacks a child of tender years
and causes his death. (People vs. Retubado, G.R. No. 58585, June 20,
1988, 162 SCRA 276; People vs. Valerio, G.R. No. L-4116, February
25, 1982, 112 SCRA 208; U.S. vs. Lansangan, 27 Phil. 474; U.S. vs.
Baul, 39 Phil. 846; People vs. Ganohon, G.R. Nos. 74670-74, April 30,
1991, 196 SCRA 431, 446)
Intent to kill is not necessary in murder with treachery.
Thus, one who struck another with the fist from behind, the blow
landing on the back part of the head, causing the latter to fall backwards,
his head striking the asphalt pavement which caused death
resulting from a fracture of the skull, is guilty of murder although he
did not intend to kill the deceased. The Supreme Court of Spain has
held that there is no incompatibility, moral or legal, between alevosia
and the mitigating circumstance of not having intended to cause so
great an injury. (People vs. Cagoco, 58 Phil. 524, 530)
But intent to kill is necessary in murder committed by means
of fire. (U.S. vs. Burns, 41 Phil. 418, 432-433)
Treachery may exist even if the attack is face to face.
It is not necessary for treachery to be present that the attack
must come from behind the victim.
Treachery should be taken into account even if the deceased was
face to face with his assailant at the time the blow was delivered,
where it appears that the attack was not preceded by a dispute and
the offended party was unable to prepare himself for his defense. (U.S.
vs. Cornejo, 28 Phil. 457, 461)
442
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
The attack was sudden and unexpected to the point of incapacitating
George Ott to repel or escape from it. The offender adopted
a method which tended directly and especially to insure the accomplishment
of his purpose without risk to himself arising from any
defense which the offended party might make. True, the victim and
the accused were face to face when the attack commenced, the first
shot, according to all indications, having hit the victim in the abdomen.
But it is also true that he had just wheeled around to see who
had spoken to him when the defendant opened fire. (People vs. Noble,
77 Phil. 93)
Treachery is present although the shooting was frontal, as
when the attack was so sudden and unexpected that the victim was
not in a position to offer an effective defense. Thus, where the victim
approached the driver of a pickup and, as he approached the pickup,
the victim was met with gunfire which was followed by two more successive
shots, there was treachery. (People vs. Cuadra, No. L-27973,
Oct. 23, 1978, 85 SCRA 576, 595)
Treachery attended where the victim was completely taken by
surprise and shot, where he was seated peacefully eating with his
family. That he was shot face to face did not make the attack any less
treacherous as he was totally taken aback and rendered completely
defenseless when he was shot. (People vs. Liston, G.R. No. 63396,
Nov. 15, 1989, 179 SCRA 415, 421)
Treachery attends although the attack is frontal where the
victim was completely helpless, as when both his hands were held by
the attackers numbering five ganging up on him. (People vs. Solares,
G.R. No. 82363, May 5, 1989, 173 SCRA 203, 208)
Where before the victim was stabbed and hit several times with
hollow blocks on the head, his arms were twisted, rendering him helpless
to defend himself or repel the initial assault, the mode of attack
was deliberately and consciously resorted to insure the commission
of the crime without risk to the assailants arising from the defense
that the victim might put up. (People vs. Paras, No. L-61773, Jan.
31, 1987, 147 SCRA 594, 610)
Flashing the beam of a flashlight on the face of victim.
Where immediately prior to the stabbing, the accused flashed the
beam of his flashlight on the face of his victim, momentarily blinding
443
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
the latter, the attack, though frontal, was sudden and perpetrated
in a manner tending directly to insure its execution, free from any
danger that the victim might defend himself. (People vs. Pongol, C.A.,
66 O.G. 5617)
Treachery must be proved by clear and convincing evidence.
Treachery is not to be presumed or taken for granted from the
mere statement of a witness that "the attack was sudden." There must
be a clear showing from the narration of facts why the attack or assault
is said to be "sudden." The reason for this is that treachery, like any
element of the crime, must be proved by clear and convincing evidence.
(People vs. Santos, No. L-32073, Oct. 23,1978, 85 SCRA 630, 639)
Treachery cannot be presumed; it must be proved by clear and
convincing evidence, or as conclusively as the killing, if such be the
crime, itself. (People vs. Tiozon, G.R. No. 89823, June 19, 1991, 198
SCRA 368, 387-388, citing earlier cases)
Attack from behind is not always alevosia.
The mere fact that the attack was inflicted when the victim had
his back turned will not in itself constitute alevosia. It must appear
that such mode of attack was consciously adopted and the question
of risk to the offender must be taken into account. (People vs. Baldos,
C.A., 34 O.G. 1937)
The fact that the fatal wounds were found at the back of the
deceased does not, by itself, compel a finding of treachery. Such a
finding must be based on some positive proof and not merely by an
inference drawn more or less logically from hypothetical facts. The
facts preceding the actual shooting must be in evidence. (People vs.
Ablao, G.R. No. 69184, March 26, 1990,183 SCRA 658, 668)
The mere fact that the victim had a stab wound at the back is
not indicative of alevosia, where the deceased had sustained two (2)
other stab wounds at the front, and the evidence clearly shows that
the stab wound at the back was the last to be inflicted. (People vs.
Bacho, G.R. No. 66645, March 29, 1989, 171 SCRA 458, 466)
The fact that the injuries of the victim were inflicted from behind
as the latter was running away does not necessarily establish
treachery where it does not appear that the assailant purposely
chose to employ such means of attack so that there would be no risk
444
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
to himself from any defense which the offended party might make.
(People vs. Besana, Jr., No. L-26194, May 19,1975, 64 SCRA 84, 88,
citing People vs. Tumaob, 83 Phil. 742)
Must treachery be present in the beginning of the assault?
It depends upon the circumstances of the case.
It must be shown that the treacherous acts were present and
preceded the commencement of the attack which caused the injury
complained of. (U.S. vs. Balagtas, 19 Phil. 164, 172)
Notwithstanding that the shooting was sudden and unexpected
and committed on a helpless victim, in the absence of a showing
that such mode of attack was adopted consciously and that the
assailant knowingly intended to ensure the accomplishment of his
criminal purpose, and where the shooting was only an aftermath of
a mauling, kicking, and boxing incident, treachery did not attend.
It is an established rule that treachery must be present from the
commencement of the attack. (People vs. Tapeno, No. L-33573, Aug.
29,1988,164 SCRA 696, 703)
Even though in the inception of the aggression which ended in
the death of the deceased, treachery was not present, if there was a
break in the continuity of the aggression and at the time the fatal wound
was inflicted on the deceased he was defenseless, the circumstance of
treachery must be taken into account. (U.S. vs. Baluyot, 40 Phil. 385,
395)
Treachery need not exist in the beginning of the assault if the
victim was first seized and bound and then killed. (People vs. Canete,
44 Phil. 478, 483)
U.S. vs. Balagtas
(19 Phil. 164)
Facts: The accused knocked down the victim, striking him while
on the ground. Then, the accused threw him into the water, face downward,
while he was still alive in a helpless and defenseless condition.
Held: The knocking down of the victim, striking him on the
ground, and throwing him into the water constituted one and the same
attack. One continuous attack cannot be broken up into two or more
parts and made to constitute separate, distinct, and independent attacks
so that treachery may be injected therein.
445
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
Note: In this case, there was no treachery at the inception of the
attack.
Also, even if the deceased was shot while he was lying wounded
on the ground, it appearing that the firing of the shot was a mere
continuation of the assault in which the deceased was wounded, with
no appreciable time intervening between the delivery of the blows and
the firing of the shot, it cannot be said that the crime was attended
by treachery. (People vs. Peje, 99 Phil. 1052 [Unrep.])
If the wounding of the victim while lying on the ground was
merely incidental to the ensuing pursuit, not intended to ensure the
safety of the attackers themselves, there is no treachery. (People vs.
Clemente, No. L-23463, September 28, 1967, 21 SCRA 261, 270)
People vs. Canete
(44 Phil. 478)
Facts: The accused assaulted the deceased with a knife and,
in the course of the fight which ensued, inflicted a serious cut on his
thigh. Upon receiving the wound, the deceased turned and fled, and
was immediately pursued by the accused. After going a short distance,
the deceased fell to the ground face downwards; and before he could
recover his equipoise and resume his flight, the accused ran up and
delivered a fatal thrust with his knife in the back of the deceased.
Held: That as the assault was not characterized by alevosia in its
inception and the aggression was continuous until the consummation
of the deed, the offense constituted simple homicide and not murder.
Canete could not have consciously adopted that method of attack,
that is, stabbing the deceased in the back when the latter was in a
helpless condition, since the assault began face to face and it was only
when the deceased turned around and ran away that their relative
positions changed. And as the aggression was continuous, Canete had
no time to prepare for, or even to think of, that method of attack.
U.S. vs. Baluyot
(40 Phil. 385)
Facts: The accused entered the office of the governor of Bataan
when the latter was sitting on a chair behind his desk. The accused approached
the desk and upon reaching a position directly in front of the
governor, spoke certain words. Upon discovering that the governor was
446
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
unarmed, the accused drew his own weapon and fired. The bullet fired
entered in the frontal region of the right shoulder blade of the governor
and inflicted a wound of minor importance. The governor immediately
arose. He escaped in the direction to his left by way of the space between
the left corner of his desk and the wall nearby, leading into a corridor.
The accused meanwhile turned somewhat to his right and advanced
slightly in the direction taken by the governor who was running away.
The accused fired again at the governor, hitting the latter in the region
of the right shoulder blade and passing through the body, an inch or
two from the wound made by the first shot. The governor continued his
flight along the corridor and took refuge in a closet at the end of the
corridor. Once within, he shut the door and placed himself in a position
to obstruct the entrance of his pursuer, who vainly attempted to open
the door. The governor screamed for help. This time, the accused who
was outside the closet stopped for a moment and judging the position
of the governor's head from the direction of the sound emitted, fired
his revolver in the direction indicated. The bullet passed through the
panel of the door and struck the governor in the forward part of the
head near and above the temple. This wound was necessarily fatal.
Held: The entire assault from the beginning until the second shot
was fired must be considered continuous and that the second shot was
fired while the victim was endeavoring to flee to a place of safety.
Even supposing that alevosia had not been present in the beginning
of the assault, it would be necessary to find this element present
from the manner in which the crime was consummated.
In the closet with the door shut, it was impossible for the governor
to see what his assailant was doing or to make any defense whatever
against the shot directed through the panel of the door. It was as if the
victim had been bound or blind-folded, or had been treacherously attacked
from behind in a path obscured by the darkness of the night.
When the second shot was fired, the deceased was fleeing away
and entirely defenseless; but since the entire assault from the beginning
up to that time was continuous and that the assault was
begun without treachery, the Supreme Court did not consider the
second wound as having been inflicted with treachery. Moreover,
the second wound was not fatal, like the first wound. It was the
third wound in the head which caused the death of the victim. The
crime of murder was consummated with the infliction of the third
wound.
