AGGRAVATING CIRCUMSTANCE Which if attendant in the commission of the crime serve to increase the penalty without however exceeding

g 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. motivating power itself 2. place of the commission 3. means and ways employed 4. time 5. personal circumstances of the offender/offended party FOUR KINDS OF AGGRAVATING CIRCUMSTANCE 1. GENERIC apply to all crimes Example: dwelling, nighttime, or recidivism 2. SPECIFIC particular crimes Example: Ignonimy in crimes against chastity or cruelty and treachery in crimes against persons 3. QUALIFYING change the nature of the crime Example: Alevosia (treachery) or evident premeditation qualifies the killing of a person to murder. 4. INHERENT must of necessity accompany the commission of the crime. Example: Evident premeditation is inherent in robbery, theft, estafa, adultery and concubinage. QUALIFYING VS GENERIC GENERIC 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 May be compensated by a mitigating circumstance Not alleged in the information QUALIFYING 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. Cannot be offset by a mitigating circumstance To be such must be alleged in the information (it is an integral part of the offense)

AGGRAVATING CIRCUMSTANCE NOT ALLEGED

 Even if not alleged in the information, may be proved over the objection of the defense This is true only as regards a generic aggravating circumstance Does not violate the constitutional right of the accused to be informed of the nature and cause of accusation against him. If not alleged in the information TREACHERY is only generic aggravating circumstance: Although the 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. Treachery is merely a generic aggravating circumstance when not alleged in the information but just proven at the trial. AGGRAVATING CIRCUMSTANCES WHICH DONT HAVE THE EFFECTS OF INCREASING THE PENALTY 1. Aggravating circumstance: a. which in themselves constitute a crime specially punishable by law b. which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. Examples: i. ii. crime be committed by means of fire or explosion (arson or crime involving destruction.). not to be considered to increase the penalty act committed in the dwelling of the offended party or that the crime be committed after an unlawful entry or that as a means to the commission of a crime a wall, roof, floor, door, or window be broken is included by in defining robbery in an inhabited house.

2. Any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. Examples: i. ii. evident premeditation is inherent in theft, robbery, estafa, adultery and concubinage taking advantage of public position is inherent in crimes where the offenders, committed the crime in the exercise of their functions, such as in bribery malversation

AGGRAVATING CIRCUMSTANCES WHICH ARE PERSONAL TO THE OFFENDERS a. moral attributes of the offender b. from private relations with the offended party 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.

AGGRAVATING CIRCUMSTANCES WHICH DEPEND FOR THEIR APPLICATION UPON THE KNOWLEDGE OF THE OFFENDERS a. material execution of the act b. 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. AGGRAVATING CIRCUMSTANCES NOT PRESUMED should be proved as fully as the crime itself in order to increase the penalty

TO BE APPRECIATED, QUALIFYING AND AGGRAVATING CIRCUMSTANCES MUST BE ALLEGED IN THE INFORMATION this rule may be given retroactive effect in the light of the well-established rule that statute regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage.

IF NOT ALLEGED, THEY MAY STILL BE CONSIDERED IN THE AWARD FOR DAMAGES. Art. 14 Aggravating circumstances The following are aggravating circumstances:
Parag. 1. That advantage be taken by the offender of his public position.

BASIS: personal circumstance of the offender and also by the means used to secure the commission of the crime. Applicable only to public officer who takes advantage of his public position advantage be taken by the offender of his public position must use the influence, prestige or ascendancy which his office gives him as the means by which he realizes his purpose.

NOT PRESENT WHEN A CONGRESSMAN OFFERED RESISTANCE TO A PEACE OFFICER. PRESENT WHEN A COUNCILOR COLLECTS FINES AND MISAPPROPRIATES THEM US vs TORRIDA FACTS councillor of the town of Appari ordered that deaths of all large animals must be reported to him as councilman owners were induced to pay the accused supposed fines on the belief that such were required

HELD -

he spent the money

it was on account of his being councillor that the parties believed that he had the right to collect fines and it was for this reason that they made the payments. By taking advantage of his public position, deceive and defraud the injured parties out of the money they paid him. Crime committed by Torrida is estafa by means of deceit.

WHEN THE PUBLIC OFFICER DID NOT TAKE ADVANTAGE OF THE INFLUENCE OF HIS POSITION, THIS AGGRAVATING CIRCUMSTANCE IS NOT PRESENT US vs DACUYCUY FACTS HELD Punished as a private individual without this aggravating circumstance. Dacuycuy did not avail himself of the influence, prestige or ascendancy which his position carried with it, when he committed the crime of estafa with abuse of confidence. He received the money in his private capacity 39 persons requested the accused, then a councillor, to purchase cedulas for them giving him P39.00 Took only 16 cedulas and spent the rest of the money

A justice of the peace misappropriated the money he received from the debtor in an extra judicial 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 judgement He did not take advantage of his official position in the commission of the crime of estafa.

There must be proof that the accused took advantage of his public position

2. That the crime be committed in contempt of or with insult to the public authorities. 3. That the act be committed with insult or in disregard of the respect due to the offended party on account of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter has not given provocation. 4. That the act be committed with abuse of confidence or obvious ungratefulness.

5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship. 6. That the crime be committed in the nighttime, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense. Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic, or other calamity or misfortune. 8. That the crime be committed with the aid of armed men or persons who insure or afford impunity. 9. That the accused is a recidivist. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this Code. 10. That the offender has been previously punished 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. 11. That the crime be committed in consideration of a price, reward, or promise. 12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin. 13. That the act be committed with evident premeditation. 14. That craft, fraud, or disguise be employed. 15. That advantage be taken of superior strength, or means be employed to weaken the defense. 16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act. 18. That the crime be committed after an unlawful entry.

There is an unlawful entry when an entrance is effected by a way not intended for the purpose. 19. That as a means to the commission of a crime a wall, roof, floor, door, or window be broken. 20. That the crime be committed with the aid of persons under fifteen years of age or by means of motor vehicles, motorized watercraft, airships, or other similar means. (As amended by Rep. Act No. 5438, approved Sept. 9, 1968.) 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission.