GRAVE OFFENSE COMMITTED AGAINST SURVIVING SPOUSE OF DECEASED RELATIVE

Is this paragraph applicable?

-Yes, because the relationship by affinity created between the surviving spouse and the blood relatives of the deceased
spouse survives the death of either party to the marriage, which created the affinity. (Intestate Estate of Manolita
Gonzales Vda. de Carungcong vs. People)

Ex: A (surviving husband of B) was killed by C, B’s brothers caused serious physical injuries to C immediately after
learning of A’s death.
 B’s brothers would be entitled to the mitigating circumstance of vindication of grave offense

Is lapse of time allowed between the grave offense and the vindication?
-Yes.

“Immediate” : “proxima”

Is slapping a grave offense?

-Yes.

Ex: A (accused) was slapped by B (deceased) in the presence of many persons a few hours before A killed B
 YES. MITIGATING CIRCUMSTANCE that the act was committed in the IMMEDIATE VINDICATION OF A
GRAVE OFFENSE
 Although the grave offense (slapping), which engendered perturbation of mind, was not so immediate, it was held
that the influence thereof, by reason of its gravity and the circumstances under which it was inflicted, lasted until the
moment the crime was committed. (People vs Parana)

Ex: Offended husband killed the paramour one day after the adultery (People vs Palaan)
 YES. Still proximate

Ex: Thomas (deceased) abducted Aliya, the daughter of Aquino (accused) [grave offense] and the killing of Thomas
[vindication] was two days or three days. Aquino belongs to a family of old customs to whom the elopement of a
daughter with a man constitutes grave offense to their honor an causes disturbance of the peace and tranquility of the
home and spreads anxiety in the minds of the family members.
YES. MITIGATING CIRCUMASTANCE OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE
 Although the elopement took place on Jan 4, and the aggression on Jan 7, the offense did not cease while Aliya’s
whereabouts remained unknown and her marriage to Thomas unlegalized. There was no interruption from the time
the offense was committed to the vindication.

Can interval of time negate vindication?

-Yes.

Ex: Kiko (deceased) boxed Iggi (accused) several times in the face resulting in the conviction of Kiko for less serious
physical injuries. After 9 months, Kiko appealed, pending which Iggi killed him.
 NO. It cannot be said that the second incident was an immediate or a proximate vindication of the first.

Ex: Aliya (deceased) uttered at 11AM in the presence of Louise (accused) and her officemates, “Nag-iistambay pala
ditto ang magnanakaw” or “Hindi ko alam na itong Civil Service pala ay istambayan ng magnanakaw” At 5PM, Louise
killed Aliya.
 NO mitigating circumstance of vindication of a grave offense

Ex: Aquino (accused) heard Job (deceased) say that Aquino’s daughter is a flirt, and Aquino stabbed Job 2 months
later
 NO. Mitigating circumstance of immediate vindication of a grave offense NOT considered because Aquino had
sufficient time to recover his serenity.
 The supposed vindication (stabbing) did not immediately or proximately follow the alleged insulting and
provocative remarks
 PROVOCATION
-Made directly only to the person committing the felony
-The cause that brought about provocation need not be a
grave offense
-It is necessary that the provocation or threat
immediately preceded the act
-No interval of time between the provocation and the
commission of the crime
VINDICATION
-Grave offense may be committed also against the
offender’s relatives mentioned by the law
-The offended party must have done a grave offense to
the offender or his relatives mentioned by the law
-The vindication of the grave offense may be proximate
-There can be interval of time between the grave offense
done by the offended party and the commission of the
crime by the accused is

Why is interval of time allowed in vindication?

-Because 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

Is killing a relative a grave offense?

-Yes.

Can immediate vindication of a grave offense and impulse so powerful as naturally to have produced passion or
obfuscation co-exist?
-No.

How to determine the gravity of offense in vindication?

-The court decides it considering:
1) Social standing of the person
2) Place
3) Time when the insult was made

Ex: During a fiesta, 70 yr old man asked Allan for some roast pig. In the presence of many guests, Allan insulted the
old man saying “There is no more. Come here and I will make roast pig of you.” A little later, while Allan was
squatting down, the old man came up behind him and struck him on the head with an axe.
 YES, It was a serious matter to an old man, to be made a joke in the presence of many guests.
 The old man was given the benefit of the mitigating circumstance of vindication of a grave offense.
 Age and place were considered in determining the gravity of the offense.

What are considered grave offense?

-Remark of Aqui before the guests that Aquino lived at the expense of his wife.
-American forces had just occupied Manila, Belen told Puring “You are a Japanese spy.” (time was considered)
-Aquino kills Gustavo for having found him in the act of committing an attempt against Sheila (Aquino’s wife).
Aquino acted in vindication of a grave offense against his and Sheila’s honor
-Sofia (victim) insulted Diana’s (accused) father by telling him “Ichura mong lalake” Diana attacked Sofia acted in
vindication of a grave offense to her father

Should provocation be proportionate to the damage caused by the act and adequate to stir one to its commission?
-Yes.

What is the basis of paragraph 5?

-Diminution of the conditions of voluntariness

Ex: Aliya made a remark in the presence of Trish that the Civil Service Commission is a hangout of thieves. Trish felt
insulted because she was facing criminal and administrative charges involving her honesty and integrity.
 The remark was general in nature and not specifically directed to Trish.
 If Trish felt insulted, that was her own reaction since other people may not have known about her charges.
 Remark is NOT a grave offense against Trish (accused).
Is vindication of a grave offense compatible with passion or obfuscation?
-No.

Paragraph 6 – That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.

What does this paragraph require?

1. The accused acted upon an impulse
2. The impulse must be so powerful that it naturally produced passion or obfuscation in him

Why is passion or obfuscation mitigating?

-Because 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.

Where should passion or obfuscation arise from to be a mitigating circumstance?

-When they arise from lawful sentiments

Even if there is passion or obfuscation, when is there no mitigating circumstance?

-When the act is committed in a spirit of lawlessness or revenge

Requisites of Mitigating Circumstance of Passion or Obfuscation

1. That there be an act, both unlawful and sufficient to produce such a condition of mind
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

What should the act of the offended party be?

-It must be unlawful or unjust

What should provoke the crime committed by the accused?

-Prior unjust or improper acts of the injured party

Ex: Common-law wife (deceased) left the common home and refused to go home with the common-law husband
(accused), was acting within her rights and the common-law husband had no legitimate right to compel her to go with
him.
 NO. The act of the common-law wife in refusing is provocative but it was NOT sufficient to produce passion and
obfuscation

Ex: Albie killed his wife on the occasion when she visited her aunt’s husband. Albie was jealous and his wife refused
to return to his house until her uncle arrived.
 YES. MITIGATING CIRCUMSTANCE of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.

Ex: Owner, upon seeing the person who stole his carabao, shot the supposed thief.
 YES. MITIGATING CIRCUMSTANCE of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.

Ex: Celina (deceased) created trouble during the wake of the departed father of Abby (acused) which scandalized the
mourners and offended the grieving family. Celina’s acts were unlawful and sufficient to infuriate Abby.
 YES. MITIGATING CIRCUMSTANCE of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.

Ex: Thomas (accused) hit Nikko (deceased) upon seeing Nikko hit his 4 yr old son. Thomas actuation arose from a
natural instinct that impels a father to rush to rescue his son, regardless of whether the son was right or wrong.
 YES. MITIGATING CIRCUMSTANCE of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.

Is exercise of a right or fulfillment of duty a proper source of passion or obfuscation?

-No.

Ex: A (accused) killed B (deceased) when B was about to take the carabao of A to the barrio lieutenant.
 B’s action of taking A’s carabao to the barrio lieutenant and demanding payment for the sugarcane destroyed by
that carabao and refused to pay, was perfectly legal and proper
 No reasonable cause for provocation to A
 A acted upon an impulse so powerful was NOT justified because B was clearly within his right in what he did.

Ex: Mother of the child, killed by B (accused), had the perfect right to reprimand B for indecently converting the
family’s bedroom into a rendezvous of herself and her lover.
 B CANNOT invoke the mitigating circumstance of passion or obfuscation to minimize her liability for the murder
of the child.

Ex: A (accused) was making a disturbance on a public street and a policeman came to arrest A. Anger and indignation
of A resulted from the arrest.
-CANNOT be considered passion or obfuscation because the policeman was performing a lawful act.

Should the act be sufficient to produce such a condition of mind?

-Yes.

Ex: Cause of the loss of self-control was trivial and slight, 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
accused.
 Obfuscation is not mitigating.

Is there passion or obfuscation after 24 hours, or several hours or half an hour?

-No, 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.
-Even if at least half an hour intervened between the previous fight and the subsequent killing of the deceased by the
accused.

Ex: 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
 NO. Cannot be treated as mitigating circumstance if the killing took place 1 month and 5 days later

Ex: Aliya wrote articles assailing Diana’s official integrity and published for an appreciable period long enough for
pause and reflection.
 NO passion or obfuscation

Why should there be no mitigating circumstance of passion or obfuscation after 24 hrs or several hours/30 mins?
-Because 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.

Can obfuscation be mitigating in a crime which was planned and calmly meditated?
-No, circumstance of passion and obfuscation cannot be mitigating in a crime which is planned and calmly meditated
before its execution.

Can impulse upon which the accused acted was deliberately fomented by him for a considerable period of time be
mitigating?
-No, there is no passion and obfuscation nor proximate vindication of a grave offense where the killing was made 4
days after the stabbing.

Is vengeance a lawful sentiment?

-No.

May passion and obfuscation build up and strengthen over time?

-Yes, they do not need to be felt only in seconds before the commission of the crime but it may build up and strengthen
over time until it can no longer be repressed and will ultimately motivate the commission of the crime.

Ex: The victim threatened to molest accused’s daughter but also accused him in public of having incestuous relations
with his mother, insulting him in view of his immediate superior.
 YES. Passion may linger and build up over time as repressed anger enough to obfuscate reason and self-control.

Where must passion or obfuscation arise from?

-Lawful sentiments.

Where can loss of reason and self-control not come from?

-They cannot come from vicious, unworthy, and immoral passions

Ex: 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. (US vs Hicks)
 Accused acted with obfuscation because of jealousy
 NO mitigating circumstance considered because the causes which mitigate the criminal responsibility for the loss
of self-control originate from legitimate feelings, and not from vicious, unworthy and immoral passions.

Ex: Thomas (accused) was in the heat of passion, killing his common-law wife Aliya (deceased) upon discovering her
in flagrante (criminal caught in the act of committing an offense) in carnal communication with a common
acquaintance.
 YES. Thomas was entitled to 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.