But before the third wound was inflicted by the accused, he had
stopped for sometime. This fact is deducible from the circumstances
447
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
that the accused attempted vainly to open the door of the closet; and
that when he failed, he judged the position of the head of the governor
before firing his revolver. Evidently, a certain period of time must
have elapsed in doing all of these acts. Because of that interruption,
the assault was not continuous up to the moment when the fatal blow
was inflicted treacherously. During the period of interruption, the
accused was able to think and even to make preparation for a method
or form of attack that insured the execution of the crime without risk
to himself.
Summary of the rules.
(1) When the aggression is continuous, treachery must be present
in the beginning of the assault. (People vs. Canete, supra)
(2) When the assault was not continuous, in that there was
an interruption, it is sufficient that treachery was present
at the moment the fatal blow was given. (U.S. vs. Baluyot,
supra)
In treachery, it makes no difference whether or not the victim
was the same person whom the accused intended to kill.
As the appellant committed the act with intent to kill and with
treachery, the purely accidental circumstance that as a result of the
shots, a person other than the one intended was killed, does not modify
the nature of the crime nor lessen his criminal responsibility, and he
is responsible for the consequences of his acts. (People vs. Guevarra,
No. L-24371, April 16, 1968, 23 SCRA 58, 72)
That another person, and not the victim, was the intended victim
is not incompatible with the existence of treachery. Treachery may be
taken into account even if the victim of the attack was not the person
whom the accused intended to kill. (People vs. Trinidad, No. L-38930,
June 28, 1988, 162 SCRA 714, 725)
Treachery, whenever present in the commission of a crime,
should be taken into account no matter whether the victim of the
treacherous attack was or was not the same person whom the accused
intended to kill. (People vs. Mabug-at, 51 Phil. 967, 970-971; People
vs. Guillen, 85 Phil. 307, 318)
The reason for this rule is that when there is treachery, it is
impossible for either the intended victim or the actual victim to defend
448
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
himself against the aggression. (People vs. Andaya, C.A., 40 O.G.
Sup. 12,141)
When treachery is not to be considered as to the principal
by induction.
When it is not shown that the principal by induction directed
or induced the killer of the deceased to adopt the means or methods
actually used by the latter in accomplishing the murder, because the
former left to the latter the details as to how it was to be accomplished,
treachery cannot be taken into consideration as to the principal by
induction. It shall aggravate the liability of the actual killer only.
(U.S. vs. Gamao, 23 Phil. 81, 96) The ruling is based on Art. 62.
Treachery, abuse of superior strength, and means employed
to weaken the defense, distinguished.
Any one of these aggravating circumstances may facilitate the
commission of the crime.
In treachery, means, methods or forms of attack are employed
by the offender to make it impossible or hard for the offended party
to put up any sort of resistance. (People vs. Ducusin, 53 Phil. 280,
289-290; People vs. Tumaob, 83 Phil. 738)
In abuse of superior strength, the offender does not employ
means, methods or forms of attack; he only takes advantage of his
superior strength.
In means employed to weaken the defense, the offender, like in
treachery, employs means but the means employed only materially
weakens the resisting power of the offended party.
When there is conspiracy, treachery is considered against
all the offenders.
Treachery should be considered against all persons participating
or cooperating in the perpetration of the crime, except when there
is no conspiracy among them. Hence, if there was no conspiracy even
if two accused helped each other in attacking the deceased, only the
one who inflicted the wound upon the deceased while the latter was
struggling with the other defendant, is to suffer the effect of the
attendance of treachery. (People vs. Carandang, 54 Phil. 503, 506)
449
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
The ruling stated in the first sentence should be subject to the
provision of Art. 62, paragraph No. 4, that is, treachery should be
considered against "those persons only who had knowledge" of the
employment of treachery "at the time of the execution of the act or
their cooperation therein."
When there is conspiracy, treachery attends against all conspirators,
although only one did the actual stabbing of the victim. (People
vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174, 211)
The mastermind should have knowledge of the employment
of treachery if he was not present when the crime was committed.
The trial court refused to consider treachery even as a generic
aggravating circumstance against appellant, on the ground that he
was not present when the crime was actually committed, and left the
means, modes or methods of its commission to a great extent to the
discretion of the others, citing People vs. De Otero, 51 Phil. 201.
The citation is not in point. It refers to a case where the accused
was convicted as principal by inducement per se under paragraph 2 of
Article 17 of the Revised Penal Code, without proof of conspiracy with
the other accused. In the case at bar, however, there was conspiracy
among the defendants, and the rule is that every conspirator is responsible
for the acts of the others in furtherance of the conspiracy.
Treachery — evident in the act of the gunman in suddenly firing his
revolver, preceded as it was by a false showing of courtesy to the victim,
thus insuring the execution of the crime without risk from any
defense or retaliation the victim might offer — should be appreciated
as a generic aggravating circumstance against the mastermind even
when he was not present when the crime was committed. (People vs.
Pareja, No. L-21937, Nov. 29, 1969, 30 SCRA 693, 715-716)
The ruling in this case should be subject to the provision of Art.
62, paragraph No. 4.
If the intervention of other persons did not directly and especially
insure the execution of the crime without risk to the
accused, there is no treachery.
Thus, even if the wife and sister of the accused held the deceased
by his shirt when the accused inflicted the bolo wounds which caused
450
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
his death, there is no treachery, because the body and hands of the
deceased were not deprived of liberty of action and, hence, there is
still risk to the person of the accused arising from the defense which
the victim might make. (People vs. Julipa, 69 Phil. 751, 753)
But if, of the four persons who were to rob a house, one grappled
with the watchman while the two opened fire and mortally wounded
both combatants, it was held that even though in the inception of
the aggression, the watchman carried a carbine and was at liberty
to defend himself, it is a fact that at the time the fatal wounds were
inflicted, he was defenseless. His freedom of movement was being
restrained by one of the culprits when the others fired at him. (People
vs. Mobe, 81 Phil. 58, 62)
Under the circumstances, there was no risk to the aggressor
arising from any defense which the deceased might make.
Treachery, evident premeditation and use of superior strength
are absorbed in treason by killings.
Treachery, evident premeditation and use of superior strength
are, by their nature, inherent in the offense of treason. (People vs.
Racaza, 82 Phil. 623, 637)
Treachery absorbs abuse of superior strength, aid of armed
men, by a band and means to weaken the defense.
Abuse of superior strength and employing means to weaken the
defense of the deceased by throwing sand to his face are absorbed
in treachery. (People vs. Siaotong, G.R. No. L-9242, March 29, 1957
[Unrep.])
When treachery is taken into account as a qualifying circumstance
in murder, it is improper to consider, in addition to that circumstance,
the generic aggravating circumstance of abuse of superior strength,
since the latter is necessarily included in the former. (U.S. vs. Estopia,
28 Phil. 97, 100; U.S. vs. Oro, 19 Phil. 548, 554-555; U.S. vs. Vitug,
17 Phil. 1, 20)
The aggravating circumstances of superior strength and by
band are absorbed in treachery. (People vs. Ampo-an, G.R. No. 75366,
July 4, 1990, 187 SCRA 173, 189; People vs. Manzanares, G.R. No.
82696, Sept. 8,1989,177 SCRA 427,434; People vs. Molato, G.R. No.
451
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
66634, Feb. 27, 1989, 170 SCRA 640, 647; People vs. Renejane, Nos.
L-76954-55, Feb. 26, 1988, 158 SCRA 258, 269)
The killings were attended with the aggravating circumstances
of treachery, abuse of superiority, dwelling and band (cuadrilla).
The qualifying circumstance alleged in the information is treachery
which absorbs abuse of superior strength and cuadrilla. (People vs.
Mori, Nos. L-23511-12, Jan. 31, 1974, 55 SCRA 382, 403; People vs.
Sangalang, No. L-32914, Aug. 30, 1974, 58 SCRA 737, 741)
The aggravating circumstances of superior strength and aid of
armed men, as well as nighttime, are included in the qualifying circumstance
of treachery. (People vs. Sespeiie, 102 Phil. 199, 210)
Nighttime and abuse of superior strength are inherent in
treachery and cannot be appreciated separately. (People vs. Bardon,
No. L-60764, Sept. 19,1988,165 SCRA 416,426; People vs. Kintuan,
No. L-74100, Dec. 3, 1987,156 SCRA 195, 202)
Abuse of superiority and aid of armed men are absorbed in
treachery. (People vs. Ferrera, No. L-66965, June 18,1987,151 SCRA
113, 139)
Treachery absorbs nocturnity, abuse of superiority, band and
aid of armed men. While there may be instances where any of the
other circumstances may be treated independently of treachery, it is
not so when they form part of the treacherous mode of attack. (People
vs. Sudoy, Oct. 10, 1974, 60 SCRA 174, 182)
Nighttime inherent in treachery.
The reason for this rule is that nighttime forms part of the
peculiar treacherous means and manner adopted to insure the
execution of the crime. (People vs. Pardo, 79 Phil. 568; People vs.
Corpuz, 107 Phil. 44, 50)
Had it not been at night, the accused would not have been able
to approach the deceased without the latter's becoming aware of his
presence and guessing his intention. (People vs. Balagtas, 68 Phil. 675,
677) Hence, nighttime is not a separate aggravating circumstance,
whenever treachery is already considered.
When nighttime is not absorbed in treachery.
There was treachery in the commission of the offense at bar.
452
AGGRAVATING CIRCUMSTANCES
Treachery
Art. 14
Par. 16
The victims' hands were tied at the time they were beaten. Since the
treachery rests upon an independent factual basis, the circumstance
of nighttime is not absorbed therein, but can be perceived distinctly
therefrom. A special case therefore is present to which the rule that
nighttime is absorbed in treachery does not apply. (See People vs.
John Doe, G.R. No. L-2463, March 31, 1950; 2 Viada, Codigo Penal,
274-275; People vs. Berdida, No. L-20183, June 30, 1966, 17 SCRA
520, 529; People vs. Ong, No. L-34497, Jan. 30,1975, 62 SCRA 174,
212; People vs. Luna, No. L-28174, July 31, 1974, 58 SCRA 195,
208)
Craft is included in and absorbed by treachery.
Craft is included in and absorbed by the qualifying circumstance
of treachery, because it was used to insure the commission of the crime
without any risk to the culprits. (People vs. Malig, 83 Phil. 804)
But in the case of People vs. Daos, 60 Phil. 143,154, it was held
that the aggravating circumstances of craft and treachery should be
taken into consideration, on the ground that the act of the accused
in pretending to be bona fide passengers in the taxi in order not to
arouse the driver's suspicion constitute craft; and the fact that in
assaulting him they did so from behind, catching him completely
unaware, certainly constitutes treachery.
When craft was employed in robbery with homicide, not with
a view to making treachery more effective as nighttime or abuse of
superior strength would in the killing of the victim, but to facilitate
the taking of the jeep in the robbery scheme as planned by the culprits,
it is not absorbed in treachery. (People vs. San Pedro, No. L-44274,
Jan. 22, 1980, 95 SCRA 306, 309)
Age and sex are included in treachery.
Disregard of age and sex may be deemed included in treachery.
(People vs. Limaco, 88 Phil. 35, 42, citing People vs. Mangsant, 65
Phil. 548)
The aggravating circumstances of disregard of age and sex, and
advantage taken of superior strength, should not have been considered
independently of the aggravating circumstance of treachery which
was already considered. (People vs. Gervacio, No. L-21965, August
30, 1968, 24 SCRA 960, 976)
453
Art. 14
Par. 16
AGGRAVATING CIRCUMSTANCES
Treachery
Illustration of aggravating circumstance absorbed by another.
The circumstances of nighttime, uninhabited place, cruelty and
aid of armed persons cannot be taken into consideration as aggravating
circumstances, because the first (nighttime) was necessarily
included in that of treachery; that of uninhabited place, because it
has not been proven that there were no houses near the house of the
deceased; that of cruelty, because the fire, which is the fact in which
said circumstance is made to consist, took place after the victims
were already dead, the appellant not having taken advantage of said
means to deliberately augment the seriousness of the crime; and that
of aid of armed persons, because the appellant as well as those who
cooperated with him in the commission of the crime in question, acted
under the same plan and for the same purpose. (People vs. Piring, 63
Phil. 546, 553)
Dwelling is not included in treachery.
The aggravating circumstance of dwelling cannot be included
in the qualifying circumstance of treachery. (People vs. Ruzol, 100
Phil. 537, 544; People vs. Jimenez, 99 Phil. 285, 288)
Defenseless condition of victims is included in abuse of superior
strength, not treachery.
The defenseless condition of the women and children shot to
death by the offenders should be considered as included in the qualifying
circumstance of abuse of superior strength, not as an independent
circumstance of treachery. (People vs. Lawas, G.R. Nos. L-7618-20,
June 30, 1955)
Treachery is inherent in murder by poisoning.
Treachery is inherent in murder by poisoning. (People vs. Caliso,
58 Phil. 283, 295)
Treachery cannot co-exist with passion or obfuscation.
Treachery cannot co-exist with passion or obfuscation, for while
in the mitigating circumstance of passion or obfuscation, the offender
loses his reason and self-control, in the aggravating circumstance
of treachery the mode of attack must be consciously adopted. One
454
AGGRAVATING CIRCUMSTANCES
Ignominy
Art. 14
Par. 17
who loses his reason and self-control could not deliberately employ
a particular means, method or form of attack in the execution of the
crime. (People vs. Wong, C.A., 70 O.G. 4844)
Par. 17. — That means be employed or circumstances brought
about which add ignominy to the natural effects of
the act.
Basis of this aggravating circumstance.
The basis has reference to the means employed.
Ignominy, defined.
Ignominy is a circumstance pertaining to the moral order, which
adds disgrace and obloquy to the material injury caused by the crime.
(U.S. vs. Abaigar, 2 Phil. 417, 418; People vs. Acaya, No. L-72998,
July 29,1988, 163 SCRA 768, 774)
Applicable to crimes against chastity, less serious physical
injuries, light or grave coercion, and murder.
This aggravating circumstance is applicable when the crime
committed is against chastity.
Ignominy aggravates the penalty for the crime of less serious
physical injuries. (Art. 265, par. 2)
Ignominy was considered in the crime of light coercion under
Article 287, paragraph 2, in a case where the accused who embraced
and kissed the offended party acted under an impulse of anger rather
than a desire to satisfy his lust. The act was committed in the presence
of many persons. The offended party was a young woman. These
circumstances tended to make the effects of the crime more humiliating.
(People vs. Cantong, C.A., 50 O.G. 5899)
There is ignominy to be considered in determining the proper
penalty for murder, when before he was killed, the deceased, a
landowner, was forced by the accused to kneel in front of his house
servants drawn up in line before him. (U.S. vs. De Leon, 1 Phil. 163,
164)
455
Art. 14
Par. 17
AGGRAVATING CIRCUMSTANCES
Ignominy
"That means be employed."
When the accused raped a woman after winding cogon grass
around his genital organ, he thereby augmented the wrong done by
increasing its pain and adding ignominy thereto. (People vs. Torrefiel,
et al., C.A., 45 O.G. 803)
"That xxx circumstances be brought about."
(1) It would be present in a case where one rapes a married
woman in the presence of her husband (U.S. vs. Iglesia, 21
Phil. 55, 57), or alleged husband (People vs. Soriano, No.
L-32244, June 24,1983,122 SCRA 740, 750-751), or where
the accused rapes a woman in the presence of her betrothed
(U.S. vs. Casanas, 5 Phil. 377-378), or where a woman
was successively raped by four men (U.S. vs. Camiloy, 36
Phil. 757, 758), or where one of the victims was raped in
the presence of her husband, and the other successively
raped by five men (People vs. Detuya, No. L-39300, Sept.
30, 1987, 154 SCRA 410, 426), or where the accused used
not only the missionary position, i.e., male superior, female
inferior, but also the dog style of sexual intercourse, i.e.,
entry from behind. (People vs. Saylan, No. L-36941, June
29, 1984, 130 SCRA 159,167)
But where the rape of the wife was not perpetrated
in the presence or with the knowledge of her husband, or
where the rape was done after the husband was killed,
the rape committed could not have added ignominy to the
crime. (People vs. Mongado, No. L-24877, June 30, 1969,
28 SCRA 642, 651)
(2) There is ignominy when in compelling an old woman to
confess to the theft of clothes, the accused maltreated her
and took off her drawers because the removing of her drawers
could have no other purpose but to put her to shame.
(People vs. Fernando, C.A., 43 O.G. 1717)
The crime committed in that case is grave coercion.
(Art. 286)
"Which add ignominy to the natural effects of the act."
According to this clause, the means employed or the circum-
456
AGGRAVATING CIRCUMSTANCES
Ignominy
Art. 14
Par. 17
stances brought about must tend to make the effects of the crime
more humiliating or to put the offended party to shame.
The fact that the appellants, in ordering the complainant to
exhibit to them her complete nakedness for about two minutes before
raping her, brought about a circumstance which tended to make the
effects of the crime more humiliating. (People vs. Jose, No. L-28232,
Feb. 6,1971, 37 SCRA 450, 476) Similarly, in a case where it was established
that the accused used a flashlight and examined the genital
of the victim before he ravished her, and committed the bestial deed
in the presence of the victim's old father, the Supreme Court held
that these facts clearly show that the accused deliberately wanted to
further humiliate the victim, thereby aggravating and compounding
her moral sufferings. (People vs. Bumidang, G.R. No. 130630, Dec.
4, 2000)
Ignominy attended in this case: Between seven and eight o'clock
in the evening, the unwary victim went to the beach where she was
accustomed to void and when she squatted, the assailant unexpectedly
appeared behind her, held her hair, thus tilting her face, and
while in that posture, he inserted into her mouth the muzzle of his
pistol and fired. She died. (People vs. Nierra, No. L-32624, Feb. 12,
1980, 96 SCRA 1, 5-6,14)
But the fact that the accused sliced and took the flesh from the
thighs, legs and shoulders of the victim after killing her by the use
of a knife does not add ignominy to the natural effects of the act.
(People vs. Balondo, No. L-27401, Oct. 31,1969, 30 SCRA 155,159,
161; People vs. Ferrera, No. L-66965, June 18,1987,151 SCRA 113,
140)
It is incorrect to appreciate adding ignominy to the offense where
the victim was already dead when his body was dismembered. It is
required that the offense be committed in a manner that tends to
make its effects more humiliating to the victim, that is, add to his
moral suffering. (People vs. Carmina, G.R. No. 81404, Jan. 28, 1991,
193 SCRA 429, 436)
The mere fact that the assailant fired more shots at the prostrate
bodies of his victims is not sufficient to show the existence of
ignominy. (People vs. Pantoja, No. L-18793, Oct. 11, 1968, 25 SCRA
468, 472)
457
Art. 14
Par. 18
AGGRAVATING CIRCUMSTANCES
Unlawful Entry
No ignominy when a man is killed in the presence of his
wife.
The fact that the deceased was killed in the presence of his
wife certainly could not have such signification. The circumstance of
ignominy was not present, because no means was employed nor did
any circumstance surround the act tending to make the effects of the
crime more humiliating. (U.S. vs. Abaigar, supra)
Rape as ignominy in robbery with homicide.
Rape committed on the occasion of robbery with homicide
increases the moral evil of the crime, and it is incorrect to say that
there is no law which considers rape as an aggravating circumstance
simply because it is not specifically enumerated in Article 14 of the
Revised Penal Code as an aggravating circumstance. As has been
held in People vs. Racaza, 82 Phil. 623, 638, rapes, wanton robbery
for personal gain, and other forms of cruelties are condemned and
their perpetration will be regarded as aggravating circumstances of
ignominy and of deliberately augmenting unnecessary wrongs to the
main criminal objective under paragraphs 17 and 21 of Article 14 of
the Revised Penal Code. (People vs. Tapales, No. L-35281, Sept. 10,
1979, 93 SCRA 134, 142. But see People vs. Mongado, No. L-24877,
June 30, 1969, 28 SCRA 642, 651-652)
Par. 18. — That the crime be committed after an unlawful entry.
Basis of this aggravating circumstance.
The basis has reference to the means and ways employed to
commit the crime.
Meaning of unlawful entry.
There is an unlawful entry when an entrance is effected by a
way not intended for the purpose.
To effect entrance, not for escape.
Unlawful entry must be a means to effect entrance and not for
escape. (People vs. Sunga, 43 Phil. 205, 206)
458
AGGRAVATING CIRCUMSTANCES
Unlawful Entry
Art. 14
Par. 18
Example:
The act of entering through the window, which is not the proper
place for entrance into the house, constitutes unlawful entry.
Is there unlawful entry if the door is broken and thereafter made
an entry thru the broken door? No, it will be covered by paragraph
19.
Reason for aggravation.
One who acts, not respecting the walls erected by men to guard
their property and provide for their personal safety, shows a greater
perversity, a greater audacity; hence, the law punishes him with more
severity.
Application of this circumstance.
It should be considered in rape committed in a house after an
entry through the window. It should be considered also in murder
where the accused entered the room of the victim through the window.
It should be considered also in robbery with violence against or
intimidation of persons, because unlawful entry is not inherent in that
particular kind of robbery. The window is not intended for entrance
into the building.
But unlawful entry is one of the ways of committing robbery
with force upon things under Art. 299, par. (a), and Art. 302 of the
Code. It is inherent in this kind of robbery.