*Difference between the 2: in Hicks, the cause of passion and obfuscation of the accused was his vexation,
disappointment, and anger by the refusal of the woman to continue to live in illicit relations with him, which she had
perfect right to do.

Ex: (People vs Engay) Sheila (accused), as common-law wife, lived with Aquino (deceased) for 15 years, whose house
she helped support. Later, Aquino married another woman. Sheila killed him.
 YES. Mitigating circumstance of passion or obfuscation because of the natural feeling of despair in the woman
who saw her life broken and found herself abandoned by the man she considered for 15 years as her husband and
made so many sacrifices for.

Ex: Marciano and Bea lived as husband and wife for 3-4 years until Marciano left their common dwelling. Bea stabbed
him with a pen-knife. He asked why, she replied that Marciano, after taking advantage of her abandoned her.
 YES. Mitigating circumstance of obfuscation should be taken into consideration because of the peculiar
circumstances and the harsh treatment which Marciano gave her short time before she stabbed him.

Ex: Krissia’s (deceased) flat rejection of the entreaties of Sam (accused) for her to quit her calling as a hostess and
return to their former relation, aggravated by her sneering statement that Aliya was penniless and invalid, provoked
Sam into losing her head and stabbing Krissia. Sam had previously reproved Krissia for allowing herself to be caressed
by a stranger. Sam was the husband whose wife was being used by one Ceej for purposes of prostitution. This remark
deeply wounded the feelings of Sam that he was driven to consume a large amount of wine before visiting Krissia to
plead with her to leave her work. Krissia’s insulting refusal to renew her relationship with Sam showed her
determination to pursue a lucrative profession that permitted her to distribute her favors indiscriminately.
 YES. Sam acted on a provocation sufficiently strong to cause passion and obfuscation. Sam’s insistence that Krissia
live with him again and his rage at her rejection of the proposal cannot be properly qualified as arising from immoral
and unworthy passions.
 A monogamous liaison appears morally of a higher level than gainful promiscuity.

Is there mitigating circumstance of passion or obfuscation when Aliya’s boyfriend killed her father and brother
because her parents objected to their marriage and Aliya broke off their relationship? (People vs Gravino)
-NO. 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.

Is there mitigating circumstance of impulse so powerful as naturally to have produced passion and obfuscation when
the Celina poisoned the child?
-NO. It was actuated more by a spirit of lawlessness and revenge than any sudden impulse of natural and uncontrollable
fear and sudden burst of passion was not provoked by prior unjust or improper acts of the victim or of his parents.
-The child’s mom had the perfect right to reprimand Celina for indecently converting the family’s bedroom into a
rendezvous of herself and her lover.

What if a man raped a woman because he found himself in a secluded place with a young ravishing woman, almost
naked, and liable to succumb to the uncontrollable passion of his bestial instinct?
-NO mitigating circumstance of having acted upon an impulse so powerful as naturally to have produced passion and
it was done in spirit of lawlessness.

Can Beth invoke mitigating circumstance of passion or obfuscation if she was taking care of a 9-month-old child and
poisoned him with acid because the mother of the child scolded her after catching her on the bed of the master with a
man? (People vs Caliso)
-NO because she was actuated by spirit of lawlessness and revenge than by sudden impulse of natural and
uncontrollable fury.

How can passion and obfuscation be properly appreciated as a mitigating circumstance?

-It must arise from lawful sentiments and not from a spirit of lawlessness or revenge or from anger and resentment.

Ex: Marcelo was infuriated upon seeing his brother Carlito shot by Jose. The first time, Marcelo hacked Jose and the
second time Marcelo hacked Jose. Marcelo hacked Jose right after seeing Jose shoot Carlito and Marcelo refrained
from doing anything else after.
 YES. He can invoke mitigating circumstance of passion and obfuscation.

Is there mitigating circumstance of passion and obfuscation if in the example, Marcelo went back to Jose who was
already prostate on the ground and hardly moving, hacked Jose again?
-NO. It was a clear case of someone acting out of anger and in spirit of revenge.

Can excitement of a person engaged in a fight after receiving a beating be considered to mitigate liability?
-NO it is not an impulse considered in law so powerful as to produce passion or obfuscation sufficiently.

Ex: A and B were wrestling and after being separated, A followed B and wounded him with a knife as B was entering
a vehicle.
 NO. A cannot claim that the fight produced in him entire loss of reason or self-control because the existence of
such excitement is inherent in all who quarrel and come to blows do not constitute a mitigating circumstance.
 A must have acted under the impulse of special motives.

Is there mitigating circumstance of passion or obfuscation if record discloses that each used very insulting language
concerning the other and they must have been greatly excited as a result of the quarrel?
-YES. The acts complained of were committed by the defendant soon after the quarrel had taken place.

Can obfuscation arising from jealousy be mitigating?

-Yes.

Ex: Aliya killed Trish because Trish did not deliver the letter of Mara to Kash, on which letter Aliya had pinned her
hopes of settling the case against her amicably. The failure of Trish to deliver the letter is a prior unjust and improper
act sufficient to produce great excitement and passion in Aliya as to confuse her reason and impel her to kill Trish.
 YES. It was a legitimate and natural cause of indignation and anger.