If the crime charged in the information was only theft, and
during the trial, the prosecution proved unlawful entry, it is a
generic aggravating circumstance which may raise the penalty for
theft to the maximum period. It would be improper to convict the
accused of robbery with force upon things because unlawful entry
was not alleged in the information. (People vs. Sunga, 43 Phil. 205,
206)
Dwelling and unlawful entry taken separately in murders committed
in a dwelling.
When the accused gained access to the dwelling by climbing
through the window and once inside, murdered certain persons in the
dwelling, there were two aggravating circumstances which attended
459
Art. 14
Par. 19
AGGRAVATING CIRCUMSTANCES
Breaking Wall
the commission of the crimes — dwelling and unlawful entry. (People
vs. Barruga, 61 Phil. 318, 331)
Unlawful entry is not aggravating in trespass to dwelling.
Trespass to dwelling is committed when a private individual
shall enter the dwelling of another against the latter's will and may
be committed by means of violence. (Art. 280)
If the offender entered the dwelling of another through an opening
not intended for the purpose, like the window, the unlawful entry
was an integral part of the circumstance of violence with which the
crime of trespass was committed. (U.S. vs. Barberan, 17 Phil. 509,
511-512)
Par. 19. — That as a means to the commission of a crime, a wall,
roof, floor, door, or window be broken.
Basis of this aggravating circumstance.
The basis has reference to means and ways employed to commit
the crime.
Is the cutting of the canvas of the tent where soldiers are sleeping
covered by par. 19?
It was considered aggravating in murder where the accused cut
the ropes at the rear of a field tent and killed two soldiers inside the
tent. (U.S. vs. Matanug, 11 Phil. 188, 189, 192)
The Supreme Court called it "the aggravating circumstance of
forcible entry."
"As a means to the commission of a crime."
A broke a window to enable himself to reach a purse with money
on the table near that window, which he took while his body was
outside of the building. The crime of theft was attended by this aggravating
circumstance. Note that because of the phrase "as a means
to the commission of a crime," it is not necessary that the offender
should have entered the building. What aggravates the liability of
the offender is the breaking of a part of the building as a means to
the commission of the crime.
460
AGGRAVATING CIRCUMSTANCES
Breaking Wall
Art. 14
Par. 19
To be considered as an aggravating circumstance, breaking the
door must be utilized as a means to the commission of the crime. It
is not to be appreciated where the accused did not break the door of
the victims as a means to commit robbery with homicide where the
accused after breaking the rope which was used to close the door
could have already entered the house. Breaking of the shutters and
the framing of the door to insure the elements of surprise does not
aggravate the commission of the crime. (People vs. Capillas, No. L-
27177, Oct. 23, 1981, 108 SCRA 173, 187)
To effect entrance only.
But it may be resorted to as a means to commit a crime in a
house or building.
For example, a murderer who, for the purpose of entering the
house of his victim, breaks a wall or a window of the house.
The circumstance is aggravating only in those cases where the
offender resorted to any of said means to enter the house. If the wall,
etc., is broken in order to get out of the place, it is not an aggravating
circumstance.
Breaking a part of the building is one of the means of entering
the building to commit robbery with force upon things under Art. 299,
par. (a), and Art. 302 of the Code. It is inherent in this kind of robbery.
Breaking a part of the building is not aggravating in that crime.
Where breaking of door or window is lawful.
Under Rule 113, Sec. 11 (Revised Rules of Criminal Procedure).
— An officer, in order to make an arrest, either by virtue of a warrant,
or without a warrant as provided in Section 5, may break into
any building or enclosure where the person to be arrested is or is
reasonably believed to be, if he is refused admittance thereto, after
announcing his authority and purpose.
Rule 126, Sec. 7 (Revised Rules of Criminal Procedure). - The
officer, if refused admittance to the place of directed search after
giving notice of his purpose and authority, may break open any
outer or inner door or window of a house or any part of a house or
anything therein to execute the warrant or liberate himself or any
person lawfully aiding him when unlawfully detained therein.
461
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 20 Aid of Minor or by Means of Motor Vehicles
Par. 20. — That the crime he committed (1) with the aid of
persons under fifteen years of age, or (2) by means
of motor vehicles, airships, or other similar means.
Basis of the aggravating circumstances.
The basis has reference to means and ways employed to commit
the crime.
Two different aggravating circumstances in paragraph 20.
Two different circumstances are grouped in this paragraph. The
first one tends to repress, so far as possible, the frequent practice
resorted to by professional criminals to avail themselves of minors
taking advantage of their irresponsibility; and the second one is intended
to counteract the great facilities found by modern criminals
in said means to commit crime and flee and abscond once the same is
committed. (Albert)
"With the aid of persons under fifteen years of age."
A caused B, a boy 14 years old, to climb the wall of the house
of C, to enter the same through its window, and once inside, to take,
as in fact B took, clothes and other personal property in the house of
C. Then B threw them to the ground where A picked them up. The
aggravating circumstance that the crime was committed with the aid
of a person under fifteen years of age should be taken into account
against A.
"By means of motor vehicles."
Use of motor vehicle is aggravating where the accused used the
motor vehicle in going to the place of the crime, in carrying away the
effects thereof, and in facilitating their escape. (People vs. Espejo,
No. L-27708, Dec. 19, 1970, 36 SCRA 400, 418)
May this aggravating circumstance be considered if the motor
vehicle was used, not as a means to commit the crime, but only as a
means for the flight or concealment of the offender? Judge Guevara
believes that the use of motor vehicles is aggravating "because the
same furnish a quick means for the flight or concealment of the offender."
462
AGGRAVATING CIRCUMSTANCES Art. 14
Aid of Minor or by Means of Motor Vehicles Par. 20
The accused used the motor vehicle in going to the place of the
crime, in carrying the effects thereof and in facilitating the escape.
(People vs. Espejo, 36 SCRA 400)
When the accused has decided to realize his plan of liquidating
the victim, drove his pickup with his companions, conducted a surveillance
of the victim's whereabouts while driving his pickup, killed
the victim upon meeting him, and made good his escape by speeding
away in his vehicle, the motor vehicle was used as a means to commit
the crime and to facilitate escape, which is aggravating. (People vs.
Cuadra, No. L-27973, Oct. 23, 1978, 85 SCRA 576, 596)
After an earlier confrontation, the principal accused caught up
with the victim on board a jeep which the former was driving. As soon
as he had stopped the vehicle, he stepped down and axed the victim,
while one of several companions stabbed him, the rest stoning him.
The victim died. The jeep having played an important role in the
accomplishment of the crime and the accused and his companions
having made good their escape by speeding away aboard the jeep
in order to avoid discovery of their identities, use of motor vehicle
is aggravating. (People vs. Bardon, No. L-60764, Sept. 19,1988,165
SCRA 416, 420, 426)
Note: If the motor vehicle was used only in facilitating the
escape, it should not be an aggravating circumstance.
Where the use of a vehicle was not deliberate to facilitate the
killing of the victim, the escape of the assailants from the scene of
the crime, and the concealment of the body of the victim, but only
incidental, it is not an aggravating circumstance. (People vs. Munoz,
No. L-38016, Sept. 10,1981, 107 SCRA 313, 338)
Where it appears that the use of motor vehicle was merely incidental
and was not purposely sought to facilitate the commission
of the offense or to render the escape of the offender easier and his
apprehension difficult, the circumstance is not aggravating. (People
vs. Garcia, No. L-32071, July 9, 1981, 105 SCRA 325, 343)
Use of motor vehicle will not be considered as an aggravating
circumstance where there is no showing that the motor vehicle was
purposely used to facilitate the commission of the crime or where
it is not shown that without it, the offense charged could not have
been committed. Thus, where the primary purpose of the assailant
in riding on a motorized tricycle was to return to their camp (assail-
463
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 20 Aid of Minor or by Means of Motor Vehicles
ant was a PC enlistedman) after shooting a first victim and it was
just incidental that on his way to the camp, he happened to see the
second victim, the circumstance is not aggravating. (People vs. Mil,
Nos. L-28104-05, July 30, 1979, 92 SCRA 89, 102)
Estafa, which is committed by means of deceit or abuse of confidence,
cannot be committed by means of motor vehicle.
While it is true that a jeep was used in carting away the Vicks
Vaporub, we feel that the crime of estafa was not committed by means
of said vehicle. Furthermore, under Article 14, paragraph 20 of the
Revised Penal Code, that aggravating circumstance exists only if "the
crime be committed *** by means of motor vehicles ***." (People vs.
Bagtas, et al., CA-G.R. No. 10823-R, September 12, 1955)
Theft, which is committed by merely taking personal property
which need not be carried away, cannot be committed by
means of motor vehicles.
The culprits used a car and, for part of the way, a hired jeep in
going to and coming from the place where the crime (theft) was committed.
It would be stretching the meaning of the law too far to say
that the crime was committed "by means of motor vehicles." (People
vs. Real, 10 C.A. Rep. 668)
Examples of crimes committed by means of motor vehicle.
A, with the help of B and with lewd designs, forcibly took and
carried away a woman by means of an automobile to another town.
The crime of forcible abduction (Art. 342) was committed with this
aggravating circumstance.
Use of motor vehicle was aggravating in theft where a truck
was used in carrying away the stolen rails and iron and wooden ties
from the scene of the theft to the place where they were sold (People
vs. Arabia, C.A., 53 O.G. 6569), and in robbery with homicide where
a motor vehicle was used in transporting the accused. (People vs.
Valeriano, 90 Phil. 15, 31, 35)
Even if the victims rode voluntarily in the jeepney, since they
were lured and taken to the place where they were killed, the use of
motor vehicles was considered aggravating. (People vs. De la Cruz,
100 Phil. 624, 634)
464
AGGRAVATING CIRCUMSTANCES
Cruelty
Art. 14
Par. 21
A jeep was used by the appellants in fetching and luring the
deceased from his house to go with them on the night in question,
which they must have used also in taking him to the spot where later
on the victim's body was found. There can be no doubt that the use of
the motor vehicle facilitated the commission of the offense. (People
vs. Atitiw, 14 CAR [2s] 457, 467)
When the accused stabbed and inflicted upon his girlfriend,
mortal wounds which caused her death, while they were in a taxi
which was hired and used by him, the aggravating circumstance of
by means of motor vehicle was present. (People vs. Marasigan, 70
Phil. 583, 594)
Where the accused used a motor vehicle to insure the success of
their nefarious enterprise, the circumstance is aggravating. (People
vs. Jaranilla, No. L-28547, Feb. 22, 1974, 55 SCRA 563, 575)
Use of motor vehicle is aggravating in this case: the car of the
accused was used in trailing the victim's car up to the time that it
was overtaken and blocked. It carried the victim on the way to the
scene of the killing; it contained at its baggage compartment the pick
and shovel used in digging the grave; and it was the fast means of
fleeing and absconding from the scene. (People vs. Ong, No. L-34497,
Jan. 30,1975, 62 SCRA 174, 214)
"Or other similar means."
The expression should be understood as referring to motorized
vehicles or other efficient means of transportation similar to automobile
or airplane.
Thus, if the culprit, before committing and after committing the
crime, rode in a bicycle and escaped, there is no aggravating circumstance.
But it is aggravating if he used a motorcycle.
Par. 21. — That the wrong done in the commission of the crime
be deliberately augmented by causing other wrong
not necessary for its commission.
Basis of this aggravating circumstance.
The basis has reference to ways employed in committing the
crime.
465
Art. 14
Par. 21
AGGRAVATING CIRCUMSTANCES
Cruelty
What is cruelty?
There is cruelty when the culprit enjoys and delights in making
his victim suffer slowly and gradually, causing him unnecessary
physical pain in the consummation of the criminal act. (People vs.
Dayug, 49 Phil. 423, 427)
For cruelty to be aggravating, it is essential that the wrong
done was intended to prolong the suffering of the victim, causing
him unnecessary moral and physical pain. (People vs. Llamera, Nos.
L-21604-6, May 25, 1973, 51 SCRA 48, 60)
For cruelty or vindictiveness to be appreciated, the evidence
must show that the sadistic culprit, for his pleasure and satisfaction,
caused the victim to suffer slowly and gradually, and inflicted on him
unnecessary moral and physical pain. (People vs. Luna, No. L-28812,
July 31, 1974, 58 SCRA 198, 209)
For cruelty to exist, it must be shown that the accused enjoyed
and delighted in making his victim suffer slowly and gradually, causing
him unnecessary physical or moral pain in the consummation
of the criminal act. (People vs. Ong, No. L-34497, Jan. 30, 1975, 62
SCRA 174, 215)
Requisites of cruelty:
1. That the injury caused be deliberately increased by causing
other wrong;
2. That the other wrong be unnecessary for the execution of
the purpose of the offender.
"Be deliberately augmented by causing other wrong."
This phrase means that the accused at the time of the commission
of the crime had a deliberate intention to prolong the suffering
of the victim.
Cruelty was not present in a case where the assailant stoned
twice the victim, not for the purpose of increasing his sufferings, but
to kill him (U.S. vs. Gasal, 3 Phil. 354, 357), or in a case where the
acts of the assailants showed only a decided purpose to kill and not
to prolong sufferings of the victim (U.S. vs. Tan Corteso, 32 Phil. 104,
116), or where the purpose was to ensure the death of the three victims
466
AGGRAVATING CIRCUMSTANCES
Cruelty
Art. 14
Par. 21
and to tamper with the bullet wounds to make them appear as bolo
wounds in order to conceal the fact that a gun was used in killing
them (People vs. Llamera, supra), or where the victim was drowned
in the sea after stabbing him while bound (People vs. Luna, supra),
or where the victim was buried after being stabbed, not to make him
suffer any longer but to conceal his body and the crime itself (People
vs. Ong, supra), or where the accused kicked the deceased or placed
his right foot on the body of the deceased to verify whether or not
the latter was still alive, and not for the purpose of deliberately and
inhumanly increasing his sufferings. (People vs. Mil, Nos. L-28104-
05, July 30, 1979, 92 SCRA 89, 101)
"Other wrong not necessary for its commission."
A and B, who had tied C in the latter's house, struck him with
their guns to make him point the place where he was keeping his
money. Striking him with the guns is "other wrong," but it is necessary
for the commission of the crime of robbery, particularly to get
C's money. Hence, there is no cruelty.
Cruelty refers to physical suffering of victim purposely intended
by offender.
Cruelty requires deliberate prolongation of the physical suffering
of victim. (People vs. Dayug, supra; People vs. Llamera, supra)
Cruelty cannot be presumed.
Cruelty is not to be inferred from the fact that the body of the
deceased was dismembered, in the absence of proof that this was
done while the victim was still alive. (People vs. Jimenez, 54 O.G.
1361)
Cruelty considered in murder by burning mouth of child.
This circumstance is considered in the charge of murder for
burning the mouth and other parts of the body of an infant, 11 months
old. If the desire of the defendant had been only to kill the child, he
could have carried out his purpose without compelling the victim to
undergo such great suffering and for so long a time. (U.S. vs. Oro, 19
Phil. 548, 554)
467
Art. 14
Par. 21
AGGRAVATING CIRCUMSTANCES
Cruelty
Cruelty considered in extracting victim's eye and stuffing his
mouth with mud.
After hog-tying the victim, the accused extracted the victim's
left eye from its socket with the pointed end of his cane and also
stuffed the victim's mouth with mud. Held: There is cruelty. (People
vs. Mariquina, 84 Phil. 39, 40-41, 43, 44)
When the series of acts causing unnecessary sufferings of
victim took place in rapid succession, is there cruelty?
When a woman and her two daughters, one of them Corazon,
were fired at by the accused, Corazon screamed for help. One of the accused
grabbed her, raised her from the ground, while the other accused
battered her with the butt of the rifle and pounded her on the ground.
Corazon died of external and intra-cranial hemorrhage. Held: There was
unnecessary cruelty. (People vs. Beleno, 92 Phil. 868, 869, 872)
Was there a deliberate intention on the part of the accused to
prolong the suffering of the victim? There seems to be no appreciable
time intervening between or among the series of acts of the
accused.
In the case of People vs. Dayug, supra, it was held that "the mere
fact of inflicting various successive wounds upon a person in order to
cause his death, no appreciable time intervening between the infliction
of one wound and that of another to show that the offender wanted
to prolong the suffering of his victim, is not sufficient for taking this
aggravating circumstance into consideration."
Plurality of wounds alone does not show cruelty.
Number of wounds alone does not show cruelty, it being necessary
to show that the accused deliberately and inhumanly increased
the sufferings of the victims. (People vs. Aguinaldo, 55 Phil. 610,615-
616; People vs. Manzano, Nos. L-33643-44, July 31, 1974, 58 SCRA
250, 262; People vs. Lacao, No. L-32078, Sept. 30,1974, 60 SCRA 89,
96-97)
In the absence of a showing that the other wounds found on
the body of the victim were inflicted to prolong his suffering before
the fatal wound was dealt, it cannot be concluded that cruelty was
duly proven. Cruelty cannot be presumed. (People vs. Artieda, No.
L-38725, May 15, 1979, 90 SCRA 144, 156)
466
AGGRAVATING CIRCUMSTANCES
Cruelty
Art. 14
Par. 21
Where there were many wounds because there were many assailants,
the number of wounds alone is not sufficient to show that
the killing was committed for the purpose of deliberately and inhumanly
augmenting the suffering of the victim. (People vs. Vasquez,
No. 54117, April 27, 1982, 113 SCRA 772, 776)
No cruelty when other wrong was done after victim was
dead.
Cutting extremities after victim is killed is not cruelty. (People
vs. Bersabal, 48 Phil. 439, 441)
If at the time the house was set on fire the inmates who had been
seriously wounded were already dead, there is no cruelty. (People vs.
Piring, 63 Phil. 546, 553; People vs. Clamania, 85 Phil. 350, 353)
Neither may we consider the circumstance of cruelty as found
by the trial court, because there is no showing that the other wounds
found on the bodies of the victims were inflicted unnecessarily while
they were still alive in order to prolong their physical suffering.
(People vs. Curiano, Nos. L-15256-57, Oct. 31, 1963, 9 SCRA 323,
347-348)
For cruelty to be appreciated as a generic aggravating circumstance,
there must be positive proof that the wounds found on the
body of the victim were inflicted while he was still alive in order unnecessarily
to prolong physical suffering. (People vs. Pacris, G.R. No.
69986, March 5,1991, 194 SCRA 654, 663)
Ignominy distinguished from cruelty.
Ignominy (par. 17) involves moral suffering, while cruelty (par.
21) refers to physical suffering.
Rapes, robbery and other forms of cruelties are aggravating
circumstances of ignominy and cruelty in treason.
Rapes, wanton robbery for personal gain, and other forms of
cruelties are condemned and their perpetration will be regarded as aggravating
circumstances of ignominy and of deliberately augmenting
unnecessary wrongs to the main criminal objective, under paragraphs
17 and 21 of Article 14 of the Revised Penal Code. (People vs. Racaza,
82 Phil. 623, 638)
469
Art. 14
Par. 21
AGGRAVATING CIRCUMSTANCES
Cruelty
Rape as aggravating in robbery with homicide.
Where rape attends the commission of the crime of robbery with
homicide, the rape should be deemed to aggravate the robbery with
homicide. (People vs. Basca, 55 O.G. 797)
Rape as aggravating in murder.
Since the victim was already at the threshold of death when
she was ravished, that bestiality may be regarded either as a form of
ignominy causing disgrace or as a form of cruelty which aggravated
murder, because it was unnecessary to the commission thereof and
was a manifest outrage on the victim's person. (People vs. Laspardas,
No. L-46146, Oct. 23, 1979, 93 SCRA 638, 645)
Aggravating circumstances peculiar to certain felonies.
Among the aggravating circumstances peculiar to certain felonies
are the following:
1. That the offense (violation of domicile) be committed in
the nighttime, or if any papers or effects not constituting
evidence of a crime be not returned immediately after the
search made by the offender. (Art. 128, par. 2)
2. That the crime (interruption of religious worship) shall
have been committed with violence or threats. (Art. 132,
par. 2)
3. That the assault (direct assault) is committed with a weapon,
or when the offender is a public officer or employee, or when
the offender lays hands upon a person in authority. (Art.
148)
4. If the crime (slavery) be committed for the purpose of assigning
the offended party to some immoral traffic, the penalty
shall be imposed in its maximum period. (Art. 272, par. 2)
5. If the threat (grave threats) be made in writing or through
a middleman, the penalty shall be imposed in its maximum
period. (Art. 282)
6. If the robbery with violence against or intimidation of persons
(except robbery with homicide, or robbery with rape,
etc.) is committed in an uninhabited place or by a band, etc.,
470
ALTERNATIVE CIRCUMSTANCES Art. 14
Definition and Basia
or on a street, road, highway, or alley, and the intimidation
is made with the use of a firearm, the offender shall be
punished by the maximum period of the proper penalties.
(Art. 295)
7. If the robbery with the use of force upon things (Art. 299)
is committed in an uninhabited place and by a band, it
shall be punished by the maximum period of the penalty
provided therefor. (Art. 300)
Alternative Circumstances
1. Definition or concept.
Alternative circumstances are those which must be
taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and the
other conditions attending its commission.
2. Basis of the alternative circumstances.
The basis is the nature and effects of the crime and
the other conditions attending its commission.
471
Chapter Five
ALTERNATIVE CIRCUMSTANCES
Art. 15. Their concept. — Alternative circumstances are
those w h i c h must b e t a k e n i n t o c o n s i d e r a t i o n a s a g g r a v a t i ng
or m i t i g a t i n g a c c o r d i n g t o t h e n a t u r e a n d effects o f t h e crime
and t h e other c o n d i t i o n s a t t e n d i n g i t s commission. They are
the relationship, intoxication, and t h e degree of i n s t r u c t i on
and e d u c a t i o n of t h e offender.