Ex: Thomas killed Nikko, which arose out of rivalry for the hand of Aliya.
 YES. Passion or obfuscation is mitigating. Obfuscation arising from jealousy.
Ex: The feeling of resentment resulting from rivalry in amorous relations with a woman.
 YES, it is a powerful instigator of jealousy and prone to produce anger and obfuscation.

Is obfuscation mitigating when relationship is illegitimate?

-NO, it must be lawful.

Must the cause producing passion or obfuscation come from the offended party?
-Yes.

Ex: Albie and Adam believed that Andi would inflict wounds upon their father, who was already wounded, in defense
of their father, immediately killed Andi. Under this excitement, Albie and Adam also killed C who was near the scene
at the time.
 NO mitigating circumstance of passion and obfuscation towards C since C was not part of the quarrel and did not
provoke the sons. The circumstance could be applied if the passion came from the injured party.

May passion or obfuscation lawfully arise from causes existing only in the honest belief of the offender?
-YES.

Ex: The belief of the A that B had caused his dismissal from his employment is sufficient to confuse his reason and
impel him to commit the crime.

Ex: The defendants believed 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.

Ex: A believed that Jayson and Roldan threw stones at his 2 minor daughters and that Jayson had burnt the hair.
Mitigating circumstance of passion was considered.

What is the basis of paragraph 6?

-Diminution of intelligence and intent

What if provocation and obfuscation arise from one and the same cause?
-They should be treated as only one mitigating circumstance.

Ex: The provocation that caused the obfuscation of the appellants came from the same incident, that is the maltreatment
by the deceased to the appellants.
 NO. The two mitigating circumstances cannot be considered as 2 distinct and separate circumstances but as one.

Ex: Cesar killed his wife Sunshine during a quarrel because he, who had no work, resented to her suggestion to join
her brother in the business of cutting logs.
 NO. Mitigating circumstance of provocation and mitigating circumstance of obfuscation cannot be considered.

Can vindication of grave offense co-exist with passion and obfuscation?

-NO. At most, only one of them can be considered but not simultaneously.

What if the accused assailed his victim in the proximate/immediate vindication of a grave offense?
-He cannot successfully allege that he was also blinded by passion and obfuscation because these 2 mitigating
circumstances cannot both exist based on one and the same fact or motive.

What is the exception, when vindication of grave offense and passion or obfuscation can be appreciated?
-When there are other facts, although closely connected with the fact upon which one circumstance is premised, the
other may be appreciated as based on the other fact.

Ex: The deceased, a Chinese, had eloped with the daughter of the accused, and later when the Chinese saw the accused
coming, the Chinese ran upstairs in his house. There are 2 facts closely connected:
1) Elopement  which is a grave offense to a family of old customs
2) Refusal to deal with him  a stimulus strong enough to produce passion
 Two mitigating circumstances of passion and vindication were considered in favor of the accused.
 Vindication was based on the fact of elopement and passion was based on the fact that the deceased instead of
meeting him and asking for forgiveness, ran away from the accused.

Is passion or obfuscation compatible with lack of intention to commit so grave a wrong as that committed?
-YES, as it was held in People vs Cabel.

Is passion or obfuscation compatible with treachery?

-NO. Passion cannot co-exist with treachery because in passion, the offender loses his control and reason, while in
treachery, the means employed are consciously adopted.
-One 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 Domingo)

Can vindication or obfuscation be considered when the person attacked is not the one who gave the cause?
-NO. Vindication and obfuscation cannot be considered, not only because the elopement of Lucila and Eleuterio and
her abandonment by Eleuterio took place before the commission of the crime, but also because the deceased (the other
woman) was not the one who eloped with and abandoned her.

Can passion or obfuscation co-exist with evident premeditation?

-NO. The aggravating circumstance of evident premeditation cannot co-exist with the circumstance of passion and
obfuscation.

What is the essence of premeditation?

-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 sufficient to arrive at a composed judgment.

PASSION OR OBFUSCATION IRRESISTIBLE FORCE

-Mitigating circumstance -Exempting circumstance
-Cannot give rise to an irresistible force -Requires physical force
-In the offender himself -Must come from a third person
-Must arise from lawful sentiments -The irresistible force is unlawful

PASSION OR OBFUSCATION PROVOCATION

-Produced by an impulse which may be caused by -Comes from the injured party
provocation
-The offense, which engenders/causes perturbation of -Must immediately precede the commission of the crime
mind, need not be immediate because it is only required
that the influence lasts until the moment the crime is
committed
-The effect is loss of reason and self-control on the part -The effect is loss of reason and self-control on the part
of the offender of the offender

Paragraph 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.

What are the two mitigating circumstances 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

What if the two mitigating circumstances are present?

-They should have the effect of mitigating as two independent circumstances – separately.
Requisites of Mitigating Circumstance of Voluntary Surrender (NAV)
1. That the offender had not been actually arrested
2. That the offender surrendered himself to a person in authority or his agents
3. That the surrender was voluntary

VOLUNTARINESS
How can voluntary surrender be appreciated?
-It must be spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the
authorities either because:
1) He acknowledged his guilt OR
2) He wishes to save them the trouble and expenses necessarily incurred in his search and capture

Ex: Aliya (accused) after plunging a bolo into Ian’s (victim) chest, ran toward the municipal building. Aliya saw a
patrolman, she immediately threw away her bolo and raised her hands, offered no resistance and said to the patrolman
“Here is my bolo, I stabbed the victim.”
 YES. Voluntary surrender, there was intent or desire to surrender voluntarily to the authorities. (People vs Tenorio)

Ex: After the commission of the crime, Aliya fled to a hotel to hide from the companions of the deceased who pursued
him to the hotel but could not get to him because the door was closed after Aliya entered, she did not hide from the
police authorities. Once in the hotel, Aliya dropped her weapon at the door and when the policemen came to
investigate, he admitted ownership of the weapon and voluntarily went with them. (People vs Dayrit)
- He was investigated by the fiscal the following day
- No warrant has been issued for his arrest
 YES. Mitigating circumstance of voluntary surrender.

Ex: Immediately after the shooting, Kino having all the opportunity to escape, did not but instead called up the police
department. When the police came, he voluntarily approached them and without revealing his identity, told them that
he would help with the case as he knew the suspect and the motives. When brought to the police station as possible
witness, he confided to the investigators that he was voluntarily surrendering himself and the gun he used.
 YES. These acts were indicative of his intent or desire to surrender voluntarily to the authorities. (People v Benito)

Ex: Aliya and Kino (both accused) left the scene of the crime but made several attempts to surrender to various local
officials but was not materialized for some reason. It was already a week after when they were able to surrender.
 YES. Voluntary surrender avails because 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)

Ex: Policeman ordered Kino to come down his house, but Kino did not offer any resistance nor hid. Kino brought his
bolo he used to commit the crime and voluntarily gave himself up to the authorities before he could be arrested.
 YES. These acts are sufficient to consider the mitigating circumstance of voluntary surrender in Kino’s favor.

Ex: Records reveal that Kino (accused) trooped to the police station 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. (People vs Jereza)
 YES. Kino is given the benefit of the doubt and his arrival at the station is considered as act of surrender.

Ex: No records show that the warrant of arrest of Kino had been served on him or that it had been returned unserved
for failure of the server to locate Kino. There is direct evidence that Kino voluntarily surrendered himself to the police
when he was taken into custody.
 YES. Kino is entitled to mitigating circumstance of voluntary surrender.

What are examples of NO voluntary surrender?

Ex: Warrant of arrest showed that Kino was in fact arrested.

Ex: Kino surrendered only after the warrant of arrest was served upon him.

Ex: Kino was actually arrested by his own admission or that he yielded because of the warrant of arrest.
Ex: Kino and his friends went into hiding and surrendered only when they realized that the forces of law were closing
in on them.

Ex: Kino and Mutya were asked to surrender by the police and military authorities but they refused until only much
later when they could no longer do so by force of circumstances when they knew they were completely surrounded
and no chance of escape.
 The surrender was not spontaneous because it was motivated by an intent to insure their safety. (People v Salvilla)

Ex: The search for Kino had lasted for 4 years, which belies the spontaneity of the surrender.

Ex: Kino (accused) only went to the police station to report that his wife was stabbed by another person and seek
protection as he feared that the same assailant would also stab him. (People vs Trigo)

Ex: Kino went to the PC headquarters not to surrender but to report the incident which does not evince/reveal any
desire to own the responsibility for the killing of Mutya.

Ex: Chief of Police placed Kino under arrest in his employer’s home to which that officer was summoned and it does
not appear that it was the idea of Kino to send for the police for the purpose of giving himself up.

Ex: Kino accompanied the Chief of Police to the scene of the crimes and he was not charged yet or suspected of having
taken part of the crime, the authorities were not looking for him, and would not look for him if he had not been present
at the investigation by the Chief of Police.

Ex: Kino 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.
 That is not the nature of voluntary surrender that may mitigate one’s liability.

Is it mitigating when defendant was in fact arrested?

-No.

What if Kino, after committing the offense had the opportunity to escape, voluntarily waited for the agents of the
authorities and voluntarily gave himself up?
-Kino is entitled to mitigating circumstance of voluntary surrender even if he was placed under arrest by a policeman
there.

What if the arrest of the offender was after his voluntary surrender?
-He is entitled to the mitigating circumstance of voluntary surrender.

What if the accused ran to the municipal building after the commission of the crime?
-He had the intention or desire to surrender.

What if the accused only threw his bolo upon seeing a patrolman and raised his hands and admitted stabbing the
victim?
-He had the intention to surrender voluntarily to authorities.

What if the accused was hiding from the companions of the victim but when he saw the policeman, he voluntarily
surrendered?
-He is entitled to the benefit of the mitigating circumstance of voluntary surrender.

What if the warrant of arrest had not been served or not returned unserved because the accused cannot be located?
-The surrender is mitigating.

Does the law require that surrender must be prior to the order of arrest?
-No, the law does not require that the surrender be prior to the order of arrest.
Ex: The accused presented himself in the municipal building to post the bond for his temporary release after the
commission of the crime and the issuance of the warrant of arrest.
 He is still entitled to mitigating circumstance of voluntary surrender because even if the order of arrest was issued,
it does not bar him because the law does not require that the surrender be prior to the order of arrest.

What if the accused voluntary surrendered when he found out that warrant for his arrest was issued but hasn’t been
served on him?
-He may still be entitled to mitigating circumstance.