The a l t e r n a t i v e c i r c u m s t a n c e of r e l a t i o n s h i p shall be
t a k e n i n t o c o n s i d e r a t i o n w h e n t h e o f f e n d e d p a r t y i s t he
spouse, ascendant, descendant, legitimate, natural, or adopted
brother o r sister, or r e l a t i v e by affinity i n t h e s a m e d e g r e e of
t h e offender.
The i n t o x i c a t i o n of t h e offender shall be t a k e n i n t o cons
i d e r a t i o n as a m i t i g a t i n g circumstance w h e n t h e offender
has committed a felony in a s t a t e of i n t o x i c a t i o n , i f t h e same is
not habitual o r s u b s e q u e n t t o t h e p l a n t o commit s a i d felony;
but w h e n t h e i n t o x i c a t i o n i s habitual or i n t e n t i o n a l , i t shall
be c o n s i d e r e d as an a g g r a v a t i n g circumstance.
The alternative circumstances are:
1. Relationship;
2. Intoxication; and
3. Degree of instruction and education of the offender.
Relationship.
The alternative circumstance of relationship shall be taken into
consideration when the offended party is the —
(a) spouse,
472
ALTERNATIVE CIRCUMSTANCES
Relationship
Art. 15
(b) ascendant,
(c) descendant,
(d) legitimate, natural, or adopted brother or sister, or
(e) relative by affinity in the same degree of the offender.
Other relatives included.
The relationship of stepfather or stepmother and stepson or
stepdaughter is included by analogy as similar to that of ascendant
and descendant. (People vs. Bersabal, 48 Phil. 439, 441; People vs.
Portento, C.A., 38 O.G. 467)
The reason for considering these relationships, as stated in the
case of People vs. Portento, supra, is that it is the duty of the stepmother
to bestow upon her stepdaughter a mother's affection, care
and protection. Hence, the effect of the crime of murder committed
by the stepmother against her stepdaughter makes the relationship
aggravating.
The relationship of adopted parent and adopted child may also
be included, as similar to that of ascendant and descendant.
But the relationship between uncle and niece is not covered by
any of the relationships mentioned. (U.S. vs. Insierto, 15 Phil. 358,
361; People vs. Balondo, No. L-27401, Oct. 31, 1969, 30 SCRA 155,
161; People vs. Lamberte, No. L-65153, July 11,1986,142 SCRA 685,
692-693)
When mitigating and when aggravating.
The law is silent as to when relationship is mitigating and when
it is aggravating.
As a rule, relationship is mitigating in crimes against property,
by analogy to the provisions of Art. 332.
Thus, relationship is mitigating in the crimes of robbery (Arts.
294-302), usurpation (Art. 312), fraudulent insolvency (Art. 314), and
arson. (Arts. 321-322, 325-326)
Under Art. 332 of the Code, no criminal, but only civil, liability
shall result from commission of the crime of theft, swindling or malicious
mischief committed or caused mutually by spouses, ascendants,
473
Art. 15 ALTERNATIVE CIRCUMSTANCES
Relationship
474
and descendants, or relatives by affinity in the same line; brothers and
sisters and brothers-in-law and sisters-in-law, if living together.
In view of the provision of Art. 332, when the crime committed
is (1) theft, (2) swindling or estafa, or (3) malicious mischief, relationship
is exempting. The accused is not criminally liable and there is no
occasion to consider a mitigating or an aggravating circumstance.
It is aggravating in crimes against persons in cases where the
offended party is a relative of a higher degree than the offender, or
when the offender and the offended party are relatives of the same
level, as killing a brother (People vs. Alisub, 69 Phil. 362, 364), a
brother-in-law (People vs. Mercado, 51 Phil. 99, 102; People vs.
Mendova, 100 Phil. 811, 818), a half-brother (People vs. Nargatan,
48 Phil. 470, 472, 475), or adopted brother. (People vs. Macabangon,
63 Phil. 1061-1062 [Unrep.])
Is relationship not aggravating when the offender killed his brotherin-
law?
Except an admission by the appellant that the deceased was
his brother-in-law, relationship by affinity should not be deemed to
aggravate the crime in the absence of evidence to show that the offended
party is of a higher degree in the relationship than that of the
offender. (People vs. Canitan, No. L-16498, June 29, 1963, 8 SCRA
358, 364)
If the crime against persons is any of the serious physical
injuries, the fact that the offended party is a descendant of
the offender is not mitigating.
When the crime against persons is any of the serious physical
injuries (Art. 263), even if the offended party is a descendant of the
offender, relationship is an aggravating circumstance.
If the offense of serious physical injuries is committed by the
offender against his child, whether legitimate or illegitimate, or any
of his legitimate other descendants, relationship is aggravating. But
the serious physical injuries must not be inflicted by a parent upon
his child by excessive chastisement.
Art. 263 provides for a higher penalty "if the offense (any of the
serious physical injuries) is committed against any of the persons
ALTERNATIVE CIRCUMSTANCES Art. 15
Relationship
enumerated in Art. 246." Art. 246, which defines and penalizes the
crime of parricide, enumerates the following persons: father, mother,
or child, whether legitimate or illegitimate, or any of his ascendants
or descendants, or spouse.
When the crime is less serious physical injuries or slight physical
injuries, the ordinary rule applies.
But when the offense committed is less serious physical injuries
(Art. 265); or slight physical injuries (Art. 266), relationship is a
mitigating circumstance, if the offended party is a relative of a lower
degree of the offender; and an aggravating circumstance, if the
offended party is a relative of a higher degree of the offender. Both
Art. 265 and Art. 266 do not have provisions to the contrary, as in
Art. 263.
When the crime against persons is homicide or murder, relationship is
aggravating even if the victim of the crime is a relative of lower degree.
If the commission of the crime against persons resulted in
the death of the victim who is a relative of a lower degree of the
offender, relationship is an aggravating circumstance. This rule
applies when the crime committed is homicide (Art. 249) or murder.
(Art. 248)
Thus, the killing of a stepdaughter by her stepmother is
attended by the circumstance of relationship which is considered as
aggravating. (People vs. Portento, supra) The crime is not parricide,
because the relationship is not by blood and in the direct line; but the
relationship was considered by the Court to aggravate the penalty,
notwithstanding the fact that the victim of the crime was a relative
of a lower degree.
Relationship is mitigating in trespass to dwelling.
Where a son-in-law, believing his wife to be in her father's
house, attempted to force an entry therein, the relationship is to be
considered in mitigation. (U.S. vs. Ostrea, 2 Phil. 93, 95)
Relationship is neither mitigating nor aggravating, when
relationship is an element of the offense.
When the qualification given to the crime is derived from the
relationship between the offender and offended party, it is neither
475
Art. 15 ALTERNATIVE CIRCUMSTANCES
Relationship
476
mitigating nor aggravating, because it is inseparable from and inherent
in the offense.
Examples: Parricide, adultery and concubinage.
In crimes against chastity, relationship is always aggravating.
In crimes against chastity, like of lasciviousness (Art. 336),
relationship is aggravating, regardless of whether the offender is a
relative of a higher or lower degree of the offended party.
In rape —
Relationship is aggravating in a case where a stepfather raped
his stepdaughter (People vs. De Leon, 50 Phil. 539, 545); or in a case
where a father raped his own daughter. (People vs. Porras, 58 Phil.
578-579; People vs. Lucas, G.R. No. 80102, Jan. 22,1990,181 SCRA
316, 327)
Reason for the difference in the rule.
Why is relationship aggravating in crimes against chastity even
if the offended party is a relative of lower degree?
Because of the nature and effect of the crime committed, it is
considered aggravating although the offended party is a relative of
lower degree. It is not shocking to our moral sense when we hear a
father committed, for instance, the crime of slight physical injury
against his daughter; but it certainly is very shocking when we hear
that a father committed acts of lasciviousness on the person of his
own daughter.
The rule may be different because of the "other condition attending"
the commission of the crime.
While the relationship of brothers-in-law is aggravating when
one commits a crime against the other, such relationship is mitigating
when the accused killed his brother-in-law in view of the conduct
pursued by the latter in contracting adulterous relations with the
wife of the accused. (U.S. vs. Ancheta, 1 Phil. 30, 32)
Also, in a case where the deceased was suffering from an attack
of insanity and the accused, his brother-in-law, in his desire to place
ALTERNATIVE CIRCUMSTANCES
Intoxication
Art. 15
the deceased under control, struck him with a club, exceeding the
limits of his discretion in the heat of the struggle, it was held that
relationship was mitigating because the cause of the maltreatment
was the desire to render service to a relative. (U.S. vs. Velarde, 36
Phil. 991, 992-993)
The reason for the difference in the rule is the "other condition
attending" the commission of the crime, which in the Ancheta case is
the conduct of the deceased in having adulterous relations with the
wife of the accused; and in the Velarde case, the desire of the accused
to render service to a relative.
Intoxication.
a. Mitigating — (1) if intoxication is not habitual, or (2) if
intoxication is not subsequent to the plan to commit a
felony.
b. Aggravating — (1) if intoxication is habitual; or (2) if
it is intentional (subsequent to the plan to commit a
felony).
It is intentional when the offender drinks liquor fully
knowing its effects, to find in the liquor a stimulant to
commit a crime or a means to suffocate any remorse.
Drunkenness or intoxication is mitigating if accidental, not
habitual nor intentional, that is, not subsequent to the plan to commit
the crime. It is aggravating if habitual or intentional. A habitual
drunkard is one given to intoxication by excessive use of intoxicating
drinks. The habit should be actual and confirmed. It is unnecessary
that it be a matter of daily occurrence. It lessens individual resistance
to evil thought and undermines will-power making its victim a
potential evildoer. (People vs. Camano, Nos. L-36662-63, July 30,
1982, 115 SCRA 688, 699-700)
For an accused to be entitled to the mitigating circumstance of
intoxication, it must be shown that (a) at the time of the commission
of the criminal act, he has taken such quantity of alcoholic drinks as
to blur his reason and deprive him of a certain degree of control, and
(b) that such intoxication is not habitual, or subsequent to the plan
to commit the felony. (People vs. Boduso, Nos. L-30450-51, Sept. 30,
1974, 60 SCRA 60, 70-71)
477
Art. 15 ALTERNATIVE CIRCUMSTANCES
Intoxication
478
"When the offender has committed a felony in a state of intoxication."
The last paragraph of Art. 15 says "when the offender has
committed a felony in a state of intoxication,'' by which clause is meant
that the offender's mental faculties must be affected by drunkenness.
Evidence for intoxication to be aggravating.
There is no showing of excessive and habitual use of intoxicating
drinks, or that the accused purposely got drunk in order to commit
the crime, where the witness merely declared that the accused were
drinking liquor on the night in question and were telling stories, singing,
laughing, and shouting and were very jolly, although said witness
further testified that the accused used to drink liquor every Saturday
night, such testimony not being competent proof that the accused
are drunkards whose habit is to get drunk, and whose inebriety has
become habitual. In such a case, intoxication is not aggravating but
mitigating. (People vs. Moral, No. L-31139, Oct. 12,1984,132 SCRA
474, 488)
The accused's state of intoxication must be proved.
In People vs. Noble, 77 Phil. 93,101-102, the defendant testified
that before the murder, he took a bottle of wine and drank little by
little until he got drunk. The policeman who arrested the accused
testified that the latter smelled of wine and vomited. The Court held
that the evidence presented was not satisfactory to warrant a mitigation
of the penalty.
Intoxication was likewise not completely proved in a case where
the only evidence was that the defendant had a gallon of tuba with
him at the time he committed the crime. (People vs. Pardo, 79 Phil.
568, 579)
In another case, intoxication was not also proved where the accused
merely alleged that when he committed the offense charged,
he was intoxicated although he was "not used to be drunk." His selfserving
statement was uncorroborated and was dismissed as devoid
of any probative value. (People vs. Apduhan, Jr., No. L-19491, Aug.
30, 1968, 24 SCRA 798, 813-814)
To be mitigating, the accused's state of intoxication must be
proved. Once intoxication is established by satisfactory evidence, in
ALTERNATIVE CIRCUMSTANCES
Intoxication
Art. 15
the absence of proof to the contrary, it is presumed to be non-habitual
or unintentional. (People vs. Apduhan, Jr., supra, at 813, citing People
vs. Noble, 77 Phil. 93 and U.S. vs. Fitzgerald, 2 Phil. 419)
The accused merely alleged that when he committed the offense
charged, he was intoxicated although he was "not used to be drunk."
This self-serving statement stands uncorroborated. Obviously, it is
devoid of any probative value.
In People vs. Apduhan, Jr., 24 SCRA 798, it was held that to
be mitigating, the accused's state of intoxication must be proved.
Once intoxication is established by satisfactory evidence (People
vs. Noble, 77 Phil. 93), in the absence of proof to the contrary, it is
presumed to be non-habitual or unintentional. (U.S. vs. Fitzgerald,
2 Phil. 419)
Where the court below found that the appellant was under the
influence of liquor in the afternoon immediately preceding the incident
and there is no evidence indicating that he is a habitual drunkard,
the mitigating circumstance of intoxication should be considered in
favor of the appellant. (People vs. Gongora, Nos. L-14030-31, July 31,
1963, 8 SCRA 472, 482; People vs. De Gracia, No. L-21419, Sept. 29,
1966, 18 SCRA 197, 207)
Note: In these cases, there was no evidence that the intoxication
was intentional or subsequent to the plan to commit
the crime.
Drunkenness must affect mental faculties.
The Code says nothing about the degree of intoxication needed
to mitigate; but obviously to produce such an effect, it must diminish
the agent's capacity to know the injustice of his acts, and his will to
act accordingly. (Albert)
The amount of wine taken must be of such quantity as to blur the
offender's reason and deprive him of self-control. (People vs. Cabrera,
CA-G.R. No. 13941-R, June 1, 1956)
Before drunkenness may be considered as a mitigating
circumstance, it must first be established that the liquor taken by
the accused was of such quantity as to have blurred his reason and
deprived him of self-control. It should be such an intoxication that
would diminish the agent's capacity to know the injustice of his acts,
479
Art. 15 ALTERNATIVE CIRCUMSTANCES
Intoxication
480
and his will to act accordingly. (People vs. Ruiz, Nos. L-33604-05, Oct.
30, 1979, 93 SCRA 739, 760-761)
Thus, if the amount of the liquor the accused had taken was
not of sufficient quantity to affect his mental faculties, he was not in
a state of intoxication. If the accused was thoughtful enough not to
neglect giving Don Vicente Noble his injection, the inference would be
that his intoxication was not to such a degree as to affect his mental
capacity to fully understand the consequences of his act. (People vs.
Noble, 77 Phil. 93, 101-102)
Also, although the accused had taken some liquor on the
day of the shooting, if he was aware of everything that occurred
on that day and he was able to give a detailed account thereof,
intoxication is not mitigating. (People vs. Buenaflor, C.A., 53 O.G.
8879)
And although the persons participating in the act of misappropriating
public funds may, for some time prior thereto, had been
drinking freely of intoxicating liquor, yet if they were sufficiently sober
to know what they were doing when committing the unlawful act, the
mitigating circumstance of intoxication cannot be considered. (U.S.
vs. Dowdell, 11 Phil. 4 [Syllabus])
"When the intoxication is habitual."
The mere fact that the accused had been drinking intoxicating
liquor about seven months and that he had been drunk once or twice a
month is not constituting habitual drunkenness. A habitual drunkard
is one given to intoxication by excessive use of intoxicating drinks. The
habit should be actual and confirmed, but it is not necessary that it
be continuous or by daily occurrence. (People vs. Amenamen, C.A.,
37 O.G. 2324)
In U.S. vs. McMann, 4 Phil. 561, 565, a witness testified that
he saw the defendant drunk twelve times or more. Held: He was a
habitual drunkard.
Drunkenness was also found to be habitual where the defendants
admitted in open court that before they committed the
crime, they drank for three hours and often had a drinking party.
(People vs. Mabilangan, No. L-48217, Jan. 30, 1982, 111 SCRA
398, 403)
ALTERNATIVE CIRCUMSTANCES
Intoxication
Art. 15
"Or subsequent to the plan to commit a felony."
Illustration:
A decided to kill B. A planned to commit the crime by preparing
the means to carry it out. When he was ready to kill B, A drank a
glass of wine and when already intoxicated, he looked for B and
killed him. Note that A drank wine to intoxicate himself after he had
planned the commission of the crime. In this case, the intoxication is
intentional.
Intoxication is mitigating where the same was not habitual
nor intentional and the crime was not the offspring of planning and
deliberation but a fatal improvisation dictated by an impromptu
impulse. (People vs. Abalos, No. L-31726, May 31, 1974, 57 SCRA
330, 338)
Even if intoxication is not habitual, it is aggravating when
subsequent to the plan to commit the crime.
In a case where the trial court found the commission of the crime
of murder to be attended by the mitigating circumstance that the
accused was drunk, but not habitually so, it was held that it appearing
that the accused, who had plotted the death of the victim, drank
wine in order to embolden himself in the carrying out of his evil plan,
his intoxication cannot be considered as a mitigating circumstance.
(People vs. Hernandez, 91 Phil. 334, 344)
Reasons for the alternative circumstance of intoxication.
As a mitigating circumstance, it finds its reason in the fact that
when a person is under the influence of liquor, his exercise of will
power is impaired.
As an aggravating circumstance, because it is intentional, the
reason is that the offender resorted to it in order to bolster his courage
to commit a crime.
It is aggravating when intoxication is habitual, because the
constant use of intoxicating liquor lessens the individual resistance
to evil thoughts and undermines the will power making himself a
potential evildoer against whose activities, society has the right
for its own protection to impose a more severe penalty. (People vs.
Amenamen, supra)
481
Art. 15 ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of Offender
482
Presumption is that intoxication is accidental.
The prosecution must prove that the intoxication of the offender
is habitual or intentional. (People vs. Dungka, 64 Phil. 421, 426)
In the absence of proof to the contrary, it will be presumed that
intoxication is not habitual but accidental, and the fact that the accused
was drunk at the time of the commission of the crime must
then be considered as a mitigating circumstance. (U.S. vs. Fitzgerald,
2 Phil. 419, 422; People vs. Dacanay, 105 Phil. 1265, 1266 [Unrep.],
citing People vs. Dungka, supra)
Non-habitual intoxication, lack of instruction and obfuscation
are not to be taken separately.
As non-habitual intoxication implies a disturbance of the reasoning
powers of the offender, his lack of instruction cannot have any
influence over him, and obfuscation which has the same effect on his
reasoning powers cannot be considered independently of non-habitual
intoxication. (People vs. Baterna, 49 Phil. 996, 997-998)
The trial court considered them separately as three distinct
mitigating circumstances and imposed a penalty one degree lower.
The Supreme Court considered them as one mitigating circumstance
only and modified the penalty imposed by the trial court by raising
it and imposing the proper penalty in the minimum period.
Degree of instruction and education of the offender.
Low degree of instruction and education or lack of it is generally
mitigating. High degree of instruction and education is aggravating,
when the offender avails himself of his learning in committing the
crime.
Lack of instruction, as mitigating.
Lack of instruction cannot be taken into account where the
defendant admitted that he studied in the first grade in a public
elementary school. Art. 15 applies only to him who really has not
received any instruction. (People vs. Mangsant, 65 Phil. 548, 552)
But the accused lacks education and instruction, if he did not
finish even the first grade in elementary school. (People vs. Limaco,
88 Phil. 35, 44)
ALTERNATIVE CIRCUMSTANCES Art. 15
Degree of Instruction and Education of Offender
483
Lack of instruction is not mitigating where the accused finished
Grade Two and answered in Tagalog, questions put to him
in English. (People vs. Luna, No. L-28812, July 31, 1974, 58 SCRA
198, 208)
Having studied up to sixth grade is more than sufficient schooling
to give the accused a degree of instruction as to properly apprise him
of what is right and wrong. (People vs. Pujinio, No. L-21690, April
29, 1969, 27 SCRA 1185, 1189-1190)
Lack of sufficient intelligence is required in illiteracy.
Not illiteracy alone, but also lack of sufficient intelligence are
necessary to invoke the benefit of the alternative circumstance of
lack of instruction, the determination of which is left to the trial
court.
A person able to sign his name but otherwise so densely ignorant
and of such low intelligence that he does not fully realize the consequences
of his criminal act, may still be entitled to this mitigating
circumstance. On the other hand, another person unable to write
because of lack of educational facilities or opportunities, may yet be
highly or exceptionally intelligent and mentally alert that he easily
realizes the full significance of his acts, in which case he may not
invoke this mitigating circumstance in his favor. (People vs. Ripas,
95 Phil. 63, 70-71; People vs. Geronimo, No. L-35700, Oct. 15, 1973,
53 SCRA 246, 261-262)
Mere illiteracy is not sufficient to constitute a mitigating circumstance.
There must be also lack of intelligence. (People vs. Retania,
No. L-34841, Jan. 22, 1980, 95 SCRA 201, 221; People vs. Abanes,
No. L-30609, Sept. 28, 1976, 73 SCRA 44, 47)
Lack of sufficient instruction is not mitigating when the offender
is a city resident who knows how to sign his name.
Appellant is guilty of murder with the qualifying circumstance
of treachery and the aggravating circumstance of evident premeditation.