What if the accused reported the incident to the councilor and went to the Chief of Police to tell what happened and
surrendered his bolo only?
-The facts do not constitute a mitigating circumstance of voluntary surrender because he must have voluntarily
surrendered himself to a person in authority

Can surrender of weapons equate with voluntary surrender?

-No, he must surrender himself to a person in authority.

What if the accused did not escape or hide after committing murder and accompanied the police to the scene of the
crime but he did not surrender his person and did not admit in the killing?
-It does not amount to voluntary surrender to the authorities.

What if the accused just went to the authorities to report the incident?
-It does not amount to voluntary surrender because he did not show any desire to own the responsibility for killing of
the deceased.

“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. (barrio captain and barangay chairman are considered)

“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.

Is a commanding officer a person of authority?

-Yes.

Is a chief clerk of a district engineer a person of authority?

-No.

What does the law consider as mitigating?

-The voluntary surrender of an accused before his arrest, showing either acknowledgement of his guilt or intention to
save the authorities from the trouble and expense for his search and capture.

What if the accused surrendered because after being fugitives from justice for more than 7 years, they found it
impossible to live in hostility?
-No mitigating circumstance because the surrender was not spontaneous.

Should the accused voluntary surrender to a person in authority where the crime was committed?
-No, the law does not require the place.

What should the reason of the surrender be?

-The surrender must be by reason of the commission of the crime for which defendant is prosecuted.

Can the surrender be through an intermediary?

-Yes. If the accused surrendered through the mediation of his father before any warrant of arrest had been issued, it is
mitigating.
“Spontaneous” : emphasizes the idea of an inner impulse, acting without external stimulus.

How can spontaneity of the surrender be determined?

-The conduct of the accused, not his intention alone, after the commission of the offense.

Ex: A and B fled together to Leyte after robbery-slaying. The authorities of QC had to search for them. A surrendered
to the Mayor of Biliran 12 days after the commission of the crime and only after C was discovered in a far sitio which
led to the arrest of B.
 No mitigating circumstance of voluntary surrender.

Is intention to surrender without actually surrendering, mitigating?

-No because the law requires that the accused must surrender himself.

Is there spontaneity even if the surrender is induced by fear of retaliation by the victim’s relatives?
-Yes, because the accused saved the State the time and trouble of searching for him until arrested.

Ex: A and B surrendered because their attempted escape failed when the road was blocked.
 Not mitigating because of their belief that their escape was impossible under the circumstances.

PLEA OF GUILTY

Requisites of Plea of Guilty (SOP)

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
3. That the confession of guilt was made prior to the presentation of evidence for the prosecution

When must the plea be made?

-The plea must be made before trial begins

Spontaneity
When is plea of guilty not mitigating?
-When plea of guilty on appeal because the plea of guilty must be made at the first opportunity

What is a trial de novo?

-The existence of a previous trial where evidence was presented by the prosecution

Ex: Alexis pleads not guilty in the municipal court and on appeal to the RTC, she changed her plea of not guilty to
guilty upon re-arraignment.
 NO. She is not entitled to mitigating circumstance of plea of guilty because there was no spontaneity of willingness
to admit the commission of the offense.

What happens if plea of not guilty at the preliminary investigation?

-It is no plea at all.

Ex: Lulu pleads not guilty before the municipal court at its preliminary investigation, and after the elevation of the
case to the RTC, she pleads guilty upon arraignment before the RTC.
 The plea of not guilty upon arraignment at the preliminary investigation at the municipal court is no plea at all.
 Lulu can still claim her plea of guilty in the RTC as mitigating circumstance.

Open Court
What if accused made an extrajudicial confession?
-It is not voluntary plea of guilty because it was made outside of the court.

Prior to the presentation of evidence for the prosecution

What if the accused only submits to the law only after the presentation of some evidence for the prosecution?
-No mitigating circumstance of plea of guilty.

Is it necessary that all evidence of the prosecution have been presented?

-No, even if some evidence only and even if the first witness presented by the prosecution did not finish testifying
during the direct examination when the accused withdrew his plea of not guilty and substituted it to plea of guilty.

When is withdrawal of plea of not guilty still mitigating?

-If the accused withdrew plea of not guilty and then pleaded guilty before presentation of evidence because all the law
requires is plea of guilty prior to the presentation of evidence

What if accused pleaded not guilty during arraignment and then withdrew his plea of not guilty to guilty?
-It can still be mitigating if he withdrew before the fiscal could present his evidence

Is a conditional plea of guilty a mitigating circumstance?

-No. The Court points 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.

Can death penalty be reduced to life imprisonment because of plea of guilty even if done during the presentation of
evidence?
-Yes, even if he did it only during the continuation of the trial but it does not mitigate the liability. The admission of
guilt indicates his submission to the law and a moral disposition to reform.

What if the plea of guilty was made during the amended information?
-It is mitigating.

Ex: Trial already began on the original information for murder and frustrated murder. Lulu pleaded guilty for a lesser
offense. The prosecution amended the information to homicide and frustrated homicide and Lulu pleaded guilty.
 It was an entirely new information and no evidence was presented for the homicide before Lulu entered her plea
of guilty. (People vs Ortiz)

Can plea of guilty to lesser offense than that charged be mitigating?

-No because it must be to the offense charged.

Ex: Lulu was charged with double murder and moved the Court to permit her to withdraw her former plea of not guilty
to be substituted to 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.
 Lulu is entitled to mitigating circumstance of plea of guilty to the lesser offense charged in the amended
information.