The mitigating circumstance of lack of sufficient instruction
cannot be justified as appellant is a city resident and even knows
how to sign his name. The judgment is modified and appellant is
sentenced to reclusion perpetua. (People vs. Cabrito, 101 Phil. 1253,
1254 [Unrep.])
Art. 15 ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of Offender
Lack of instruction must be proved by the defense.
The mitigating circumstance of lack of instruction must be
proved positively and directly and cannot be based on mere deduction
or inference. (People vs. Bernardo, C.A., 40 O.G. 1707)
Lack of education must be proved positively and cannot be based
on mere deduction or inference. (People vs. Retania, supra, citing
People vs. Bernardo, supra, and People vs. Sakam, 61 Phil. 64)
Lack of instruction needs to be proven as all circumstances
modifying criminal liability should be proved directly and positively.
(People vs. Macatanda, No. L-51368, Nov. 6,1981,109 SCRA 35, 38,
citing People vs. Melendrez, 59 Phil. 154)
In the absence of any basis on record on which to judge the degree
of instruction of the accused, no evidence having been taken relative
thereto because he entered a plea of guilty, the circumstance of lack of
instruction cannot be mitigating. (People vs. Macatanda, supra, at 39)
The question of lack of instruction cannot be raised for the
first time in appellate court.
It is for the trial court rather than the appellate court to find
and consider the circumstance of lack of instruction. (People vs. Sari,
99 Phil. 1040 [Unrep].)
When the trial court did not make any findings as to the degree
of instruction of the offenders, on appeal that alternative circumstance
cannot be considered in fixing the penalty to be imposed on the accused-
appellants. (People vs. Diaz, No. L-24002, Jan. 21, 1974, 55
SCRA 178, 187)
The trial court's appreciation of lack of instruction as a mitigating
circumstance was not disturbed on appeal because the said court
was in a position to gauge appellant's level of intelligence from his
appearance, demeanor and manner of answering questions. (People
vs. Manuel, Nos. L-23786-87, Aug. 29,1969, 29 SCRA 337, 346)
Ordinarily, low degree or lack of instruction is mitigating in
all crimes.
Lack of instruction or low degree of it is appreciated as mitigating
circumstance in almost all crimes. (U.S. vs. Reguera, 41 Phil. 506,
484
ALTERNATIVE CIRCUMSTANCES Art. 15
Degree of Instruction and Education of Offender
520 [robbery with homicide]; People vs. Baltazar, No. L-30557, March
28, 1980, 96 SCRA, 556, 562-563 [Anti-Subversion Law]; People vs.
Talok, 65 Phil. 696, 707 [murder]; People vs. Hubero, 61 Phil. 64, 66
[homicide])
Exceptions:
1. Not mitigating in crimes against property, such as estafa,
theft, robbery, arson. (U.S. vs. Pascual, 9 Phil. 491, 495
[estafa]; People vs. De la Cruz, 77 Phil. 444, 448; People
vs. Melendrez, 59 Phil. 154, 155-156 [robbery]; People
vs. San Pedro, No. L-44274, Jan. 22, 1980, 95 SCRA 306,
310 [robbery with homicide]; People vs. Condemena, No.
L-22426, May 29, 1968, 23 SCRA 910, 920 [robbery with
homicide])
But in U.S. vs. Maqui, 27 Phil. 97, 101, lack of instruction
was mitigating in theft of large cattle committed
by a member of an uncivilized tribe of Igorots or in Igorot
land.
But see People vs. Macatanda, No. L-51368, Nov. 6, 6,1981,109 SCRA 35, 38,
citing People vs. Melendrez, 59 Phil. 154)
In the absence of any basis on record on which to judge the degree
of instruction of the accused, no evidence having been taken relative
thereto because he entered a plea of guilty, the circumstance of lack of
instruction cannot be mitigating. (People vs. Macatanda, supra, at 39)
The question of lack of instruction cannot be raised for the
first time in appellate court.
It is for the trial court rather than the appellate court to find
and consider the circumstance of lack of instruction. (People vs. Sari,
99 Phil. 1040 [Unrep].)
When the trial court did not make any findings as to the degree
of instruction of the offenders, on appeal that alternative circumstance
cannot be considered in fixing the penalty to be imposed on the accused-
appellants. (People vs. Diaz, No. L-24002, Jan. 21, 1974, 55
SCRA 178, 187)
The trial court's appreciation of lack of instruction as a mitigating
circumstance was not disturbed on appeal because the said court
was in a position to gauge appellant's level of intelligence from his
appearance, demeanor and manner of answering questions. (People
vs. Manuel, Nos. L-23786-87, Aug. 29,1969, 29 SCRA 337, 346)
Ordinarily, low degree or lack of instruction is mitigating in
all crimes.
Lack of instruction or low degree of it is appreciated as mitigating
circumstance in almost all crimes. (U.S. vs. Reguera, 41 Phil. 506,
484
ALTERNATIVE CIRCUMSTANCES Art. 15
Degree of Instruction and Education of Offender
520 [robbery with homicide]; People vs. Baltazar, No. L-30557, March
28, 1980, 96 SCRA, 556, 562-563 [Anti-Subversion Law]; People vs.
Talok, 65 Phil. 696, 707 [murder]; People vs. Hubero, 61 Phil. 64, 66
[homicide])
Exceptions:
1. Not mitigating in crimes against property, such as estafa,
theft, robbery, arson. (U.S. vs. Pascual, 9 Phil. 491, 495
[estafa]; People vs. De la Cruz, 77 Phil. 444, 448; People
vs. Melendrez, 59 Phil. 154, 155-156 [robbery]; People
vs. San Pedro, No. L-44274, Jan. 22, 1980, 95 SCRA 306,
310 [robbery with homicide]; People vs. Condemena, No.
L-22426, May 29, 1968, 23 SCRA 910, 920 [robbery with
homicide])
But in U.S. vs. Maqui, 27 Phil. 97, 101, lack of instruction
was mitigating in theft of large cattle committed
by a member of an uncivilized tribe of Igorots or in Igorot
land.
But see People vs. Macatanda, No. L-51368, Nov. 6,
1981,109 SCRA 35,38,39, where the accused claimed that
he was a Moslem belonging to a cultural minority, and
the high court said: "Some later cases which categorically
held that the mitigating circumstance of lack of instruction
does not apply to crimes of theft and robbery leave us with
no choice but to reject the plea of appellant. Membership
in a cultural minority does not per se imply being an
uncivilized or semi-uncivilized state of the offender, which
is the circumstance that induced the Supreme Court in the
Maqui case, to apply lack of instruction to the appellant
therein who was charged also with theft of large cattle.
Incidentally, the Maqui case is the only case where lack of
instruction was considered to mitigate liability for theft, for
even long before it, in U.S. vs. Pascual, 9 Phil. 491, a 1908
case, lack of instruction was already held not applicable
to crimes of theft or robbery. The Maqui case was decided
in 1914, when the state of civilization of the Igorots has
not advanced as it had in reaching its present state since
recent years, when it certainly can no longer be said of
any member of a cultural minority in the country that he
is uncivilized or semi-uncivilized."
485
Art. 15 ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of Offender
In robbery with homicide, where the accused was
illiterate, lack of instruction was held to be mitigating.
(People vs. Patricio, 79 Phil. 227,234; People vs. Mantawar,
80 Phil. 817, 823)
But in another case, it was held that the benefit of lack
of instruction is unavailing to mitigate the crime of robbery
with homicide as this circumstance is not applicable to
the crime of theft or robbery, and much less to the crime
of homicide. No one, however unschooled he may be, is so
ignorant as not to know that theft or robbery, or assault
upon the person of another is inherently wrong and a
violation of the law. (People vs. Enot, No. L-17530, Oct.
30, 1962, 6 SCRA 325, 329)
In a later case, also of robbery with homicide, it was
also held that belonging to the cultural minorities cannot
conceivably reduce, from the subjective point of view, the
defendants' awareness of the gravity of their offense, for
robbery and killing are by their very nature just as wrong to
the ignorant as they are to the enlightened. (People vs. Salip
Mania, No. L-21688, Nov. 28,1969, 30 SCRA 389, 397)
2. Not mitigating in crimes against chastity, such as rape and
adultery. No one is so ignorant as not to know that the
crime of rape is wrong and in violation of the law. (Malesa
vs. Director, 59 Phil. 406, 408; U.S. vs. Borjal, 9 Phil. 140,
141; People vs. Lopez, 107 Phil. 1039, 1042)
How about in treason?
Not mitigating, because love of country should be a natural
feeling of every citizen, however unlettered or uncultured he may
be. (People vs. Lansanas, 82 Phil. 193,196; People vs. Cruz, 88 Phil.
684, 687-688)
But in another case, the accused was also charged with treason.
His schooling was confined in studying and finishing caton only. Held:
Lack of instruction is mitigating. (People vs. Marasigan, 85 Phil. 427,
431)
Lack of education and instruction is not mitigating in murder.
Lack of education and instruction cannot mitigate appellant's
guilt because to kill is forbidden by natural law which every rational
486
ALTERNATIVE CIRCUMSTANCES Art. 15
Degree of Instruction and Education of Offender
487
being is endowed to know and feel. (People vs. Mutya, G.R. Nos. L-
11255-56, Sept. 30, 1959 [Unrep.])
Exception:
Although ordinarily lack of instruction is not considered as
an extenuating circumstance in the crime of homicide or murder,
nevertheless, in the instant cases, the same may be so considered
because the crimes would probably not have been committed if the
accused were not so ignorant as to believe in witchcraft. The trial
court likewise did not err in failing to consider the lack of instruction
as mitigating circumstance in the crime of arson as the same does
not extenuate offenses against property. (People vs. Laolao, G.R. Nos.
L-12978-80, Oct. 31, 1959 [Unrep.])
It is also considered mitigating in murder in the following
case:
The crime was murder qualified by evident premeditation, the
defendants having "for a long time" sought the encounter. There
was also abuse of superior strength — four men with knives against
one unarmed person. But this is compensated by lack of instruction,
these appellants being "ignorant people living in a barrio almost
20 kilometers away from civilization." Consequently, the medium
degree of the penalty for murder — reclusion perpetua — becomes
imposable. (People vs. Mantala, G.R. No. L-12109, Oct. 31, 1959)
High degree of instruction, as aggravating.
Examples:
A lawyer, who, with abuse of his education and learning, commits
estafa.
A medical student who was convicted of slander by deed. (People
vs. Roque, C.A., 40 O.G. 1710)
Degree of instruction is aggravating when the offender availed
himself or took advantage of it in committing the crime.
Thus, a doctor, who, using his knowledge, prepared certain
kind of poison to kill his victim in such a way as to avoid detection,
may be considered as having taken advantage of his high degree of
instruction and education.
Art. 16 ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of Offender
But the fact that the accused was a lawyer was not considered
aggravating in physical injuries. (People vs. Sulit, CA-G.R. No. 21102-
R, Sept. 29, 1959) He did not take advantage of his high degree of
education.