Should the court still take the testimony of the accused even if he was charged with a grave offense and if he pleaded
guilty?
-Yes, because there is no law prohibiting the taking of testimony after a plea of guilty where a grave offense is charged.

What happens if the accused pleads guilty to a capital offense?

-The 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.

Can the accused present evidence in behalf of the prosecution?

-Yes.
SEARCHING INQUIRY

Guidelines in the conduct of a searching inquiry:

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
investigations
c. Under what conditions he was detained and interrogated during the investigations
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 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 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 re-enact the crime or furnish its missing details.

Why is plea of guilty mitigating?

-Because it is an act of repentance and respect for the law and it indicates a moral disposition in the accused, favorable
to his reform.

What is the basis of mitigating circumstance of voluntary surrender and plea of guilty?
-Lesser perversity of the offender.

Is plea of guilty mitigating in culpable felonies and crimes punished by special laws?
-NO.
-Culpable felonies: when there is a mitigating circumstance without any aggravating circumstance, the penalty is
minimum period of divisible penalty (Art. 64)
-Crime punished by special law: Penalty is by special laws and is usually not divisible into three periods.

Paragraph 8 – That the offender is deaf and dumb or otherwise suffering from some physical defect which thus restricts
his means of action, defense, or communication with his fellow beings.

A was charged with robbery in an inhabited house but she is deaf and dumb.
-She is entitled to the mitigating circumstance of being deaf and dumb.

“Physical defect” : being armless, cripple, or a stutterer, whereby his means to act, defend himself, or communicate
with his fellow beings are limited.

What if the deaf-mute or the blind is educated?

-The Code considers them as being on equal footing and does not distinguish between educated and uneducated deaf-
mute or blind persons.
What is the basis of paragraph 8?
-It 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 there is a diminution of that
element of voluntariness.

Paragraph 9 – Such illness of the offender as would diminish the exercise of the willpower of the offender without
however depriving him of consciousness of his acts.

Requisites of mitigating circumstance of illness of the offender (DD)

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

What if the offender completely lost the exercise of will-power?

-It may be an exempting circumstance.

Ex: Krissia becomes affected by dementia praecox or by manic depressive psychosis, during the period of excitement.
 She has no control of her acts and acted upon an irresistible homicidal impulse.

Is the illness of the mind (mental condition) considered to be mitigating circumstance?

-Yes, a diseased mind may give place to mitigation.

Ex: A mother, who under the influence of a puerperal fever, killed her child the day following her delivery.
 Mitigating circumstance of such illness of the mind.

Ex: A was suffering from some illness of the body, the mind, the nerves, and the moral faculty and committed the
crime.
 Mitigating circumstance of such illness of the mind.

Ex: A mistakenly believed that the killing of a witch was for the public good
 Mitigating circumstance of illness of the offender because those who have obsessions 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.

Ex: Lulu was mentally sane but she had misfortunes and weak character. She is suffering from a mild behavior disorder
as a consequence of the illness she had in her early life.
 Mitigating circumstance of physical defect or illness of the offender. (Par 8 or 9)

Ex: Lulu is feeble-minded.

 Mitigating circumstance of dumb in par 8 or illness in par 9.

Ex: Lulu had some impairment of her mental faculties since she suffered from chronic mental disease called schizo-
affective disorder or psychosis. This did not deprive her of her intelligence or consciousness of her acts. Schizo-
affective disorder or psychosis may be an illness which diminishes the exercises of her willpower but not depriving
her of consciousness of her acts.
 Mitigating circumstance but not exempt from criminal liability.

What is the basis of paragraph 9?

-Diminution of intelligence and intent.
Paragraph 10 – And, finally, any other circumstances of a similar nature and analogous to those abovementioned.

What does this paragraph refer to?

-The court is authorized to consider in favor of the accused “any other circumstance of a similar nature and analogous
to those mentioned” in paragraphs 1 to 9.

What is similar to over 70 years of age?

-Over 60 years old with failing sight is analogous to mitigating circumstance of over 70 years of age

Outraged feeling of owner of animal taken for ransom

-Analogous to vindication of a grave offense

Ex: Nicole took the carabao of Aliya and held it for ransom and failed to fulfill her promise to pay its value after the
carabao died. (People vs Monaga)
 Aliya is entitled to the mitigating circumstance of analogous to, if not the same as, vindication of a grave offense

Outraged feeling of creditor

-Similar to passion and obfuscation

Ex: Sofia killed her debtor Angelica, who tried to escape and refused to pay her debt.
 Sofia is entitled to mitigating circumstance similar to passion and obfuscation

Impulse of jealous feeling

-Similar to passion and obfuscation

Ex: Aliya (accused) committed slander by charging Diana (victim) with being the concubine of Aliya’s husband under
the impulse of a jealous feeling apparently justified, though later discovered to be unfounded, because Diana, as
verified by physical examination, was a virgin. (People vs Ubengen)
 Aliya is entitled to mitigating circumstance similar to passion and obfuscation.

Ex: Idloy boxed Luis during a dance in front of many people. Idloy was an ex-soldier, well-known and respected, and
produced rancor in the breast of Luis who must have felt deeply insulted. Luis vindicated himself by committing the
crime.
 Luis is entitled to mitigating circumstance similar to passion and obfuscation.

Manifestations of Battered Wife Syndrome

-Analogous to an illness that diminishes the exercise of will power without, however, depriving her of consciousness
of her acts

What happens if a woman has a Battered Wife Syndrome?

-The cyclical nature and the severity of the violence inflicted upon the wife resulted in:
“cumulative provocation which broke down her psychological resistance and natural self-control”
And “difficulty in concentrating or impairment of memory”
-Diminution of her freedom of action, intelligence, or intent

Esprit de corps
-Similar to passion and obfuscation

Ex: Many soldiers took part in the killing of Rodrigo and responded to the call and appeal of their lieutenant who
urged them to avenge the outrage committed by Rodrigo who summarily ejected certain soldiers from the dance hall.
 Rodrigo’s act is considered as a grave insult against their organization. (People vs Villamora)

Voluntary restitution of stolen party

-Similar to voluntary surrender

Ex: Voluntary restitution of the property stolen by Nicole or immediately reimbursing the amount malversed.
 Nicole is entitled to mitigating circumstance analogous to voluntary surrender. (People vs Luntao)

Testifying for prosecution

 Analogous to a plea of guilty

Ex: Lorenzo testified for the prosecution, without previous discharge.

 Lorenzo is entitled to mitigating circumstance analogous to a plea of guilty.

Extreme poverty and necessity

-Similar to incomplete justification based on state of necessity under paragraph 1

Ex: Aliya (accused) was in extreme poverty and economic difficulties. She was forced to pilfer/steal two sacks of
paper at P10.00 from the Customhouse. She sold the two sacks of paper for P2.50.
 Aliya is entitled to mitigating circumstance of incomplete justification on state of necessity because the right to life
is more sacred than a mere property right. This is not to encourage theft, but merely to dull somewhat the keen and
pain-producing edges of the stark realities of life. (People vs Macbul)

Can extreme poverty mitigate a crime against property, such as theft?

-Yes.

Can extreme poverty mitigate a crime of violence, such as murder?

-No.

Ex: Aliya impoverished/bankrupted himself and lost his gainful occupation by committing crimes and not driven to
crime due to want and poverty.
 Not mitigating circumstance.

Restitution in malversation case

-Only a mitigating circumstance, not a defense for exoneration in malversation, because damage is not an element of
malversation.

Can full restitution of the amount malversed exonerate/vindicate an accused?

-No because payment is not one of the elements of extinction of criminal liability.

Can refund of the sum misappropriated even before the commencement of criminal prosecution exempt the accused?
-No, under the law, refund of the sum misappropriated does not exempt the guilty person from criminal liability.

What can payment of the amount malversed serve?

-At most, it will only serve as a mitigating circumstance similar to voluntary surrender

NOT MITIGATING

Mistake in killing the wrong man

-Not mitigating

Parricide for husband being a bully, bad, and a rascal

-Not mitigating circumstance of a similar nature and analogous to those mentioned

Falsification
-Not mitigating

Ex: Aliya was charged with the crime of falsification, pleaded guilty and invoked as mitigating circumstance the lack
of irreparable material damage.
 Not mitigating circumstance in the RPC nor it is considered as similar in nature as those prescribed as mitigating
circumstances.
Not resisting arrest/Yielding to arrest without the slightest attempt
-Not analogous to voluntary surrender

Condition of running amuck (behaving in out of control or unrestrained manner)

-Not mitigating and not one by analogy

Ex: The defense argued that running amuck is a cult among the Moros that is age-old and deeply rooted.
 Mitigating circumstances must be applied alike to all criminals of any religion.

PERSONAL TO THE OFFENDERS

Can there be mitigating circumstances personal to the offenders?
-Yes, if they arose from:
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
 These shall only serve to mitigate the liability of the principals, accomplices, and accessories as to whom such
circumstances are attendant.

From the moral attributes of the offender

Ex: A and B killed C, A acting under an impulse which produced obfuscation. The circumstance of obfuscation arose
from the moral attribute of A.
 Mitigate the liability only of A and not B.

From the private relations of the offender with the offended party
Ex: Nikko, son of Alan, committed robbery against Alan, while Iggi, a stranger, bought the property taken by Nikko
from Alan, knowing that the property was the effect of the crime of robbery.
 The circumstance of relationship (Art 15) arose from the private relation of the offender Nikko with the offended
party Alan and shall mitigate the liability of only Nikko, not Iggi.
 Iggi is an accessory that is not attendant to the circumstance.

From any other personal cause

Ex: Alexis, a 16 yr old and acting with discernment, inflicted serious physical injuries on Alyssa. Bianca, seeing what
Alexis had done on Alyssa, kicked Alyssa concurring in the criminal purpose of Alyssa and cooperating by
simultaneous act.
 The circumstance of minority arose from other personal cause and only mitigate Alexis, not Bianca.
 Bianca is an accomplice not attendant to the circumstance.

NOT EXEMPTING NOR MITIGATING

1. Mistake in the blow or aberration ictus  penalty is even higher
2. Mistake in the identity of the victim  accused is criminally liable even if the wrong done is different from
that which is intended
3. Entrapment of the accused
4. Accused is over 18 years of age
5. Performance of righteous action  no matter how meritorious it may be, or if he saved lives of a thousand
persons, if he caused the killing of a single human being, he is criminally liable